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S. HRG. 107–324

NOMINATIONS OF THE 107th CONGRESS,

FIRST SESSION

HEARINGS

BEFORE THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

ON

MAY 17, 2001: LINDA FISHER, TO BE DEPUTY ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY; JEFFREY HOLMSTEAD, TO BE ASSISTANT ADMINISTRATOR FOR AIR AND RADIATION, ENVIRONMENTAL PROTECTION AGENCY; STEPHEN JOHNSON, TO BE ASSISTANT ADMINISTRATOR FOR TOXIC SUBSTANCES, ENVIRONMENTAL PROTECTION AGENCY; AND JAMES CONNAUGHTON, TO THE

COUNCIL ON ENVIRONMENTAL QUALITY

JULY 25, 2001: DAVID A. SAMPSON, TO BE ASSISTANT SECRETARY FOR ECONOMIC DEVELOPMENT, DEPARTMENT OF COMMERCE; ROBERT FABRICANT, TO

BE GENERAL COUNSEL, ENVIRONMENTAL PROTECTION AGENCY; GEORGE TRACY

MEHAN III, TO BE ASSISTANT ADMINISTRATOR FOR WATER, ENVIRONMENTAL PROTECTION AGENCY; JUDITH ELIZABETH AYRES, TO BE ASSISTANT ADMINISTRATOR FOR INTERNATIONAL ACTIVITIES, ENVIRONMENTAL PROTECTION AGENCY;

DONALD R. SCHREGARDUS, TO BE ASSISTANT ADMINISTRATOR FOR ENFORCEMENT AND COMPLIANCE ASSURANCE, ENVIRONMENTAL PROTECTION AGENCY

SEPTEMBER 21, 2001: BRIG. GEN. EDWIN J. ARNOLD, TO THE MISSISSIPPI

RIVER COMMISSION; BRIG. GEN. CARL A. STROCK, TO THE MISSISSIPPI RIVER

COMMISSION; NILS J. DIAZ, TO BE COMMISSIONER, NUCLEAR REGULATORY COMMISSION; PATRICK HAYES JOHNSON, TO BE FEDERAL COCHAIRPERSON, DELTA

REGIONAL AUTHORITY; HAROLD CRAIG MANSON, TO BE ASSISTANT SECRETARY

FOR FISH, WILDLIFE, AND PARKS, DEPARTMENT OF THE INTERIOR; MARIANNE

LAMONT HORINKO, TO BE ASSISTANT ADMINISTRATOR FOR SOLID WASTE AND

EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY; PAUL MICHAEL

PARKER, TO BE ASSISTANT SECRETARY OF THE ARMY FOR CIVIL WORKS; AND

MARY E. PETERS, TO BE ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION,

DEPARTMENT OF TRANSPORTATION

OCTOBER 17, 2001: WILLIAM W. BAXTER, TO THE TENNESSEE VALLEY AUTHORITY; KIMBERLY TERESE NELSON, TO BE ASSISTANT ADMINISTRATOR FOR

ENVIRONMENTAL INFORMATION, ENVIRONMENTAL PROTECTION AGENCY; AND STEVEN A. WILLIAMS, TO BE DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED SEVENTH CONGRESS1

FIRST SESSION: JANUARY 25–JUNE 6, 2001

BOB SMITH, New Hampshire, Chairman

HARRY REID, Nevada, Ranking Democratic Member

JOHN W. WARNER, Virginia

JAMES M. INHOFE, Oklahoma

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

LINCOLN CHAFEE, Rhode Island

ROBERT F. BENNETT, Utah

BEN NIGHTHORSE CAMPBELL, Colorado

MAX BAUCUS, Montana

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

JON S. CORZINE, New Jersey

DAVE CONOVER, Republican Staff Director

ERIC WASHBURN, Democratic Staff Director

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION: JULY 10–DECEMBER 20, 2001

JAMES M. JEFFORDS, Vermont, Chairman

MAX BAUCUS, Montana

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILARY RODHAM CLINTON, New York

JON S. CORZINE, New Jersey

BOB SMITH, New Hampshire

JOHN W. WARNER, Virginia

JAMES M. INHOFE, Oklahoma

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

LINCOLN CHAFEE, Rhode Island

ARLEN SPECTER, Pennsylvania

BEN NIGHTHORSE CAMPBELL, Colorado

KEN CONNOLLY, Majority Staff Director

DAVE CONOVER, Minority Staff Director

1NOTE: During the first session of the 107th Congress, the committee roster

appeared in the Congressional Record on January 25, 2001.

On June 6, 2001, the majority of the Senate changed from Republican to

Democrat when Senator James M. Jeffords, of Vermont, changed party

affiliation from Republican to Independent. Senator Harry Reid, of Nevada, assumed the chairmanship of the committee. On July 10, 2001,

Senator Jeffords was appointed as chairman of the committee by the

Democratic Leader.

(II)

(III)

CONTENTS

Page

MAY 17, 2001

OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana ............................ 27

Bond, Hon. Christopher S., U.S. Senator from the State of Missouri ............... 8

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware ................. 8

Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New York ....... 21

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma ................... 6

Reid, Hon. Harry, U.S. Senator from the State of Nevada ................................ 4

Smith, Hon. Bob, U.S. Senator from the State of New Hampshire ................... 1

Voinovich, Hon. George V., U.S. Senator from the State of Ohio ........................ 26

WITNESSES

Connaughton, James, Nominated to be a Member of the Council on Environmental Quality ..................................................................................................... 14

Committee questionnaire ................................................................................. 104

Prepared statement .......................................................................................... 102

Responses to additional questions from:

Senator Baucus .......................................................................................... 114

Senator Reid .............................................................................................. 115

Fisher, Linda, Nominated to be Deputy Administrator, Environmental Protection Agency ........................................................................................................... 9

Committee questionnaire ................................................................................. 30

Prepared statement .......................................................................................... 28

Responses to additional questions from:

Senator Baucus .......................................................................................... 41

Senator Reid .............................................................................................. 38

Senator Voinovich ..................................................................................... 40

Senator Wyden .......................................................................................... 43

Holmstead, Jeffrey, Nominated to be Assistant Administrator, Office of Air

and Radiation, Environmental Protection Agency ............................................ 11

Committee questionnaire ................................................................................. 45

Letters, Comments on PM standards ............................................................. 72

Prepared statement .......................................................................................... 44

Responses to additional questions from:

Senator Baucus .......................................................................................... 69

Senator Clinton ......................................................................................... 70

Senator Corzine ......................................................................................... 71

Senator Lieberman .................................................................................... 69

Senator Reid .............................................................................................. 56

Senator Smith ............................................................................................ 66

Senator Voinovich ..................................................................................... 67

Statement, Testimony before House committee on air quality standards ... 61

Johnson, Stephen, Nominated to be Assistant Administrator, Office of Toxic

Substances, Environmental Protection Agency ................................................. 13

Committee questionnaire ................................................................................. 83

Prepared statement .......................................................................................... 81

Responses to additional questions from:

Senator Baucus .......................................................................................... 100

Senator Clinton ......................................................................................... 102

Senator Reid .............................................................................................. 98

Senator Smith ............................................................................................ 96

Page

IV

Johnson, Stephen, Nominated to be Assistant Administrator, Office of Toxic

Substances, Environmental Protection Agency—Continued

Responses to additional questions from—Continued

Senators Smith/Reid ................................................................................. 95

Senator Wyden .......................................................................................... 101

ADDITIONAL MATERIAL

Statement, nomination of Stephen Johnson, Senator Mikulski .......................... 2

JULY 25, 2001

OPENING STATEMENTS

Bond, Hon. Christopher S., U.S. Senator from the State of Missouri ............... 120

Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island ................. 125

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma ................... 123

Jeffords, Hon. James M., U.S. Senator from the State of Vermont ................... 117

Smith, Hon. Bob, U.S. Senator from the State of New Hampshire ................... 120

Voinovich, Hon. George V., U.S. Senator from the State of Ohio ...................... 122

WITNESSES

Ayres, Judith Elizabeth, Nominated to be Assistant Administrator for the

Office of International Activities, Environmental Protection Agency .............. 131

Committee questionnaire ................................................................................. 179

Prepared statement .......................................................................................... 177

Fabricant, Robert, Nominated to be General Counsel, Environmental Protection Agency ........................................................................................................... 127

Committee questionnaire ................................................................................. 149

Prepared statement .......................................................................................... 148

Frost, Hon. Martin, U.S. Representative from the State of Texas ..................... 118

Hutchison, Hon. Kay Bailey, U.S. Senator from the State of Texas ................. 117

Mehan, George Tracy, III, Nominated to be Assistant Administrator for the

Office of Water, Environmental Protection Agency ........................................... 128

Committee questionnaire ................................................................................. 159

Prepared statement .......................................................................................... 157

Responses to additional questions from:

Senator Graham ........................................................................................ 176

Senator Smith ............................................................................................ 175

Senator Voinovich ..................................................................................... 177

Sampson, David A., Nominated to be Assistant Secretary for Economic Development, Department of Commerce.................................................................. 119, 125

Committee questionnaire ................................................................................. 141

Prepared statement .......................................................................................... 138

Responses to additional questions from Senator Smith ................................ 146

Schregardus, Donald R., Nominated to be Assistant Administrator for the

Office of Enforcement and Compliance Assurance, Environmental Protection Agency ........................................................................................................... 135

Committee questionnaire ................................................................................. 191

Prepared statement .......................................................................................... 189

Responses to additional questions from:

Senator Boxer ............................................................................................ 198

Senator Chafee .......................................................................................... 201

Senator Corzine ......................................................................................... 201

SEPTEMBER 21, 2001

OPENING STATEMENTS

Jeffords, Hon. James M., U.S. Senator from the State of Vermont ................... 205

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware ................. 222

Page

V

WITNESSES

Arnold, Brigadier General Edwin J., Nominated to be a Member and President of the Mississippi River Commission ......................................................... 208

Committee questionnaire ................................................................................. 230

Prepared statement .......................................................................................... 228

Cochran, Hon. Thad, U.S. Senator from the State of Mississippi ...................... 206

Diaz, Nils J., Nominated to be a Member of the Nuclear Regulatory Commission ........................................................................................................................ 209

Committee questionnaire ................................................................................. 239

Prepared statement .......................................................................................... 237

Responses to additional questions from:

Senator Corzine ......................................................................................... 268

Senator Reid .............................................................................................. 270

Horinko, Marianne Lamont, Nominated to be Assistant Administrator, Office

of Solid Waste and Emergency Response, Environmental Protection Agency 216

Committee questionnaire ................................................................................. 301

Prepared statement .......................................................................................... 299

Responses to additional questions from:

Senator Bond ............................................................................................. 315

Senator Boxer ............................................................................................ 318

Senator Clinton ......................................................................................... 320

Senator Corzine ......................................................................................... 319

Senator Jeffords ......................................................................................... 311

Senator Smith ............................................................................................ 313

Johnson, Patrick Hayes, Nominated to be Federal Cochairperson, Delta Regional Authority ................................................................................................... 209

Committee questionnaire ................................................................................. 274

Prepared statement .......................................................................................... 272

Responses to additional questions from Senator Jeffords ............................. 288

Manson, Harold Craig, Nominated to be Assistant Secretary for Fish, Wildlife, and Parks, Department of the Interior ....................................................... 214

Committee questionnaire ................................................................................. 322

Prepared statement .......................................................................................... 320

Responses to additional questions from:

Senator Baucus .......................................................................................... 333

Senator Boxer ............................................................................................ 334

Senator Jeffords ......................................................................................... 331

Senator Smith ............................................................................................ 334

Parker, Paul Michael, Nominated to be Assistant Secretary of the Army

for Civil Works, Department of the Army .......................................................... 218

Committee questionnaire ................................................................................. 338

Prepared statement .......................................................................................... 337

Responses to additional questions from:

Senator Baucus .......................................................................................... 346

Senator Boxer ............................................................................................ 349

Senator Clinton ......................................................................................... 352

Senator Corzine ......................................................................................... 351

Senator Daschle ......................................................................................... 352

Senator Graham ........................................................................................ 348

Senator Smith ............................................................................................ 344

Senator Wyden .......................................................................................... 347

Peters, Mary E., Nominated to be Administrator of the Federal Highway

Administration, Department of Transportation ................................................ 219

Committee questionnaire ................................................................................. 355

Letter, Representative Bob Stump .................................................................. 354

Prepared statement .......................................................................................... 352

Responses to additional questions from:

Senator Jeffords ......................................................................................... 363

Senator Lieberman .................................................................................... 366

Strock, Brigadier General Carl A., Nominated to be a Member of the Mississippi River Commission ................................................................................... 210

Committee questionnaire ................................................................................. 291

Prepared statement .......................................................................................... 289

ADDITIONAL MATERIAL

Letter, nomination of Mary Peters, Rep. Bob Stump ........................................... 354

Page

VI

Statements:

Lincoln, Hon. Blanche Lambert, U.S. Senator from the State of Arkansas 227

McCain, Hon. John, U.S. Senator from the State of Arizona ....................... 226

OCTOBER 17, 2001

OPENING STATEMENTS

Jeffords, Hon. James M., U.S. Senator from the State of Vermont ................... 367

WITNESSES

Baxter, William W., Nominated to be a Member of the Board of Directors

of the Tennessee Valley Authority ...................................................................... 368

Committee questionnaire ................................................................................. 384

Prepared statement .......................................................................................... 382

Responses to additional questions from:

Senator Bunning ....................................................................................... 390

Senator Jeffords ......................................................................................... 389

Senator Wyden .......................................................................................... 392

Nelson, Kimberly Terese, Nominated to be Assistant Administrator, Office

of Environmental Information, Environmental Protection Agency ................. 371

Committee questionnaire ................................................................................. 395

Prepared statement .......................................................................................... 392

Responses to additional questions from:

Senator Bond ............................................................................................. 405

Senator Smith ............................................................................................ 403

Roberts, Hon. Pat, U.S. Senator from the State of Kansas ................................ 373

Thompson, Hon. Fred, U.S. Senator from the State of Tennessee .................... 367

Williams, Steven A., Nominated to be Director, U.S. Fish and Wildlife Service, U.S. Department of the Interior ................................................................... 374

Committee questionnaire ................................................................................. 408

Prepared statement .......................................................................................... 406

Responses to additional questions from:

Senator Baucus .......................................................................................... 419

Senator Boxer ............................................................................................ 419

Senator Chafee .......................................................................................... 418

Senator Lieberman .................................................................................... 423

Senator Smith ............................................................................................ 417

ADDITIONAL MATERIAL

Frist, Hon. Bill, U.S. Senator from the State of Tennessee ................................. 381

(1)

NOMINATIONS OF THE 107th CONGRESS,

FIRST SESSION

THURSDAY, MAY 17, 2001

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

The committee met, pursuant to notice, at 9:30 a.m. in room 628,

Senate Dirksen Building, Hon. Bob Smith (chairman of the committee) presiding.

CONSIDERATION OF THE NOMINATIONS OF LINDA FISHER,

JEFFREY HOLMSTEAD, STEPHEN JOHNSON, AND JAMES

CONNAUGHTON

Present: Senators Smith, Reid, Inhofe, Carper, Bond and Clinton.

OPENING STATEMENT OF HON. BOB SMITH, U.S. SENATOR

FROM THE STATE OF NEW HAMPSHIRE

Senator SMITH. The nomination hearing will come to order.

I would say good morning to the witnesses and our apologies for

being late but the Senate had other ideas for us this morning as

we had votes on the Senate floor.

I’m going to give each of you an opportunity in just a moment

to introduce your families who are here but first, by way of brief

introduction for each of you, the purpose today is consider all four

of your nominations for various positions at EPA—Linda Fisher, as

Deputy Administrator of the EPA; Jeffrey Holmstead for the position of Assistant Administrator for Air and Radiation; Stephen

Johnson to serve as Assistant Administrator for Toxic Substances;

and finally Jim Connaughton, nominated to be a member of the

Council on Environmental Quality. I’d like to thank them for joining us here today and for their willingness to meet with as many

Senators and their staffs as possible since the President sent us

their names. They are all very well qualified and I can say from

my meetings with them, they are also quality individuals with

quality families who we will meet here in a moment.

The Office of Government Ethics has certified that all four of

these nominees’ financial disclosure forms indicate that they are in

compliance with all applicable laws and regulations governing conflicts of interest.

Linda Fisher, as President Bush’s nominee, is no stranger to the

Agency. She has served in various positions in both the Reagan

and Bush Administrations and while there, Ms. Fisher was awarded the EPA Award for Sustained Outstanding Contributions to

2

International Environmental Protection in 1991 and the EPA Outstanding Service Award in 1984.

After leaving EPA, she joined the private sector working for

Monsanto, a company widely recognized for forward thinking on

environmental matters. She most recently held the title of Vice

President for Government Affairs at Monsanto.

She holds a BA from Miami University, an MBA from George

Washington and earned her law degree from the Ohio State University.

Jeffrey Holmstead, the nominee to be the new EPA Assistant Administrator for the Office of Air and Radiation also served in the

first Bush Administration in the White House Counsel’s Office. In

his position as Assistant Counsel Mr. Holmstead’s primary focus

was environmental law, most recently working on the implementation of the Clean Air Act. He also worked with the Reactivity Research Working Group and has been very involved in their efforts

exploring new and more effective approaches for controlling ground

level ozone.

Mr. Holmstead holds a BA and an AA from Brigham Young, as

well as a law degree from Yale.

Stephen Johnson has been nominated to serve as EPA’s Assistant Administrator for the Office of Prevention, Pesticides and

Toxics. He has 25 years of direct experience with the issues facing

the Office of Prevention, Pesticides and Toxic Substances. He

joined EPA in 1979 in the position of pathologist in that same office. Most recently he has served as Acting Assistant Administrator

in that office.

For his service, he has received numerous annual performance

awards, Special Act Award, 1991; Meritorious Presidential Rank

Award, 1997; and has been nominated to receive the Distinguished

Presidential Rank Award.

Mr. Johnson earned a BA from Taylor University and a BS from

George Washington.

I would ask unanimous consent that a letter of support for Mr.

Johnson from Senator Mikulski be entered in the record at this

time.

[The information referred to follows:]

U.S. SENATE,

Washington, DC 20510, May 17, 2001.

Hon. BOB SMITH, Chairman,

Committee on Environment and Public Works,

U.S. Senate,

Senate Office Building,

Washington, DC 20510.

DEAR SENATORS SMITH AND REID: I regret that I could not be there in person today

to introduce Stephen Johnson, and I hope you will share this letter with the members of your committee as they consider Mr. Johnson’s nomination.

As you know, Mr. Johnson has been nominated to serve as EPA’s Assistant Administrator for the Office of Prevention, Pesticides, and Toxic Substances. He is currently acting in this position, where he has the important responsibility of implementing our nation’s pesticide, toxic substance, and pollution prevention laws.

Mr. Johnson is a lifelong resident of Maryland, and he has worked in public service for over 20 years. In his many years of service to EPA, he has held positions

of increasing responsibility and earned several awards of distinction. His dedication

and service to EPA demonstrates his commitment to upholding the Agency’s critical

mission.

3

I believe that Mr. Johnson’s nomination represents a unique accomplishment for

a career civil servant, and I hope that the committee will give him every appropriate

consideration.

Sincerely,

BARBARA A. MIKULSKI,

United States Senator.

Senator SMITH. Finally, James Connaughton has been nominated

to be a member of the President’s Council for Environmental Quality. Mr. Connaughton has been a partner in the Environmental law

firm of Sidley Austin Brown & Wood since 1991. He has spent his

career working on a variety of environmental issues including compliance, environmental management, legislative issues and damage

assessment. He has substantial experience with handling ecological

risk and natural resource damage assessment and is knowledgeable in the implementation of local, State and Federal laws pertaining to environmental risk assessment.

Before joining Sidley Austin, Mr. Connaughton clerked for the

Honorable Marvin Aspen, U.S. District Court, Illinois.

He received his undergraduate degree from Yale and his law degree from Northwestern.

Welcome to all of you.

Before I turn to Senator Reid and other members for opening

statements, I would ask each of you at this time if you have family

members here to please feel free to introduce them. We will start

with you, Ms. Fisher.

Ms. FISHER. Thank you, Mr. Chairman.

I appreciate the fact we can go ahead and introduce the children

first. They have all pledged to perfect behavior throughout the

hearing. We will keep our fingers crossed.

Senator SMITH. That may not be true with the Senators.

[Laughter.]

Ms. FISHER. Let me first introduce my two children who are joining me today, my son, Keenan, 7 years old and a first grader at

St. Patrick. As you can tell from his build, he is a hockey player

and likes baseball and basketball. Next to him is my daughter,

Kelly. Kelly is a kindergartener at St. Patrick’s and a 6-year-old.

She likes gymnastics and soccer.

Senator SMITH. Mr. Holmstead?

Mr. HOLMSTEAD. I am delighted to be able to introduce my children as well. I am afraid we’re running short on granola bars so

I don’t know how long they’ll last before they need to excuse themselves.

Let me first introduce my wife, Lisa Holmstead who is a full-time

mother of our four children. Our oldest is Emily, who is 11 and a

fifth grader at the Rachel Carson Elementary School in Gaithersburg, Maryland. Her nickname is the reading machine. Next is my

8-year-old Eric. He’s a second grader at the Rachel Carson Elementary School. He has an orange cast on his foot as a result of a

biking accident but he’s hobbling around pretty well. Next is my 5-

year-old daughter Elizabeth, who is in kindergarten and who loves

to have breakfast with her dad. Finally is my 2-year-old son, Eli

who is very happy to be here. He’s being held by my mother, his

grandmother, Mellie Holmstead and my father who is seated next

to her, Kay Holmstead. Both of them are visiting for this event

from Bolder, Colorado.

4

Senator SMITH. Nice to have you here.

Mr. Johnson?

Mr. JOHNSON. Thank you, Mr. Chairman.

I’d like to introduce my family as well. My wife, Debbie, is with

me today and our three children and our son-in-law. Our youngest

daughter is Allison. She’s a freshman at Taylor University in Indiana and our son, Matthew, who is a junior at Taylor University.

Their final exams are next week, so they really enjoyed the opportunity to get out of class for a day to join us here.

Senator SMITH. Would you have been here if it had been next

week?

[Laughter.]

Mr. JOHNSON. And our oldest daughter, Kerry and our son-inlaw, Jeremy, are with us today as well.

It’s also my pleasure—and I’m not sure how unusual or routine

this is—but my mother-in-law and father-in-law are here today. I’d

like to introduce my father-in-law, John Jones and my mother-inlaw, June Jones.

For the record, I would like to note that believe I am in good

standing as a son-in-law, at least as of this morning.

Senator SMITH. Mr. Connaughton?

Mr. CONNAUGHTON. Mr. Chairman, first, I’ll introduce my wife,

Susanna Connaughton, and our two children, Spencer, who is nine

and a third grader at Sidwell Friends School; and Grace, who is six

and she’s at the Norwood School.

Also with me are my parents, Jim and Monica Connaughton. You

should know my parents came to this country shortly before I was

born from Ireland, so I know this is a special moment for them.

Also here is my mother-in-law, Stacey Bolten. I’m also in good

standing with her. She lives next door to us so I’d better be.

My sister, Eileen Hart, is here with my nephew, T.J., my niece,

Tara, and my other nephew, Michael.

Not here in person, but here in spirit are my sister, Bernadette;

my brother, Paul; my brother, John; their spouses and an additional ten nieces and nephews. There also is a whole crowd back

in Ireland who are very eager to see the report of this hearing.

Senator SMITH. Welcome to all of you. It’s nice to have you here.

It’s nice to see you here to support your family member to have the

honor of being nominated for a position in government. A lot of us

feel it is honorable service and in spite of what you read, there are

a lot of fantastic people who serve and make great sacrifices to

serve in government.

Senator Reid?

OPENING STATEMENT OF HON. HARRY REID, U.S. SENATOR

FROM THE STATE OF NEVADA

Senator REID. Thank you, Mr. Chairman.

Senator Mikulski has asked us to enter into the record a very

nice letter that she wrote on your behalf, Mr. Johnson, culminating

with ‘‘I believe Mr. Johnson’s nomination represents a unique accomplishment for a career civil servant. I hope the committee will

give him every appropriate consideration.’’ I would ask permission that my full statement be made a part

of the record.

5

Senator SMITH. Without objection.

[The prepared statement of Senator Reid follows:]

STATEMENT OF HON. HARRY REID, U.S. SENATOR FROM THE STATE OF NEVADA

Thank you, Mr. Chairman for holding this hearing this morning. I know the Administration, and in particular, Administrator Whitman, are anxious to get their

people in place to help with the important issues ahead.

As many of you know, I have sent a letter to the President and Administrator

Whitman informing them that I intend to hold Administration nominations until

the radiation standard for Yucca Mountain, including the groundwater standard, is

published in the Federal Register.

The proposed Yucca Mountain Repository would be located approximately 90

miles from Las Vegas, Nevada’s largest and expanding city. In addition to being

home to more than 1.3 million Nevadans, Las Vegas and its neighboring communities draw more than 30 million visitors each year. Contamination of groundwater

or the surrounding environment from radiation would create an unacceptable

human health risk and would threaten the tourism and recreation-based economy,

which provides jobs and important tax revenue to Nevada and its communities.

The NRC must determine whether Yucca Mountain will meet radiation release

standards established by the EPA under authority granted by the 1992 Energy Policy Act. The Act requires EPA to set the standards based on, and consistent with,

the findings and recommendations of the National Academy of Sciences’ ‘‘Technical

Bases for Yucca Mountain Standards’’ report. EPA not only considered the report

but also public comments received on the report from public hearings as well as additional written comments. EPA also considered previous applicable regulations

such as the generic standards for radioactive wastes used at the Waste Isolation

Pilot Project in New Mexico.

EPA held public hearings in Nevada and Washington, DC. in October 1999 and

had a 90-day comment period in late 1999.

Although the EPA submitted a final rule to the Office of Management and Budget

(OMB) in late January 2001, the standards have not been published.

I am concerned that the Nuclear Regulatory Commission and the Department of

Energy are attempting to weaken the provisions of the EPA standards through the

interagency review. The DOE and NRC are legally responsible for site recommendation and licensing respectively, NOT radiation standards.

There is a clear separation of authority. Through their actions, the DOE and NRC

may give the impression that they are seeking to establish limits they believe Yucca

would satisfy. This would undermine the public’s confidence in the objective, scientific nature of the site recommendation and standard setting processes and set a

worrisome precedent for EPA’s ability to conduct its statutory responsibilities using

sound science.

This standard is not only important to the citizen’s of my State of Nevada, it is

important for all of us because, under the law, EPA—the Agency responsible for protecting our environment—should be allowed to do just that—protect the environment.

The chairman and I have talked and, at this time, I will not object to reporting

nominees from the Environment and Public Works Committee.

I have also talked to Administrator Whitman. I have agreed to support the nomination of Ms. Fisher, who is nominated to be Administrator Whitman’s Deputy, because the Administrator agrees with me and has assured me that she will do everything she can to get the EPA standard for Yucca Mountain published.

However, until the standard for Yucca Mountain that represents the best judgment of the EPA—not the NRC or DOE—is published in the Federal Register, I will

hold other Administration nominees from moving out of the Senate.

I would like to thank Mr. Holmstead for responding to questions I had before this

hearing and would like to ask unanimous consent that the questions and his responses appear in the hearing record at the appropriate place.

We also have some additional information that we have requested Mr. Holmstead

to supply to the committee and hope that we can get that information soon and review it expeditiously.

With that, Mr. Chairman, I look forward to hearing from the nominees here

today.

Senator REID. I want to say to the nominees we have had an ongoing battle the past several months with setting groundwater

standards at Yucca Mountain, the site of the proposed repository

for nuclear wastes. I have had a number of conversations with the

6

Administrator, Governor Whitman, and I last week made an announcement that we as Democrats wouldn’t show up at this hearing but I received a call from Governor Whitman indicating that

she was unable to do her work because she is understaffed and she

needed somebody to help her. As a result of that, we are going to

move very quickly on Ms. Fisher and hold up the other three until

the groundwater standards are issued. Governor Whitman indicated she could do that.

I say for your families, this is what government politics I guess

is all about. There’s nothing wrong with it except I’m concerned

that the Nuclear Regulatory Commission, the Department of Energy and some in the Administration are trying to weaken the provisions of the EPA standards through the interagency review. The

DOE and NRC are legally responsible for site recommendation and

licensing respectively, not setting radiation standards.

This is so important that we have even had a vote on a matter

in relation to this on the Senate floor. It was vetoed by the President. We had enough votes to sustain the President’s veto, so this

is a matter of some concern.

I’m confident that Governor Whitman will move this along quickly. In my last conversation with her, I told her I’d just done an

interview where I said nice things about her and she said, ‘‘That’s

going to get me in more trouble.’’ So I think I’ll say some real bad

things about her today and maybe that will help her with getting

some things done.

I am impressed with the qualifications of each of the individuals

here. I especially appreciate Mr. Holmstead. We had some questions and he had to grant a waiver so that we could get some of

this information. It appears none of it is going to be of any consequence but it is something we needed to do to look at these

records. We appreciate your cooperation.

Thank you, Mr. Chairman, for your punctuality in holding this

hearing. As you know, we had two votes on the education bill, the

Elementary and Secondary Education bill today and we are moving

now onto the tax bill. I am responsible for helping to manage that,

so I will have to depart, recognizing this hearing is important. We

are going to do everything we can to move this along with the cooperation of Linda Fisher and Governor Whitman.

Senator SMITH. Thank you, Senator Reid.

For the witnesses and their families’ benefit, it is the action of

the Senate unfortunately that there are so many things going on

and members do come in and out. Sometimes we have two or three

committee meetings at the same time. Don’t ask why that happens

because I don’t know but it does and we haven’t been able to figure

out how to be two places at the same time.

Senator Inhofe?

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. Thank you, Mr. Chairman.

I’ll say to the families who are here today that it’s extraordinary

that we have a lovefest like this. It isn’t always the case, it’s just

that we have such exceptional people. I would repeat everything

7

good and you and I thank all of you for taking the time to come

by and visit personally.

Over the last few years, I’ve had several serious concerns, including an increase in the volume of the cost of regulations and the diminishing returns caused by regulators chasing smaller and smaller risks at greater and greater costs to businesses and families.

I’m going to mention about four areas and if you will just take

some notes and either address these areas in your opening statement or when you respond to questions, or for the record at a future time, maybe when you get back. I would like to have your

opinions in all these areas.

The first is transparency. Too often the EPA’s regulatory system

is slow, sloppy, secretive and they have not done things out in the

open. I’d like to make sure we have the opportunity to have the entire public be able to know what’s going on, what regulations are

out there, what rules are being suggested, and have everyone be

heard.

Second is cost of benefit. I think it’s time to reframe the debate

on environmental regulation by focusing on making smarter decisions to maximize benefits, minimize costs and save more lives.

There was a Harvard study not long ago that came to the conclusion that roughly 60,000 lives are lost each year due to the current

regulatory system, chiefly because billions of dollars are squandered on eliminating negligible and nonexistent risk while failing

to protect the public. I would like to have you take the time to look

at this study—we’ll be glad to supply it to you from our office—and

I’d like to get the response of each of you to that.

Sound science, at our Tuesday budget hearing, I was very encouraged by Administrator Whitman’s comments on sound science.

She said, ‘‘The environmental policy should always be based on the

soundest information available.’’ I was also encouraged by her comments regarding the need to realize that ‘‘science and public policy

proceed along fundamentally different lines. We will continue to

use the best available science and scientific analysis to aid the development of environmental policies.’’ Too often we have seen politics, particularly in the previous Administration, used to support

the policies as opposed to sound science.

The third general area is regulation through litigation and guidance. The prior Administration bypassed the safeguards of the Administrative Procedure Act which requires Federal agencies to provide opportunities for informed and meaningful public participation. They used such things as interim final rules, guidance documents and policy statements which did not really require any kind

of public comment. We want this out in the public, we want to

know ourselves but more important we want the public to be

aware.

In April, the U.S. Court of Appeals in Appalachian Power v. EPA

actually had to strike down an abusive EPA guidance document.

The court found, EPA was creating broad new authority through

the guidance document; the EPA did intend the guidance document

to have a binding effect; and the guidance was illegally issued outside of the APA rulemaking process. Such activities must and will

be stopped. The new source review is a good example of this. I’d

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like to have you directly address that in one of the three forms that

I suggested.

The debate over regulation is not about whether a better quality

of life, cleaner air or safety and more productive workplaces is desirable; it’s about how regulations affect the quality of life. Are

Americans better off or worse off when government regulators intervene?

With that, if you could give me the response either for the record

or during the course of this hearing, I’d appreciate it. I feel very

fortunate in having four people of your quality and qualifications

serving with us.

Senator SMITH. Thank you, Senator Inhofe.

Senator Carper?

OPENING STATEMENT OF HON. THOMAS R. CARPER,

U.S. SENATOR FROM THE STATE OF DELAWARE

Senator CARPER. Thank you and welcome to each of you and your

families and supporters.

About 3 months ago, we sat here in this room and Governor

Whitman sat at that table and we had the opportunity to question

her with respect to her nomination as Director of EPA. She and I

were Governors of neighboring States for the last 7 years and I

have a great deal of respect for her. I said, ‘‘You have a reputation

of always surrounding yourself with excellent people in New Jersey, not only in environmental areas but in other areas as well.’’

I said, I have no concern if left to your own devices as Director of

EPA, you’ll surround yourself with excellent people.

My fear which I expressed at the time was that she would not

be given free rein in terms of choosing the people who surrounded

her. I understand today half the people at this table are people she

chose—I’m kidding. I understand she’s chosen you all. I have it on

good word that you’re capable, able, hardworking people.

Ms. Fisher, have you ever been to Ohio?

Ms. FISHER. I was raised there.

Senator CARPER. Ever been to Ohio State?

Ms. FISHER. Yes.

Senator CARPER. A couple members of this committee went to

law school and I was an undergraduate at Ohio State. I welcome

you and hear very good things about you.

Mr. Johnson, people sing your praises, and Mr. Holmstead, and

Mr. Connaughton, I here mostly good things about you. I will be

honest, a couple of concerns have been raised and I hope during

the course of the hearing we will be able to address any of those.

Having been through a confirmation hearing of my own, I have

some idea what you have to go through to be considered. It is an

awful process. You’re to be commended for being here. We look forward to this hearing and getting to know each of you.

Thank you.

Senator SMITH. Senator Bond?

OPENING STATEMENT OF HON. CHRISTOPHER S. BOND,

U.S. SENATOR FROM THE STATE OF MISSOURI

Senator BOND. The chairman mentioned there are conflicting

hearings. I may be holding a record this morning. There are four

9

hearings I’m supposed to attend this morning but it is very important for me to be able to say on the record how impressed I am

with the four nominees in front of us. Some of them I have worked

with personally over many years and know them well. Others I

know them by reputation, by the record they have achieved, by

their level of service. I’ve enjoyed the opportunity to get to know

them.

We have very tough tasks set out for you and I’ll have some

questions. I want to be here for one round of the questions.

I do want to say I’m sorry Senator Reid left. I do appreciate the

fact that we could move forward with this hearing. I hope we can

move very quickly to confirm all four. As Senator Carper, I have

some experience as Governor and it’s one thing to be able to appoint the top policy head of a department. That’s great, you get all

these policy pronouncements but without the people to make it

work, you can’t get things done that I think Senator Reid and our

colleagues on both sides of the aisle want to see done.

This is a critical time in this Administration because many of the

departments are sitting there with one head or one plus one and

the frogs in their pocket are the we that they talk about. There is

such a disconnect when you don’t have the folks with responsibility

to move the programs forward.

I hope, Mr. Chairman, we can resolve the questions Senator Reid

has quickly. I think it can be done more quickly if we had a full

complement in EPA.

Thank you for holding the hearing. I appreciate the fact that

Senator Reid allowed us to go forward with this hearing.

Senator SMITH. Thank you, Senator Bond.

Let me make one quick announcement. A lot of members do have

busy schedules but I’m going to stick to 5 minutes on the first

round and then we’ll see where we are after that, so we can get

through as quickly as possible.

To each of the witnesses, we’ll have a light here for a 5-minute

summary. Your complete statement will be made a part of the

record. If you could summarize in 5 minutes, I would appreciate it.

Ms. Fisher, we’ll start with you.

STATEMENT OF LINDA J. FISHER, NOMINATED TO BE DEPUTY

ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY

Ms. FISHER. Thank you.

I’m delighted that President Bush and Governor Whitman have

invited me to become a member of their environmental team. They

are committed to continuing the tradition of a strong environmental program that has marked this country’s history for the past

30 years. I am committed to that as well.

The American people are overwhelmingly supportive of a strong

government role in protecting the environment. The EPA has met

that role with remarkable energy and enthusiasm in the past and

I am confident that EPA will continue to serve the American public

with distinction under the Bush Administration.

The American public trusts EPA to protect their families, their

communities and the land and water and air of our country. I understand the enormous responsibilities that come with that trust

10

and I will do everything in my power to be sure those responsibilities are met.

As you know, I did serve for 10 years in several management positions at EPA. During that time, I witnessed firsthand the personal dedication of EPA’s career staff. I saw the importance of

bringing the best science to bear on the difficult policy questions

the Agency faces and I saw the critical need for sound, economic

analysis to support those decisions.

I also learned the importance of a strong enforcement program

and how important that is to the credibility of the entire Agency’s

programs. I had the opportunity to work in the spirit of collegiality

with Members of Congress and I grew to understand the importance of involving all of the public in our decisionmaking. This experience at EPA, and what I took away from it, will help me meet

the challenges that face every Deputy Administrator.

At the same time, I understand that the environmental issues we

face have evolved since I was here at EPA. Numerous, widely dispersed and small sources of pollution in some places are the cause

of the most serious environmental problems. New problems like climate change have moved to center stage. For these new and

emerging problems, the Agency’s traditional regulatory approaches

which were critical to past success might not be the most efficient

or effective. For these reasons, EPA is changing too. The Agency

today is trying a broader array of regulatory tools to meet new environmental challenges.

For example, over the past decade, economic incentives have proliferated at the Federal, State and local level. Under Governor

Whitman’s leadership, EPA will expand the use of these tools to

help solve ongoing and emerging environmental problems.

For the last several years, EPA has also undertaken a number

of pilot projects to test innovative ways of streamlining the regulatory system. State governments as well have tried these new

tools. President Bush and Governor Whitman want to shape EPA

to meet the environmental challenges of the 21st Century by integrating into the Agency’s entire structure and culture new ideas for

protecting the environment.

Therefore, over the new few months, we are going to take a hard

look at these bold experiments, try to identify what has worked

well, what hasn’t worked and understand why. Then in partnership

with the States, try to integrate where appropriate the most effective new ideas into our programs.

Part of our incentive for incorporating innovation has been driven by the business community itself. More than ever before in our

history businesses are recognizing their role as stewards of the environment. They recognize that corporate environmental stewardship and social responsibility are increasingly essential if they are

to operate successfully in the global marketplace. More and more

businesses today are forming voluntary partnerships not just with

EPA and State regulatory agencies, but also with the public

through nongovernmental organizations.

Encouraging and strengthening these partnerships with the

States, with the public and with the private sector to achieve more

voluntary environmental protection will be one of my goals at EPA.

If tomorrow’s EPA is to fully and successfully incorporate the kinds

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of innovations I have mentioned today—innovations like economic

incentives and streamlined and flexible and regulatory systems,

then tomorrow’s EPA employees will need different kinds of training and skills.

Yet today EPA faces very serious human resource issues. For example, about 50 percent of our senior management may actually

retire from the Agency over the next 5 years. Developing a diverse

and well-trained work force that is prepared to meet new environmental challenges will be one of the most difficult challenges I

think Governor Whitman’s team is going to face. It is a problem

I will be personally involved with resolving.

I would like to say a word about global environment. More and

more U.S. companies are operating in the global marketplace. My

experience in the private sector working to forge global acceptance

of bioengineered agricultural products showed me the global dynamic of many environmental issues we face today. Problems that

are as broad as climate change or as focused as pesticide residues

are important to virtually all nations and they affect everyone on

earth.

How this nation and other nations respond to the environmental

issues presented by worldwide economic growth and expanded global trade will directly affect not just our competitiveness but also

our ability to protect our global environment. Therefore, we must

work in concert with other governments if we are to attain our environmental and economic goals.

During my tenure as EPA Deputy Administrator I will support

Governor Whitman as we join in partnerships with countries to

solve problems that affect the planet we all share.

Thank you very much. I look forward to working with you and

members of this committee as we move forward in the next 4 years.

I will be happy to answer your questions.

Senator SMITH. Thank you.

Mr. Holmstead?

STATEMENT OF JEFFREY HOLMSTEAD, NOMINATED TO BE ASSISTANT ADMINISTRATOR, OFFICE OF AIR AND RADIATION,

ENVIRONMENTAL PROTECTION AGENCY

Mr. HOLMSTEAD. Thank you.

It is a great honor to be here today as the President’s nominee

to be Assistant Administrator for the Office of Air and Radiation

at EPA. I am pleased to be joined by my wife, my children and my

parents.

I sincerely hope that this committee and the full Senate will see

fit to confirm me because I am very eager to have the chance to

work with Governor Whitman as she starts her tenure as the Administrator of EPA. I believe that with the support of President

Bush and this committee, I will be able to help Governor Whitman

make continued improvements in the quality of our air, while at

the same time making EPA’s regulatory programs less burdensome

and more cost effective.

Growing up in Boulder, Colorado gave me a great appreciation

for the environment and the outdoors. Even so, when I graduated

from law school in 1987, I did not plan to spend my career working

on environmental problems. After a year of practicing corporate

12

law, I had the opportunity to serve in the White House under

President George Bush, Sr. where I spent most of my time working

on environmental issues. At the White House, I soon found that

working to find effective ways to protect and improve the environment was more challenging and rewarding than anything else I

could imagine.

Ever since, I have focused my career on environmental issues. It

is indeed a great honor to be nominated by the President to continue working on the issues of such great interest to me personally

and of such vital importance to all of us.

I share Governor Whitman’s commitment to protecting the environment and her goal of leaving the environment cleaner than she

found it. I recognize that the job for which I am seeking confirmation will present many challenges and many difficult issues, but I

honestly believe that we can overcome the challenges and resolve

the issues. My optimism comes from the belief that we all share

the goals of using good science to identify our environmental goals

and developing good policies to achieve those goals cost effectively.

Starting from these shared goals, I hope to have the chance to

work with all the stakeholders that care about environmental

issues to increase cooperation and decrease the acrimony that has

occasionally gone along with these issues in the past. I think we

can take pride in the progress that all of us—States, industry, advocacy groups, Congress and EPA—have made in cleaning our nation’s air over the last three decades.

Since 1970, when Congress first passed the Clean Air Act, we

have come a long way in advancing both the science and the art

of environmental protection. Both EPA and the States have become

more effective at designing programs to achieve our common goals.

As Linda mentioned, we are using more market-based strategies

and other flexible regulatory tools. More and more, State and local

agencies and environmental groups are working with businesses to

solve environmental problems as partners. EPA has been both a

partner and often a leader in these efforts.

I believe that EPA can and should do even more. Just because

a program gets results does not mean that it cannot be improved.

An effort to make a program simpler and more flexible should not

be viewed as an excuse to make it less effective. If EPA is open to

new possibilities, if we actively seek the best ideas from everyone—

our partners at the State and local level, our stakeholders and our

staff—we can develop better approaches for protecting and improving our nation’s air. If we base these approaches on the best available science and if we focus on results and allow people to find innovative ways to achieve those results, we can continue to improve

the quality of our air and make our regulatory programs less burdensome and more cost effective.

If I am confirmed, I will look forward to working with you and

your staffs to achieve these goals. Thank you.

Senator SMITH. Thank you, Mr. Holmstead.

Mr. Johnson?

13

STATEMENT OF STEPHEN JOHNSON, NOMINATED TO BE ASSISTANT ADMINISTRATOR, OFFICE OF PREVENTION, PESTICIDES, AND TOXIC SUBSTANCES, ENVIRONMENTAL PROTECTION AGENCY

Mr. JOHNSON. Thank you.

I am honored and privileged to have the opportunity here before

you this morning and to be nominated to serve as the Assistant Administrator for the Office of Prevention, Pesticides and Toxic Substances. As a career civil servant for the last 20 years, it is a privilege and distinct honor to have the support of President Bush and

Governor Whitman.

During my brief remarks this morning, I will mention several

key priorities and principles that I will pursue if confirmed. Then

I’d like to close with a few personal comments.

Given my private sector and EPA experience, I understand the

importance of practical and reasonable solutions to today’s environmental challenges. If confirmed, I will foster an atmosphere that is

accessible and responsive, I will also aggressively promote decisions

based in sound science, strive to foster consensus-based and common sense approaches as we advance public health and environmental protection.

As you know, our office’s major responsibilities include pesticide

and industrial chemical regulation, food safety and pollution prevention. These areas pose enormous challenges as well as opportunities. Important work remains.

Let me mention a few key priorities. Our regulatory oversight of

pesticides, industrial chemicals, biotechnology, food safety and pollution prevention will continue to require sustained and dedicated

attention. Making sure our decisions our based on sound science

will require expertise within the EPA and active participation of

the scientific community, including extensive peer review.

I hope to build on the solid progress under the Food Quality Protection Act to reassess the older pesticides, while assuring an abundant food supply.

My office has the additional challenge of addressing the cutting

edge issues of biotechnology. I will help ensure that the United

States regulatory system is based in science and maintains consumer confidence. This is a key focus.

On the subject of industrial chemicals, voluntary partnerships

particularly the high production volume testing program and the

children’s testing program, will be key priorities as well.

I am committed to strengthening the many voluntary initiatives

and to advance pollution prevention, initiatives such as integrated

pest management as well as partnerships with many organizations

like the American Hospital Association.

I’d like to briefly mention my operating philosophy and principles

I will follow if confirmed as Assistant Administrator. These include

advancing the best science to support or regulatory decisions; open

and regular communication with all our stakeholders—in other

words, transparency; building strong and trusting relationships

with all stakeholders; working to quickly address the concerns of

our stakeholders; establishing partnerships; strengthening those

partnerships with our other Federal agencies, particularly the Department of Agriculture, the Food and Drug Administration, our

14

States and local communities; and within OPPTS to promote professionalism, dedication and diversity within the staff; and truly

build human capital that we can all be proud of.

I’d like to close with a few personal observations. My father is

a World War II veteran and worked in the Department of the Navy

for more than 30 years. He has a strong commitment to public

service. Growing up, I always admired his government service. His

commitment to public service has helped me appreciate the importance of reaching for excellence in government. I am proud to have

the opportunity to continue in that tradition.

I’ve been fortunate to be able to devote the majority of my career

to public service and environmental protection. For me, serving in

the government with a goal to help all Americans and their families has been a distinct privilege. When I reflect on the past and

consider the future, I know that I will face difficult, complex and

serious issues. Having a foundation in sound science, exercising

common sense, utilizing cost benefit analysis, coupled with extensive stakeholder participation, I believe will result in quality decisions.

As Assistant Administrator, I hope to achieve 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 lives in.

Thank you for the opportunity to appear before you today. I look

forward to working with you on a bipartisan basis to advance public health and environmental protection. I would be glad to answer

any questions you may have.

Thank you, Mr. Chairman.

Senator SMITH. Thank you.

Speaking of a bipartisan basis, it is important to point out that

you’ve served Presidents Reagan, Bush, and Clinton thus far in

your work and now coming back again to work with another President, so that is true bipartisanship.

Mr. Connaughton?

STATEMENT OF JAMES CONNAUGHTON, NOMINATED TO BE A

MEMBER OF THE COUNCIL ON ENVIRONMENTAL QUALITY

Mr. CONNAUGHTON. Thank you, Mr. Chairman.

It is an honor to appear before you and the other distinguished

members of this committee.

I am both grateful and honored that President Bush has nominated me to be a member of the Council on Environmental Quality

and if confirmed, to appoint me as chairman.

Being a lawyer, I’m going to start with the law and it is an important one, NEPA. When Congress enacted NEPA over 30 years

ago and created the Council on Environmental Quality, Congress

declared it is the continuing policy of the Federal Government to

create and maintain conditions under which man and nature can

exist in productive harmony and fulfill the social, economic and

other requirements of present and future generations.

Senator John Chafee, one of the greatest environmental statesmen of the Senate, described this quite simply as a tall order but

an important one. I agree and fully embrace NEPA’s broad policy

15

objective. It is why I joined the environmental profession and have

focused my practice on promoting compliance and innovative approaches to environmental protection.

Environmental stewardship is a family matter in my house. My

daughter, Grace, 6 years old, constantly amazes my wife, Susanna

and I, with her passion for nature and for conservation. She has

wonderful little stickers all over the house telling us to turn off the

water and turn off the lights.

Every day my son, Spencer, comes into the room first thing in

the morning and says, ‘‘OK, Daddy, give me an environmental

issue,’’ and then he earnestly and confidently discusses how to address it. Their passion and concern reinforces my own commitment

to environmental stewardship. For that reason, I look forward with

great enthusiasm to leading CEQ in its core mission, first, to provide objective, well informed and realistic advice to the President,

his advisors and the Cabinet about the future direction of environmental police. Second, to coordinate the implementation of environmental programs and resolve policy disputes among Federal agencies, State, tribal and local government and private citizens. Third,

to promote a balanced decisionmaking process that accounts for the

views of all affected parties.

With respect to these three core tasks, I’d like to highlight three

aspects of my background that are particularly relevant to this

nomination. The first is the strength of my commitment to serving

the public interest. I have an exceptional role model, my father.

With the unflagging support of my mother, he spent over 30 years

as a clinical professor of child psychiatry working to improve the

lot of children and families, often in the most desperate of circumstances, in Baltimore’s inner city. I will count myself fortunate

if I can bring to government service even a fraction of the decency

and dedication to the public good that my father demonstrated

every day of his career.

Second, I am a strong proponent of searching for and harnessing

the power of consensus in meeting shared environmental goals. I

have had the privilege of traveling the world helping to create

international standards that promote effective, resulted oriented

environmental management and responsible environmental communication. These standards reflect the consensus of hundreds of

dedicated professionals from industry, environmental organizations, consumer organizations, government and academia from the

U.S. and 50 other countries.

Tens of thousands of organizations today are quietly and efficiently adopting these standards to improve environmental performance. Remarkably, participation in this process and implementation of these standards is entirely voluntary. I have seen firsthand the dramatic results that such voluntary, market driven action can achieve. It is faster, it is cheaper and it works.

Third, I am a forceful advocate and practitioner of environment

stewardship where it matters most, at the source. I have spent

much of the last 4 years traveling the country helping countries

implement what is known as ISO 14001, the international environmental management system standard from Oklahoma City, OK to

Ocala, FL, from Detroit, MI to East Liberty, OH, from Windfall, PA

to Kingstree, SC, I have worked with business managers and operVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6601 78075 SENENV1 PsN: SENENV1
16

ators on the factory floor showing them how to integrate environmental obligations into their day to day operational procedures and

their long term strategic business planning.

Their efforts are predicated on three fundamental commitments:

compliance, prevention of pollution and continual improvement.

These hardworking people are the nation’s front line in environmental protection. We must do what we can to capitalize on their

energy, unleash their creativity and remove obstacles to their success.

President Bush has encouraged Americans to join him in renewing our commitment to protecting the environment and leaving our

children and grandchildren with a legacy of clean water, clean air

and natural beauty. Embarking on the twenty-first century of environmental quality requires not only reinforcement of what is working but also the zealous application of new ideas and new methods.

If confirmed, I look forward to advancing NEPA’s goal of ensuring productive harmony between man and nature, to a constructive

dialog with Congress, with Federal, State, tribal and local government agencies and most important, with the public whose trust we

all hold.

Thank you.

Senator SMITH. Thank you.

Let me start by asking two questions which we have to ask as

part of the committee responsibility. You can answer it together.

Are you willing at the request of any duly constituted committee

of the Congress to appear in front of it as a witness if requested.

[All witnesses respond in the affirmative.]

Senator SMITH. The record will show all witnesses answered yes.

Do you know of any matters which you may or may not have

thus far disclosed which might place you in conflict of interest if

you are confirmed in this position?

[All witnesses respond in the negative.]

Senator SMITH. The record will show all witnesses answered no.

If each of you could take about a minute and cite for me, starting

with you, Ms. Fisher, what you would see as your greatest challenge as you come into that position? I’ll give you the parameters

of where I would like to go. Many of you have talked about the

command control of the past which has worked but I think we are

now transitioning into a new role where more and more businesses

are becoming good environmental partners. We’re talking about

good science now, talking about cooperation as opposed to confrontation, market-based initiatives. So I would say as you step

into that role, starting with you as the Deputy, what do you see

as the greatest challenge for you?

Ms. FISHER. First, we need to recognize that the environmental

problems we are going to face are going to need different solutions

and we will need to move the EPA staff, as well as the regulated

community, toward different kinds of solutions. We are all comfortable with how we have done business in the past and one of our

biggest challenges is going to be to learn to address problems differently and in different ways than we have in the past, and to get

comfortable with those, although they look and feel different, that

may get us a lot of environmental protection.

17

Second, as I mentioned in my testimony, this issue of the work

force, the retirements that we face, identifying people who are coming up through the ranks and reaching out beyond EPA to find others to bring into the Agency that can serve in these very critical

positions, is probably the secondmost important priority.

Third is streamlining, the traditional regulatory approach. It has

gotten us huge successes in the past as you mentioned, but we are

going to have to find ways to make that regulatory system much

more flexible, much more nimble if we’re going to be successful.

Senator SMITH. Mr. Holmstead in your area of the air, we now

see a situation where energy production is a problem, yet at the

same time we do have air standards to meet. I might ask you to

comment on that particular part in terms of your priority, how you

feel about that, where you would go with that issue?

Mr. HOLMSTEAD. I think there are a number of innovative, flexible things that we can do to encourage more energy to come on line

sooner and to address the issues that face many of our refineries

in terms of the kinds of processes they are currently required to

undergo before they can make changes. I think we can look for additional flexibility in terms of the issue of boutique fuels, which to

some extent is contributing to the gas prices that we face. These

issues are both challenges and opportunities. I believe we can accomplish all of those goals.

Stepping back and talking more broadly, I think the greatest

challenge and the greatest opportunity is to work with all of you

and your staff to fashion legislation to address multiple pollutants

from electric utilities. As you know, the President and the Governor have made this issue a high priority and, therefore, it becomes perhaps my highest priority.

There are a number of very cost effective opportunities to reduce

pollutants from electric utilities. Because of the way the process

has worked over the years, there’s a number of largely uncontrolled

plants and I think using the kinds of trading approaches, flexible

approaches that have been successful over the past 10 years, there

is a great opportunity for the Agency working together with you

and others to achieve some very significant reductions in that area.

Senator SMITH. The same question for you, Mr. Johnson, in the

pesticide area?

Mr. JOHNSON. I think certainly the greatest challenges that we

face deal in some specific areas which I mentioned in my testimony, including implementation of the Food Quality Protection Act

and how we reassess these older pesticides, making sure they meet

today’s standards and particularly are protective of sensitive subpopulations such as children.

A statement Governor Whitman has used that I’d like to refer to

is that the mission of EPA has not changed in the Bush Administration. The methods by which we accomplish that mission may

change. I think there are a number of opportunities as we move

forward both in implementation of the Food Quality Protection Act,

as well as dealing with issues of industrial chemicals, issues of biotechnology and others, that we do so in a partnership way.

My program has some excellent experience with partnerships.

One we are heavily involved with now is the High Production Volume Challenge Program, a partnership between the American

18

Chemistry Council, Environmental Defense and EPA, all working

together to address an issue where we have a lack of data on some

of these industrial chemicals. In a collaborative, voluntary way we

are getting that information. We have made the information available to the public. So I think there are those kinds of examples we

need to build on.

Senator SMITH. Mr. Connaughton, same question.

Mr. CONNAUGHTON. The challenge for CEQ is one that CEQ has

held for 30 years and that is bringing the Federal departments together in a manner where national decisions can be made, in a way

that promotes our environmental goals but also now more importantly than ever, also meets our social and economic needs.

The issues that cut across Federal agencies often lead to a pretty

robust, extensive and unfortunately lengthy internal Federal dialog

before we begin to see action in the country. At the same time, the

process often does not give appropriate weight to local input, local

needs and the ability and trust that I think we can now, 30 years

after the beginning of the modern environmental regulatory age,

give to local and State authorities to regain control of the direction

in which they want to take their communities.

Senator SMITH. Senator Carper?

Senator CARPER. Several of you in your statements mentioned

your parents. I see one or two in the audience who might actually

be your parents. Whether you were alluded to or not by your children, particularly those of you who were cited as wonderful role

models in public service, I want to say thank you and thank you

for raising these children with the kind of values that have led

them to this hearing today and to their nomination.

Mr. Connaughton, you spoke of your two children and I think

you mentioned you have a little girl who goes around putting up

stickers that say turn off the lights and turn off the water. I have

two boys, 11 and 12. When I arrived home last night, every light

in our house was on. What’s her name?

[Laughter.]

Mr. CONNAUGHTON. Her name is Grace and you don’t want her

in your house because she will tell your boys, ‘‘nature is nature is

nature,’’ and she knows the connection.

Senator CARPER. Grace, I want some of those stickers to take

home.

To the children and your spouses, we thank you for your willingness to share your moms and dads and your spouses with the people of our country.

Mr. Connaughton, you mentioned not only are you being nominated to serve on the Council on Environmental Quality but you

might even be its chairman. We have heard some talk that there

may be a reorganizing of the Council on Environmental Quality,

some change in its composition, its role. Have you heard anything

along those lines and if so could you share what discussions you’ve

heard?

Mr. CONNAUGHTON. Actually, I’m not aware of any change in

composition in terms of the way CEQ has operated even throughout the Clinton Administration. CEQ’s mission is a statutory one.

Also its mission of interagency coordination and advice to the

President is a necessary one. It is my understanding, based on conVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6601 78075 SENENV1 PsN: SENENV1
19

versations with the Administration in preparing for this hearing,

that it is also an intentional one for the Administration. The idea

is to continue to maintain CEQ as an important center for communication and dispute resolution within the Federal agencies and to

ensure that the President has close at hand substantive environmental policy advisors who can help him and the Cabinet and his

advisors in the White House, and ensure that environmental considerations are integrated into public policy decisionmaking.

Senator CARPER. Ms. Fisher, during the last Administration,

those of us who live on the Delmarva Peninsula worked closely

with your predecessor and with Governor Whitman’s predecessor

on the issue of water quality. I live in a State where there are 300

chickens for every person and there are downstream consequences

for all those chickens. Historically our farmers have used the chicken nutrients to fertilize our farm fields. We face a situation today

where we have about a third as much farmland as we had in 1960

over which to spread the nutrients and about three times as many

chickens. The problem is we have too much nutrients, too much

phosphorous and are concerned about runoff into waterways and

ultimately into the Chesapeake Bay.

I had a great opportunity to work with EPA over the last couple

of years where it said to States, we’ll let you figure out how to meet

the standards. We want to set high standards, cleanup our waterways, reduce runoff, but we’ll work closely with the States. I want

you to know a little of the history of that and ask you to comment

philosophically on how you would be inclined to come at it.

We find if you go to the folks closest to the problem sometimes

they have a pretty good idea how to fix it. I have found that farmers, for the most part, are pretty good conservationists. What we

have tried to do in our State is to empower them to come up with

solutions. For example, we have called for development of nutrient

management plans for each of our farmlands. We’ve not mandated

it but have asked it to be a voluntary activity. In one of our neighboring States, they made it a mandatory activity.

In a year in my State, close to 100,000 acres of farmland now

have voluntary nutrient management plans. In our neighboring

State, I am told none. It says volumes about what you can get done

when you involve the people on the ground in this case in addressing that. Would you give me your take on that? By the way, Mike

McCabe was the EPA official who worked directly with us and very

closely.

Ms. FISHER. I had lunch with him a few weeks ago as I was embarking on this new opportunity at EPA to learn from his experiences.

I think you have identified an area where many of the agricultural pollution problems we face are not going to lend themselves

to the typical EPA approach of command and control regulation.

We have found in the past that working in partnership with the

States and the farm community can be very helpful in identifying

as you suggest the most efficient and effective ways of protecting

the environment. I think particularly with sectors of the economy

that aren’t used to environmental regulation, a cooperative approach and one closer to the people frequently work a lot better.

20

I have not heard particularly what happened in Delaware but I’ll

definitely look into it. I think what you described sounds like the

model for how we are going to have to deal with many of our

emerging problems.

Senator CARPER. Thank you.

May I ask indulgence to ask a question on behalf of Senator

Reid? It’s a yes or no question.

Senator SMITH. All right.

Senator CARPER. This is for Mr. Holmstead. In the pre-hearing

questions I think you responded to, Senator Reid asked if you supported the revised national ambient air standard quality for ozone

and PM 2.5 as published in 1997? His question is either a yes or

no answer, do you?

Mr. HOLMSTEAD. The short answer is yes.

Senator CARPER. That’s a great answer.

Senator SMITH. Senator Inhofe?

Senator INHOFE. As I listened to your opening statements of the

five concerns that I had, I think most of you covered most of them.

Just so we don’t overlook them, would you mind responding to each

for the record. Mr. Johnson, I think you covered all of them but I’d

like to get it all down so we’ll be able to refer to it at a later date.

There is a chart here that we’ve put together. I have been concerned that so much discussion has taken place during this time

of energy crisis as to what is causing the cost and the shortages.

A recent report entitled, ‘‘The U.S. Downstream, the EPA Takes

Another Bite Out of America’s Fuel Supply,’’ by Merrill Lynch concluded that EPA’s clean air regulations ‘‘will clearly have the impact of reducing existing U.S. refinery capacity.’’

As we’ve gone through these hearings in the past few years with

the recognition that we are at nearly 100 percent refinery capacity,

it’s very difficult to come to any conclusion other than many of

these regulations play a part in this. I would ask a commitment of

you folks that when you’re promulgating rules and talking about

rules that you will consider the energy ramifications those rules

might provide.

For the record, they all nodded yes.

Mr. HOLMSTEAD. Senator, if I might add, I believe the President’s

energy advisors have actually advised that he issue an Executive

Order that specifically requires us to consider the energy impacts

of any regulations we develop.

Senator INHOFE. There has another area that hasn’t been covered

and one that I feel very strongly about. A statement was attributed

to Administrator Browner when she left office saying ‘‘At least I

won’t have to hear Inhofe’s Jimmy Dunn story anymore.’’ Well, we

are going to hear it one more time.

Back in 1994 or 1995, I can’t remember which, I got a call from

a guy named Jimmy Dunn. I happen to know him very well and

have known him for many years. He is a third generation of Mill

Creek Lumber in Tulsa, Oklahoma. It is a very competitive industry. It was in 1994 because I was still in the House at that time.

He said, Inhofe, the EPA has just put me out of business. I said,

what did you do wrong? He said, I don’t know what I did wrong,

I’ve been giving my used crankcase oil to the same contractor for

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ment, by the County of Tulsa, by the State of Oklahoma. They

traced some of this to the Double Eagle Superfund site and I got

a letter from the EPA saying they are going to fine me $5,000 a

day. I said, fax the letter to me. He faxed it and it’s very carefully

worded to inflict terror on people.

I say this in a very serious vein because I spent 30 years in the

real world many times being abused by the bureaucracy myself so

I know what it’s like to be on the receiving end of a bureaucracy

that has no limits in terms of resources to expend to go after someone. When you casually read this, you would assume you would be

fined that amount.

As it turned out, it didn’t happen but I’ve often wondered how

many Jimmy Dunn’s are out there that never wrote a letter or

made a phone call to a Member of Congress to someone who is accountable to the public? You’re going to have to talk to people in

your departments, people answering to you, that there is going to

be a new attitude in responding to the public and recognition that

we, the four of you and us at this table, actually work for the public

and keep in mind they are the ones paying for all this fun. I’d like

to ask you to make a conscious effort to do that. If we do get letters, I won’t be shy about reading them in these public hearings.

Thank you.

Senator SMITH. Senator Clinton?

OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON,

U.S. SENATOR FROM THE STATE OF NEW YORK

Senator CLINTON. I’m always relieved that there is only one

Jimmy Dunn story. I don’t mind hearing it over and over.

Senator INHOFE. Oh, no, I’ve got a lot more.

[Laughter.]

Senator CLINTON. As often as Senator Inhofe has told it, I would

imagine there would be a lot more stories he could add to it. The

point is very well taken. Obviously we are looking to enforce our

laws in a conscious manner and in a way that brings people together around the goals we share, not to drive people apart or inflict terror on anyone. We want to end up with a cleaner environment for our children, especially as beautiful children as are here

today.

I think the objective that all of us on this committee share is certainly one I heard echoed from each of you. I commend you for

being willing to take on the responsibilities that each of you has

signed up for and look forward to working with you.

I had a couple of specific questions. The first are for Mr.

Holmstead. In response to questions with respect to the current enforcement actions against certain power plants, you have stated,

and I agree 100 percent, that the EPA should set clear standards

and then vigorously enforce them.

I’m interested in your reaction to a recommendation that appears

in the energy policy document that the Administration has issued

today that the President direct the Attorney General to review existing enforcement actions regarding new source review to ensure

the enforcement actions are consistent with the Clean Air Act and

its regulations.

22

You probably know New York has brought some of those enforcement actions out of frustration. We are the recipient of a lot of pollution from elsewhere and are looking for a way to work with our

neighbors in the Midwest to try to end that and give them the support they need to be able to do that.

Given your new position, do you believe these enforcement actions are consistent with the Clean Air Act and its regulations?

Mr. HOLMSTEAD. I know that those enforcement actions have

been controversial and some companies have claimed there was

somehow a change in the criteria used. I have to say that never

was involved in any of those cases and I really don’t know exactly

what the criteria are. I know that a lot of very smart and conscientious people at the Agency believe those are fully justified. I have

no reason to question that.

I’m also aware of the President’s recommendation that the Department of Justice take a close look to make sure they are consistent with the Clean Air Act and I will obviously be supportive

of that effort. I have no idea how this review may come out, but

I expect it will be completed fairly quickly.

Senator CLINTON. I appreciate that and your personal attention

to it is very welcome.

Following up on that, acid rain has been a particular problem in

the northeast. It is something that affects the chairman’s State and

my State and is a real challenge we are trying to deal with but we

can’t do it in our States. There is no way New Hampshire and New

York can control the acid rain because we don’t generate it. The

wind patterns obviously bring it to us.

There is a very specific issue that I’m concerned about and that

is whether or not you support the NOx SIP Call and whether you

support a Federal requirement to make the NOx SIP Call annual

as opposed to only governing the 5-month ozone season. Do you

have any response to that?

Mr. HOLMSTEAD. I—and anyone I think who believes in cost-effective regulations—believe that the NOx SIP Call is a very effective way to reduce not only the problem of acid rain but other problems as well. As you know, NOx is a significant contributor to

ground level ozone and to fine particulates and other things. I have

to say I have not thought a lot about whether the NOx SIP Call

should be an annual program.

The President and Governor Whitman, and others, have made it

clear that having a multi-pollutant bill is a high priority. As you

know NOx is only one of the casues of acid rain. The primary cause

is SO2. We recently entered the Acid Rain Trading Program under

Title 4, and it will be fully implemented by the year 2010. So those

emissions will continue to decrease over the next 9 years. I think

it’s pretty clear that we can and we should do more cost effectively;

but under our current Clean Air Act authority, we have no other

mechanism for getting additional SO2 reductions.

So I look forward to working with you and others to develop a

multipollutant bill that would further address that issue.

Senator CLINTON. I am so pleased to hear that. I think this committee in a bipartisan way can produce a multipollutant bill that

would take care of NOx, SO2 and mercury. We obviously have disagreements about carbon dioxide but it certainly would add to the

23

ability of all of us from the Federal and State perspective to be able

to control the acid rain problem.

I have a quick question for Mr. Connaughton. I thank you for literally talking with me on the run yesterday. One thing I haven’t

gotten used to is I set an appointment, then I have to go vote, and

run down the hall with a nominee running with me to be able to

have a conversation. I appreciate that.

Mr. CONNAUGHTON. I like dynamic conversations.

Senator CLINTON. That was dynamic and I was impressed you

weren’t winded.

I want to make clear for the record something you and I talked

about yesterday which you graciously provided in a letter dated

May 4 with respect to your previous representation of General

Electric. I want to be sure I understood that you will recuse yourself, not just for one year but a full recusal for the time of your

service on decisions related to the Hudson River PCB cleanup

where General Electric is a responsible party. Is that correct?

Mr. CONNAUGHTON. That is correct, Senator.

Senator CLINTON. What about other matters in which GE is involved or other previous clients? Will that similarly affect your

recusal policy?

Mr. CONNAUGHTON. In preparing for this hearing, I worked very

closely with the Office of Government Ethics. They evaluated all

the matters that I worked on and we prepared the letter you saw

on May 4. I think there were six or seven particular matters where

the full recusal was described. We wanted to do that before this

hearing so there would be no question about that.

Then as we move forward, I have committed and will live up to

the ethics laws. CEQ typically doesn’t get into the particular details in these matters, so it would be very unusual for any of those

kinds of conflict scenarios to arise, but certainly I’ll be exercising

appropriate prudence and an abundance of prudence. It does not

serve either the President and the Federal Government nor outside

stakeholders to create appearances of conflict where it is not necessary. The goal is to advance environmental policy.

Senator CLINTON. Thank you, Mr. Connaughton.

Senator SMITH. Senator Bond?

Senator BOND. A few general comments. If anybody would like

some more Jimmy Dunn stories, we can provide them. Missouri is

full of them and don’t think just because we don’t take up the time

that they aren’t there. We’re happy to supply them at your request.

Second, the discussions brought to mind one of the guiding principles that Administrator Whitman has set forth and that is to use

sound science. Acid rain particularly floats my boat because I was

one who worked with Senator Byrd on the acid rain trading system

to cram through the acid rain provisions in the Clean Air bill. It

was done in a hurry to make sure that law was in place prior to

the completion of the multiyear, $1 billion NAPAP study, National

Acid Precipitation Assessment Project which determined that

frankly all the cost and burdens that were put forth in those particular provisions on clean air, were excessive and perhaps much

of the benefit could be achieved by putting lime in 26 lakes in the

northeast. Whether the science has changed or not, I think the

precedent that this Congress adopted at the urging of the AdminisVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6601 78075 SENENV1 PsN: SENENV1
24

tration and with the leadership of some in Congress of moving

prior to getting the science is precisely the kind of effort we don’t

want to see. We don’t want EPA doing that and I hope you would

help rein us in prior to making similar precipitous moves in the future.

There has been a lot of discussion about the National Energy

Policy and I guess since 10:45 a.m. has now come and the President has officially released it, I was reading through the recommendations. It looks like EPA has a big chunk of the pizza pie

that’s come out. I was particularly interested, Mr. Connaughton, in

Chapter 3, the NEPD Group recommends the President issue an

Executive Order to rationalize permitting for energy production in

an environmentally sound manner by directing Federal agencies to

expedite permits and other Federal actions necessary for energy-related project approvals on a national basis.

An interagency task force is to be chaired by CEQ to ensure Federal agencies responsible for permitting energy related facilities are

coordinating their efforts. I assume this doesn’t come as a surprise

to you. Do you have any feelings at this point as to the direction

or the possible benefits in terms of energy supply that might come

from such a rationalization?

Mr. CONNAUGHTON. I too recently learned. I have not yet seen

the policy but anyone reading the school newspaper we all read

knows that was coming.

I look forward to taking on that challenge. It is an important one

for our economy and at the same time, it is important that we meet

the goals of NEPA in ensuring that it’s done in an environmentally

responsible way. To me this is mainly a process issue; it is not an

environmental issue, per se, internally, but certainly externally

getting new energy supplies up and on line has an environmental

dimension. Generally, newer is cleaner. Getting our old infrastructure replaced in an effective and timely way I think promotes not

just our economic good but also our environmental good.

In terms of the process, it’s going to be daunting. There are numerous Federal agencies with numerous responsibilities in any of

these kinds of initiatives. I am a very goal oriented person. In the

time I have spent running around the country and other parts of

the world with very large organizations, we have had our greatest

success when we defined a goal and then reached consensus on

process. I find that is a very effective way of making things happen

fast.

I’m hopeful with the authority provided under NEPA, and with

close cooperation of the folks internal to the Government but as importantly external stakeholders, we can see real results in terms of

streamlining.

Senator BOND. I suggest once you have an opportunity to review

this document, you will be further daunted because CEQ obviously

is going to play an important role as it should as will the Environmental Protection Agency.

I’d like to turn to Linda Fisher for another particular area of

great interest to me and that is infrastructure development and

maintenance. We think it is imperative for this country, highways,

runways, waterways, pipelines, power plants, not just for convenience and economic growth but good highways in Missouri mean

25

saving lives. We kill people on inadequate highways where we are

not able to build highways.

Today, it can up to 8 to 10 years to go through the process for

a highway project, 10 to 15 years to build a runway for an airport.

I think that is unacceptable. We all want sound environmental protections based on science and common sense. We need to build,

modernize and maintain our infrastructure because, as Mr.

Connaughton said, newer is usually safer. I think EPA can do more

to streamline and coordinate the efforts.

What recommendations would you have and how can EPA take

steps to ensure that the environmental goals and protections mandated are observed but we can move these projects to get the infrastructure we need?

Ms. FISHER. I think EPA has actually already started a process

with CEQ to look at the permitting issues raised or presented by

some of the infrastructure improvements and expansions, particularly in the transportation sector. It’s an area that has been identified for the Agency and they have already begun to see what they

can do to make streamlining changes.

Senator BOND. Thank you, Mr. Chairman.

Senator SMITH. Do you have any further questions, Senator

Bond? I’d be happy to yield.

Senator BOND. I appreciate your indulgence. I wanted to ask a

quick question to Mr. Johnson. I’m very impressed with your record

of service.

I would like your assessment on whether you feel the food safety

laws that you have, FDA has, and USDA has, provide adequate authority and responsibility to understand and consider and make approval or disapproval decisions on new products produced with

modern biotechnology?

Mr. JOHNSON. I believe the laws we have and the framework the

Government has, and certainly the role of the Department of Agriculture and the Food and Drug Administration and EPA, is a sufficient regulatory framework to carry out our responsibilities to ensure that this type of technology is advanced, is promoted and at

the same time that we can assure complete public health and environmental protection.

Having said that, it is an area of rapidly evolving science and it

is one that there are new science issues that confront us each and

every day. So I believe it really calls on each of us, both at EPA,

USDA and FDA, to make sure we have a very close, coordinated

working relationship and to make sure that while the laws are adequate, we need to make sure there is close cooperation to ensure

we are making the right decisions.

I think certainly we have taken a number of steps. In fact, there

is a senior Ag biotech advisory committee that is Cabinet level. A

number of the Secretaries, including Governor Whitman, sit on it

to oversee and help ensure we have that close coordination.

Senator BOND. The process is working now though?

Mr. JOHNSON. So process is working now, correct.

Senator BOND. I can’t leave without putting on my small business hat to ask Linda Fisher if she’s familiar with the provisions

of SUBRA, the Red Tape Reduction Act, which requires that EPA

convene panels to consider the impact on small businesses and how

26

the goals of a particular regulation can be achieved with minimal

impact on small businesses that might otherwise be unnecessarily

hindered without achieving any greater environmental benefit. Are

you familiar with that process and do you agree to support it and

ensure its terms are met?

Ms. FISHER. Yes, Senator, I am familiar with it. It is one of the

laws passed since I left government. I have been briefed on it and

do intend to support it and ensure it is properly implemented at

EPA.

Senator BOND. As the author of the law, we’d be happy to help

you. We have some people who are available if you have any questions about it. We look forward to working with all of you on that.

Thank you again, Mr. Chairman, for your indulgence.

Senator SMITH. Thank you, Senator Bond.

I want to thank all of the witnesses for being here. I must say

your parenting is obviously done very well. All these young children and we haven’t had any eruptions or problems at all. I complement you on that.

I want to make a couple of closing announcements. I do have a

business meeting scheduled for next Wednesday, the 23d at 9:30

a.m. to move your nominations from the committee to the floor.

Largely because of the impending Memorial Day recess, I want to

report these nominees at that meeting.

It is my understanding that all the nominees have made themselves available to each of the members and their staffs and at

least one has already received and responded to some 30 or so written questions. Any additional written questions that may be offered

would be due by noon tomorrow and if those questions are received,

they will be provided to you. If you can get those back to us in writing by noon Tuesday, the 22d, we will be ready to report you out

the following day on Wednesday.

That is all we have at this time. Thank you to each one of you

for being here.

The hearing is adjourned.

[Whereupon, at 11:15 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF HON. GEORGE V. VOINOVICH, U.S. SENATOR FROM THE STATE OF

OHIO

Mr. Chairman, I want to thank you for holding this nomination hearing so quickly. I think it is important for us to move these nominees and confirm them.

I know a lot of members have a number of issues with different programs at the

Agency, and right now we only have one Senate confirmed person over at the EPA

and that is Administrator Whitman. Many of the issues that members are raising

would best be addressed through the oversight process so I believe we should confirm these people as quickly as possible and hold as many Oversight Hearings as

we need. It makes no sense to continue to beat up on an agency with only one nominee in place.

I am thoroughly impressed with the caliber of today’s nominees.

Linda Fisher, Deputy Administrator of EPA—I have been impressed with Ms.

Fisher for a number of years, in fact I tried to get her to come back to Ohio to be

the head of the Ohio EPA when I was Governor. With her experience at the EPA

I believe she will make a great Deputy.

Jeff Holmstead, Assistant Administrator for Air—I met with Mr. Holmstead yesterday and I was impressed with his experience. He worked on the Clean Air Act

Amendments of 1990 in the first Bush White House so I know that he understands

the issues and has a lot to contribute.

27

Steve Johnson, Assistant Administrator for Prevention, Pesticides, and Toxic Substances—Mr. Johnson is a career EPA employee and I think it’s great that the

President nominated him for this position. As I have stated before I am very concerned about the Human Capital Crisis in the Federal work force. Nominating a career employee sends a very positive message that excellence in government is rewarded. That’s a positive message we need to send to attract high caliber recruits

into the work force.

Jim Connaughton, Member of the Council for Environmental Quality—Mr.

Connaughton brings excellent credentials including his voluntary work with the

ISO–14,000 process which are the international environmental compliance standards. In that capacity I understand he has worked with over 60 different business

sectors, environmental groups and international countries, reaching consensus. This

is exactly the type of job skill needed at CEQ. You need someone who can problem

solve with multiple parties.

I think the President has made four excellent choices for these important positions. The major issue which I would like you all to address is how we deal with

the Human Capital Crisis in the Federal work force. I would like suggestions from

you on how we can better attract top candidates and an understanding of how the

problem affects the EPA.

Ms. Fisher, specifically I would like you to address an issue with the SES (Senior

Executive Service) employees. We have a lot of talented and dedicated employees

who have been in their jobs for a number of years. I know the SES program recommends that senior managers rotate their jobs, I believe every 5 years. I would

like you to look into this and see when it was last done. It is a good way of relieving

job boredom and it provides managers with an opportunity to spread their skills

across the Agency and creates a more vibrant workplace.

I look forward to working with all of you and I hope we can get you confirmed

as quickly as possible. Thank you Mr. Chairman.

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

Thank you Mr. Chairman. I would like to thank the nominees and their families

for being here today.

As I’m sure you know, the Environmental Protection Agency is very important to

my State. And, for the most part, I think the EPA has done a good job partnering

with the people in Montana. I’d like to continue that trend with the present administration. My No. 1 concern, of course, is the health and safety of the people of my

State and the nation. And that concern goes hand in hand with protecting our environment.

Our industrial history has left Montana with a legacy of contamination, from acid

mine drainage to asbestos. The clean-up of Montana’s sites has been a tremendous

financial and technological challenge, costing hundreds of millions of dollars. We’ve

had some terrible tragedies as well. Hundreds of people in Libby, Montana have become sick or died because of their exposure to asbestos. This asbestos originated at

a vermiculite mine nearby. Workers brought the dust home on their clothes, mine

waste was used at the local high school track. Per capita, more people have been

diagnosed with asbestos related diseases in Libby than anywhere else in the country. In short, Libby, Montana has become one of the worst industrial disasters in

the history of the nation.

It’s my top priority to ensure the residents of Libby get the help they need to

make their homes and community safe for them, their children and their grandchildren. And, to make sure that this type of disaster never happens again in this

country. I want the EPA to be able to effectively protect people from the hazards

of asbestos, and other toxic substances.

EPA is currently conducting assessments of the indoor air levels of asbestos in

Libby homes, many of which have asbestos insulation that originated at the Libby

mine. I encourage EPA to thoroughly investigate the potential danger posed by this

type of asbestos insulation in homes. Libby residents, and people from across the

country who have homes insulated with same type of asbestos, are understandably

concerned that their insulation may be increasing their exposure to harmful asbestos fibers. I will be very interested to see the results of EPA’s assessments, and to

discuss further with the Agency the potential impacts of those results, both on public health and on possible removal efforts.

I know not all of the nominees here today are involved in this issue, but I wanted

to stress its importance to me and my State, and the nation. I will be interested

to hear your views on this subject, and others, such as pesticide harmonization and

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natural resource damages. I thank you for your time, and I look forward to working

with all of you if you are confirmed.

STATEMENT OF LINDA FISHER, NOMINEE FOR DEPUTY ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman, and distinguished members of this committee. I have the honor

and pleasure to appear before you today as the nominee to be EPA’s new Deputy

Administrator. I am delighted that President Bush and Governor Whitman have invited me to become a member of their environmental team. I believe I am uniquely

qualified to support that team, and contribute to the environmental and human

health improvements that are a major goal of the Bush Administration.

President Bush and Governor Whitman are committed to continuing the tradition

of strong environmental progress that has marked this country’s history for the past

30 years. I am committed to it as well.

The American people are overwhelmingly supportive of a strong government role

in protecting the environment. The Environmental Protection Agency has met that

role with remarkable energy and enthusiasm in the past, and I am confident EPA

will continue to serve the American people with distinction under the Bush Administration. The American public 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.

To this end, I believe my previous experience at EPA will be of great benefit. As

you know, for 10 years I served in several management positions at EPA. During

that time I witnessed first-hand the personal dedication of EPA’s career staff. I saw

the importance of bringing the best possible science to bear on difficult policy questions. I saw the critical need for solid economic analysis as a bedrock support for

environmental decisions. I learned the importance of a strong enforcement program

to the credibility of the Agency’s programs. I had the opportunity to work in a spirit

of collegiality with Members of Congress in order to attain our shared environmental goals. I grew to understand the importance of involving the public in our

decisionmaking. This experience at EPA—and what I learned from it—will help me

meet the challenges that face every EPA Deputy Administrator, and will help me

provide more capable service to Governor Whitman, President Bush, and most important to the American people.

At the same time, I understand that environmental issues have evolved a great

deal since I left EPA. Numerous, widely dispersed, and smaller sources of pollution

are in some places the cause of the most serious environmental problems. New problems, like climate change, have moved to center stage. For these new and emerging

problems, the Agency’s traditional regulatory approaches, so critical to bringing

about past successes, may not be the most efficient or effective response.

For these reasons EPA is changing, too. The Agency today is testing a broader

array of regulatory and non-regulatory tools to meet new environmental challenges.

For example, over the past decade environment-related economic incentives have

proliferated at the Federal, State, and local levels. Whether they take the form of

environmental fees and charges, deposit-refund systems, marketable permits, information systems, or other voluntary programs, economic incentives have shown that

they can make a unique, effective, and low-cost contribution to the nation’s environmental efforts. Under Governor Whitman’s leadership, EPA will expand the use of

economic incentives to help solve both ongoing and emerging environmental problems.

For the last several years EPA also has undertaken a number of pilot projects to

test innovative ways of streamlining the regulatory system, making it more flexible,

and cutting red tape. State governments as well in New Jersey, for example have

taken the lead in testing promising new ways of controlling pollution from point

sources. President Bush and Governor Whitman want to shape EPA to meet the environmental challenges of the 21st century by integrating into the Agency’s whole

structure and culture the best new ideas for protecting the environment. Therefore,

over the next few months we’re going to take a hard look at these bold experiments,

and identify what works, what doesn’t work, and why. And then in partnership with

the States, we will integrate, where appropriate, the most effective ideas throughout

our programs.

Part of our incentive for incorporating innovation throughout EPA is being driven

by the business community, which like EPA is also changing to meet the challenges

of the future. More than ever before in our history, many businesses are recognizing

their role as stewards of the environment. They recognize that corporate environVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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mental stewardship and social responsibility are increasingly essential if they are

to operate successfully in the global market place. It is important to attracting the

best employees, it strengthens their relationships with their communities, and it

builds a more positive relationship with their customers and shareholders. More and

more businesses today are forming voluntary partnerships not only with EPA and

State regulatory agencies, but also with non-governmental organizations, here and

abroad. Encouraging and strengthening those partnerships with the public, with the

States and with the private sector to achieve more voluntary action, will be one of

my goals at EPA.

If tomorrow’s EPA is to fully and successfully incorporate the kinds of innovations

I’ve mentioned today innovations like economic incentives, streamlined and flexible

regulatory systems, and voluntary partnerships , then tomorrow’s EPA employees

will need different kinds of skills and training. Yet EPA today is facing serious

human resource issues. For example, 50 percent of our senior leadership may retire

within the next 5 years. Developing a diverse, well-trained work force that is well

prepared to meet new environmental challenges with a broader array of creative,

more flexible tools, may be one of the most difficult problems facing our new management team at EPA, and one that I intend to be personally involved with.

I would like to say a final word about the global environment. More and more,

US companies are operating in the global market place. My experience in the private sector, working to forge global acceptance of bioengineered agricultural products, showed me the global dynamic of many environmental issues today. Problems

as broad as climate change and as focused as pesticide residues are important to

virtually all nations, and they affect virtually everyone on earth. How this nation

and other nations respond to the environmental issues presented by worldwide economic growth and expanded global trade will directly affect not only our competitiveness, but also the quality of our global environment.

Therefore, we must work in concert with other governments if we are to attain

our mutual environmental and economic goals. During my term as EPA Deputy Administrator I will support Governor Whitman and the rest of EPA as we join in

partnership with countries to solve problems that affect this precious planet that

we all share.

Thank you very much. I will be happy to answer any questions you may have.

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RESPONSES BY LINDA FISHER TO ADDITIONAL QUESTIONS FROM SENATOR REID

Question 1. Little or nothing is known about the health effects of exposure to tens

of thousands of chemicals commonly used in this country; and the standards and

procedures for restricting chemicals under the Toxics Substances Control Act, particularly as interpreted by the court in the asbestos decision, are so cumbersome

that TSCA is not an effective tool for protecting the public from what can be very

dangerous and even deadly substances. The more I learn about cancer clusters and

disease outbreaks with suspected environmental links, the more I am convinced that

we have to place a higher priority on understanding the health impacts of chemicals

and environmental contaminants, and on protecting the public from exposure to

substances that may adversely affect their health.

As Deputy Administrator, will these be priority issues for you, and will you commit to working with me, and this committee, toward improvements in these areas?

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Response. Yes, I am committed to ensuring that EPA has the ability to effectively

regulate industrial chemicals in this country and to protect public health and the

environment. Although TSCA was passed 25 years ago this year and has not been

reauthorized since that time, it does still provide the Agency with the authority necessary to assess new chemicals coming into the marketplace, gather information on

chemicals currently produced and circulated in commerce, identify and require further testing on chemicals that may pose risks, and control production and commercial distribution of those chemicals which may pose an unreasonable risk to health

or the environment. In addition, TSCA requires chemical companies to provide the

Agency with all available scientific information regarding health and safety concerns on the chemicals that they produce.

Since the 1970’s, EPA has implemented TSCA to ensure that new chemicals are

screened prior to their introduction into the marketplace. Currently, EPA is reviewing about 1200 new chemical submissions a year. Last year, 700 were permitted to

be sold in the U.S. To address the most widely used chemicals in this country, EPA

launched the High Production Volume (HPV) Challenge program in 1998, which

asked the U.S. chemical industry to voluntarily provide health and safety data to

the public on the almost 2800 HPV chemicals. In addition, the Agency established

a voluntary initiative to gather critical data on those chemicals that may pose a risk

to children.

You may also be aware that the Agency has significant efforts underway to reduce

chemical emissions, to prevent pollution from the outset, to design and provide safer

chemicals from the start, and to work with the chemical industry to find safer chemical substitutes.

The Agency appreciates the interest that this committee has in our ability to ensure that chemicals are used safely in this country, and we stand ready to work

with you in addressing some of the challenges in implementing TSCA.

Question 2a. I am very concerned about the proposal to cut 270 positions from the

EPA enforcement staff nationwide. I think that the States play a vital role in enforcement, but the States and Federal Governments play complementary roles and

should both be sufficiently funded.

Do you think that there has been unnecessary money devoted to Federal enforcement at EPA? If so, which cases or programs do you feel should not have been

taken?

Response. I believe that the FY02 budget request has sufficient resources to sustain a vigorous environmental monitoring and enforcement program while providing

the States with additional resources to carry out delegated enforcement and monitoring activities. This will allow the Federal program to focus on those aspects of

environmental enforcement which the States cannot do, or in which they need assistance, e.g., non-delegated programs, addressing significant violations by large,

multi-State industries, or acting as backup for State and tribal enforcement efforts.

Question 2b. Can you guarantee that the States can replace all the Federal actions which would have been taken but for the funding shift?

We are not identifying specific actions that must be conducted by the States with

the grant funds. However, as the Administrator has said, the States are closer to

the environmental problems and will be able to use the grant funding effectively to

enforce environmental laws at the local level and ensure a consistent national level

of environmental enforcement.

Question 2c. Do you plan on requiring the States to use the money for strictly enforcement actions? How do you plan to measure the success of the State enforcement programs?

Response. The States will have flexibility to use the grants for enforcement and

enforcement related activities, including compliance monitoring and compliance assistance for the regulated community. States will be held accountable for their results through reporting mechanisms established in the grant guidance and agreements that will be developed during the coming months, with input from States,

Tribes, and other stakeholders.

Question 3. In light of the cuts in positions in your Office of Enforcement and

Compliance Assurance at EPA, what activities do you think might be affected? Are

there certain programs or initiatives that you are planning on protecting from these

cuts? What will you do if there is a case, for example, in a small State with a small

legal office, that the State does not have the resources to address?

Response. The enforcement programs affected by the workyear reduction will be

identified as we work with the regional offices and States during development of the

fiscal year 2002 work plans. EPA will continue to have a vital role in shaping and

carrying out the nation’s environmental compliance and enforcement program. The

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nies with facilities in more than one State, where States are not yet delegated programs, and where the Federal Government is the statutory lead. EPA will also

backup States where they cannot get the job done.

Question 4. Soon industry will begin screening tests of high production volume

chemicals, under the voluntary program worked out by EPA, Environmental Defense and the chemical industry. This is long overdue. I think the public would be

shocked to learn how little is known about the potential dangers of chemicals before

they are allowed into commerce. My question is about the need for action beyond

the HPV program. Simply comparing requirements of TSCA with those under the

Food Quality Protection Act raises some seemingly obvious deficiencies in TSCA.

Has EPA prioritized chemicals for testing, so that those that, based on current information, pose the greatest threat to health or high risk of exposure will promptly

be subject to analyses beyond HPV screening? What about chemicals that new biomonitoring data reveals are pervasive in the general population?

Response. As you know, the HPV Challenge Program, launched in October 1998,

will provide EPA and the public with Internet access to screening level health and

environmental effects data on over 2,100 widely used chemicals. The data made

publicly available through this collaborative effort will allow a diverse set of stakeholders, including Federal, State and local governments and other interested parties

to set priorities for the collection of additional information. This program will help

the Agency prioritize higher order testing and exposure analyses to ensure that risk

assessment and management activities focus on chemicals which may present the

greatest risks. In addition, EPA has established a Master Testing List (MTL) which

serves as an agenda to prioritize industrial chemical testing needs of EPA and other

Federal agencies. EPA also participates in the Organization for Economic Cooperation and Development’s (OECDs) HPV Screening Information Data Set (SIDS) Program, which screens HPV chemicals to evaluate the need for followup action from

a global perspective. The OECD process provides a platform to harmonize chemical

testing protocol and laboratory testing, as well as opportunities for international collaboration to share costs.

In December, 2000, EPA launched a pilot of the Voluntary Children’s Chemical

Evaluation Program (VCCEP) that specifically used biomonitoring data as a key parameter to identify and focus on chemicals to which children would have the highest

likelihood of exposure. EPA selected chemicals for the first tier pilot which were

found to be present according to available biomonitoring data to be present in the

human body (adipose tissue/blood/breast milk and breath) and found by existing environmental data to be present in a person’s environment( in food, drinking water,

breast milk, air). The VCCEP was developed through an extensive stakeholder involvement process. The program is designed to ensure that health effects and exposure data are made available in a phased (tiered) process. Development of such data

will allow EPA and others to evaluate potential health risks to children associated

with certain chemical exposures so that appropriate mitigation measures may be

taken. EPA will use available biomonitoring data in setting chemical risk assessment priorities.

Question 5. Shouldn’t the Congress and EPA be taking a hard look at issues

under TSCA beyond HPV testing, such as (1) whether there’s a need to more effectively set priorities to ensure prompt focus on additional testing of chemicals that

pose the greatest risk of exposure or adverse health effects, and (2) whether the current standard and mechanisms under TSCA for testing and restricting chemicals

promote timely and effective action necessary to ensure basic protections to public

health?

Response. Yes, if it is the will of Congress, the Agency stands ready to assist this

committee on efforts to address improvements to TSCA.

RESPONSES BY LINDA FISHER TO ADDITIONAL QUESTIONS FROM SENATOR VOINOVICH

Question 1. As part of my concern for the Human Capital Crisis currently affecting the Federal work force and EPA in particular I am interested in the general

work assignments of the Senior Executive Service (SES) employees. We have a lot

of talented and dedicated employees who have been in their jobs for a number of

years. I know the SES program recommends that senior managers rotate their jobs

on a regular basis. I would like a commitment from you to look into this and see

when it was last done. It is a good way of relieving job boredom and it provides

managers with an opportunity to spread their skills across the Agency and creates

a more vibrant workplace.

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Response. I too am greatly concerned by the serious Human Capital Crisis facing

the Federal work force and EPA in particular. I appreciate your thoughtful remarks

on this matter and am pleased to respond to your question regarding EPA’s efforts

to rotate members of the Senior Executive Service (SES).

You have my commitment that I will explore this issue further, but I would like

to provide some preliminary information so that I am timely in my response to your

request. As part of its overall Human Capital Strategy, EPA has been closely examining its work force, including issues such as recruitment, retention, retraining, and

retirement. This strategy focuses on the issues facing our most junior positions as

well as our those in our distinguished SES corps. We recognize that we must maintain an energized unit of senior leaders with a wide and diverse spectrum of skills

and experiences to see us through the challenges that lie ahead.

Accordingly, we have begun to consider options for an SES rotational program

that incorporates the best features of previous efforts to formally rotate members

of EPA’s SES corps. We will also integrate new and innovative approaches that will

enhance previous efforts. SES rotations will carefully assess individual and organizational needs so that the right opportunities are created and lasting benefits are

realized. This proposal will be vetted among the senior management team in the

coming weeks and finalized accordingly.

While I agree that more should and can be done to broaden the experiences of

our SES and to revitalize its members, our current SES corps is quite mobile. Please

consider the following data: approximately 59 percent of our SES employees have

been in their positions for less than 5 years; 25 percent of our SES employees have

changed positions within the last 5 years; 10 percent of SES employees at EPA are

reassigned to different positions each year; and of these reassignments, approximately 30 percent are across program or regional office lines and 10 percent are geographic.

RESPONSES OF LINDA FISHER TO ADDITIONAL QUESTIONS FROM SENATOR BAUCUS

Question 1. Do I have your commitment that you will maintain momentum on the

issues which continue to challenge the EPA in Libby, Montana, including maintaining funding, until we have a clean bill of health for the people in Libby, MT? I can’t

tell you right now exactly what we’ll need, because the situation there is fluid, but

I want to know that you are committed to doing what’s necessary to protect the people in Libby from further contamination, as quickly as possible.

Response. EPA has committed substantial resources for Libby, MT, cleanup activities and is committed to sustained funding for further cleanup action. Cleanup activities involve various commercial properties (Export Plant and Screening Plant),

some residential areas, and the school areas (including the high school track, middle

and elementary school play areas). In fiscal year 2000, EPA expended $12 M for

cleanup. Thus far in fiscal year 2001, EPA has committed $18M to clean up. EPA

is now engaged in sampling scenarios for 15–25 homes to determine the full extent

of contamination in the Libby community. In late fiscal year 2001, EPA will ascertain the need for further cleanup activity at residential properties.

Question 2. Ms. Fisher, you’ve testified in front of this committee before on asbestos related issues. As I’m sure you know, EPA tried to tighten regulations on asbestos, but ultimately failed. There is overwhelming scientific evidence and information

on the hazards of asbestos, and despite that, EPA is still not allowed to more effectively protect people from it. EPA needs the necessary tools to more effectively regulate dangerous substances such as asbestos. I want to know if you, Ms. Fisher, are

committed to working with me and the members of this committee and Congress

to make sure no further tragedies like Libby happen because of asbestos or other

toxic substances.

Response. You can be assured that I personally and the Agency will do everything

possible to ensure that there are no future situations like the one in Libby. The situation in Libby is tragic, and EPA is taking meaningful steps to help better understand and resolve the matter. Let me outline some of the steps being taken:

1. I understand that the agency is at the early stage of forming a Blue Ribbon

Panel which will seek expert views on how the Agency should proceed with our asbestos and durable fibers program. The Panel’s charge will be to explore options including but not limited to:

• Revising the current NESHAP for asbestos

• Regulatory actions

• banning products

• labeling requirements

• product reporting requirements for manufacturers and importers

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• notification and disclosure rules for property transfers • Consumer education efforts • Possible legislative action on asbestos products • Durable Fiber Testing Program • Peer review of risk assessment methodologies

2. An agency-wide Asbestos Coordination Team (ACT) was also formed over a year

ago as a way to share information within the Agency (Superfund, OPPT, Regional

offices, ORD) as well as outside the Agency with our other Federal partners (DOL,

HHS, DOT, ATSDR, CPSC).

3. The ONE (OSHA, NIOSH, MSHA, and EPA) Committee meets on a regular

basis to share information and current activities within each Agency. Both EPA and

MSHA have inspected the three remaining vermiculite mines and will continue to

do so on a regular basis to avoid another Libby-like situation. In addition, other

mines where asbestos contamination may be present have been inspected.

4. The Superfund program has conducted site assessments of the approximately

250 sites where asbestos contaminated vermiculite was processed. Of those 250

sites, 16 require more in depth assessment and possible cleanup.

5. OPPT and Region 8 in Libby are conducting a vermiculite home attic insulation

study to 1) determine if the insulation is contaminated with asbestos and 2) if so,

does that asbestos pose a risk to the home owner. In August 2000, OPPT completed

a study of vermiculite gardening products and found that while a few of the products contained low levels (<1 percent) of asbestos, the risks to consumers using

these products were minimal.

Question 3. I’m sure you know that EPA is considering placing Libby on the National Priorities List, in order to direct more funding to Libby for remediation efforts. Business folks obviously are concerned about what Superfund designation will

do to complexion of the community, that such a designation will be looked on as

a stigma, keeping business and investment away from Libby.

I want your assurance that you will not make this decision without fully exploring

the ramifications with the people of Libby, and the State of Montana. I don’t want

placing Libby on the national priorities list to take the place of other funding options.

Response. EPA is currently gathering environmental data in order to make an informed National Priorities List (NPL) listing decision in Libby, MT. EPA has monthly meetings with the Libby community (called the Community Advisory Group), in

which we obtain feedback on all courses of action related to the Libby cleanup. EPA

fully appreciates that there may be a ‘‘stigma’’ associated with listing on the NPL.

In making decisions about the best way to clean up the contamination, EPA will

maximize the use of resources as expeditiously as possible. If listing is deemed necessary, such a decision will include a timetable for removing the Libby site from the

NPL as soon as possible.

Question 4. The last 12 years of public policy on Superfund is that polluter should

pay, and that Superfund should not become a public works program relative to

clean-up. It’s a good public policy; it worked even under the first Bush Administration. However, Superfund has become a policy of containment, rather than cleanup. In over about 70 percent of Federal sites, the Record Of Decision calls for containment, not clean-up. I worry that we will get a policy of containment, not cleanup, for all superfund sites, rather than just containment in areas where permanent

clean-up is not feasible.

With the number of Superfund sites in Montana that still require substantial

clean-up efforts, obviously, this concerns me. Following the policy of the polluter

pays, and putting more emphasis on clean-up, do you have any thoughts on reforming Superfund that you could agree with?

Response. EPA is willing to work with Congress on legislative proposals that can

achieve bi-partisan support to improve Superfund. As you know, brownfields legislation is a priority of the President and has been a more immediate focus of attention

for this Administration. EPA supports S. 350, ‘‘The Brownfields Revitalization and

Restoration Act of 2001.’’ Further, EPA supports H.R. 1831, ‘‘The Small Business

Liability Relief Act.’’ I will be interested in discussing Superfund legislation with

Congress more fully as the session develops.

With respect to the selection of cleanup remedies, EPA selects remedies that address statutory provisions in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) regarding permanence and treatment. These

provisions ensure that cleanups are protective over the long term, and facilitate the

return of previously contaminated property to beneficial use. In fact, since the

Superfund program began, treatment remedies have been selected for use at 58 percent of all NPL sites.

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Question 5. Ms. Fisher, as you know, price discrepancies exist between the United

States and Canada when it comes to farm pesticides. The price charged to US farmers is sometimes almost twice as much as what the Canadian farmer pays. Generally, the Canadian and US pesticides are almost identical and are manufactured

by the same company, or related companies. Recent surveys have placed prices in

the US from 117 percent to 193 percent higher than those in Canada for virtually

the same products.

Last year, the Environmental Protection Agency was placed in the position of

being an accessory to this scheme because of the laws governing the importation of

farm pesticides. Although the EPA knew there was not an environmental or health

risk, the Agency had to stop financially strapped farmers from buying a less expensive, but identical, product from Canada. Montana farmers have been losing between 10 to 40 million dollars per.

First, what does pesticide harmonization mean to you?

Response. Pursuant to my ethics agreement of May 1, 2001 (copy attached) I stated that I would not participate in any particular matter having an effect on my

holdings in certain publicly held stocks until I divest these interests or obtain a

waiver. Among my holdings I own stock in several pharmaceutical and pesticide

manufacturing companies. I also continue to have an on-going financial relationship

with my former employer, Pharmacia Inc. As stated in my ethics agreement, I will

divest my interests within 3 months of my Senate confirmation. Until I divest these

interests or obtain a waiver, I will recuse myself from participating in the matters

related to these particular questions. I note that these questions have also been

posed to Stephen Johnson, the nominee for the position of Assistant Administrator

for Prevention, Pesticides and Toxic Substances, and I understand that he will be

providing answers to the committee.

Question 6. What actions need to be taken to have cross border availability of pesticides and what would the timeline look like?

Response. See above.

Question 7. Legislation was introduced—legislation that was drafted with the

technical help of the EPA I might add—to prevent the agency from being used in

this manner again. Unfortunately, the legislation was not passed. Thus, the Agency,

and our farmers, are going to be in the same position again this year, and the Agency will be once again be used to fix the prices our farmers pay. Legislation to solve

this problem has been introduced again this year.

Do you support this type of legislation? If legislation fails to pass Congress again

this year, how would you solve this problem?

Response. See above.

RESPONSES BY LINDA FISHER TO ADDITIONAL QUESTIONS FROM SENATOR WYDEN

Question. Last year, EPA declared almost six miles of the Lower Willamette River

as it passes through Portland, Oregon to be a Superfund site. Congress has authorized the Corps of Engineers to remove contaminated sediments from navigable waters to enhance the environment and improve water quality. The Corps and public

and private parties on the Willamette are interested in using this so-called ‘‘environmental restoration’’ authority to expedite the clean-up of the river and to reduce the

Superfund transaction costs that divert funds from actual clean-up work. In particular, they would like to enforce Superfund’s standards by working with EPA to

coordinate the Corps’ ‘‘environmental restoration’’ process with the Superfund process.

I would appreciate your help in ensuring that EPA seriously considers this creative and cost-effective approach to the clean-up of the Lower Willamette. If you are

confirmed, would you study this possible blended approach and try to make it succeed in the case of the Willamette Superfund site?

Response. The Portland Harbor site, which includes portions of the Lower Willamette River, was listed on the NPL on December 1, 2000. Since then, a Memorandum

of Understanding between EPA, six Tribal Nations, Federal and State Trustees, and

the Oregon Department of Environmental Quality has been developed. The Region

is currently negotiating an Administrative Order on Consent (AOC) and the Statement of Work (SOW) with several Potentially Responsible Parties to do the Remedial Investigation and Feasibility Study (RI/FS). Part of these negotiations involve

discussions related to the Army Corps of Engineers’ ‘‘environmental restoration ‘‘ authority. As part of the on-going activities, EPA has been working closely with the

Corps of Engineers to evaluate approaches for integrating Army Corps of Engineers

activity or funding, including environmental restoration authority, which may become available for work at the site.

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It is EPA’s expectation that we will continue to work with all parties to consider

creative, cost-effective and technically sound approaches to address the contamination at the Portland Harbor Superfund site.

STATEMENT OF JEFFREY HOLMSTEAD, NOMINEE FOR ASSISTANT ADMINISTRATOR,

OFFICE OF AIR AND RADIATION, ENVIRONMENTAL PROTECTION AGENCY

Thank you Mr. Chairman and members of the committee for the opportunity to

testify before you this morning. It is an honor to be here today as the President’s

nominee to be the Assistant Administrator of the Office of Air and Radiation. I am

especially pleased to be joined by my wife, my four children, and my parents.

I obviously hope that this committee and the full Senate will see fit to confirm

me, because I am eager to have the chance to work with Governor Christie Todd

Whitman as she starts her tenure as Administrator of the Environmental Protection

Agency. I believe that, with the support of President Bush and this committee, I

will be able to help Governor Whitman make continued improvements in the quality

of the nation’s air while at the same time making EPA’s regulatory programs more

effective and less costly.

As Senator Campbell can understand, growing up in Boulder, Colorado, gave me

a great appreciation for the environment and the outdoors. Even so, when I graduated from law school in 1987, I did not plan to spend my career working to solve

environmental problems. But after a year of practicing corporate law, I had the opportunity to serve in the White House of President George Herbert Walker Bush,

where I spent much of my time working on environmental issues. After arriving in

the White House, I soon found that the work of trying to find effective ways to protect and improve the environment was more challenging and rewarding that anything else I could imagine. I have focused my career on environmental issues ever

since. It is a great honor to be nominated by President George W. Bush to continue

working on the issues that are of such vital importance to all of us and our children.

I share Governor Whitman’s commitment to protecting the environment of the

United States and her goal of leaving the environment cleaner than she found it.

I recognize that the job for which I am seeking confirmation will present many challenges and many difficult issues. But I believe we can overcome the challenges and

resolve the difficult issues. My optimism comes from a sincere belief that we all

share the goal of using good science to identify our environmental goals, and good

policy to achieve those goals cost-effectively. Starting from this shared goal, I hope

to have the opportunity to work with all stakeholders to increase cooperation and

decrease the acrimony that has occasionally accompanied these issues in the past.

I think that we can take pride in the progress that all of us States, industry, advocacy groups, Congress, and EPA have made in cleaning the nation’s air over the

last three decades. Since 1970, when Congress first passed the Clean Air Act, we

have made many advances in the science and the art of environmental protection.

Both EPA and the States have become more effective at designing programs to

achieve our common goals. We are using more market-based strategies and other

flexible regulatory tools. More and more, State and local agencies are working with

businesses and communities to solve environmental problems as partners. EPA has

been both a partner and often a leader in these efforts. But I believe that EPA can

do even more.

In other areas of endeavor it has been said that we can see further than the people who came before us because we stand on their shoulders. Thirty-one years have

passed since the Clean Air Act of 1970, 24 years since the amendments of 1977 and

11 years since the President’s father signed the 1990 Clean Air Act Amendments

into law. Much progress has been made over the years and just as importantly,

much has been learned. These lessons put us on a path of continued progress for

the future.

Just because a program gets results does not mean it cannot be improved. An effort to make a program simpler and more flexible should not be viewed as an excuse

to make it less effective. If we are open to new possibilities, if we actively seek out

the best ideas from everyone our partners, our stakeholders, and our staff we can

develop better approaches for protecting and improving our nation’s air. By basing

those approaches on the best available science, by focusing on results and allowing

people to find innovative ways to achieve those results, we can continue to improve

the quality of the nation’s air and make our regulatory programs more effective and

less costly.

If I am confirmed, I look forward to working with you and your staffs to achieve

these goals. Thank you.

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RESPONSES OF JEFFREY R. HOLMSTEAD TO ADDITIONAL QUESTIONS FROM SENATOR

REID

Question 1. Will you, if confirmed, do everything in your power to ensure that the

Agency complies with its statutory requirement to promulgate a rule that sets

strong public health and safety standards for the protection of the public from releases of radioactive materials from the proposed Yucca Mountain site?

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Response. Under the Energy Policy Act, EPA is required to set health and safety

standards for the disposal of high level radioactive waste, including any such waste

that may be stored or disposed of at the proposed Yucca Mountain site. If I am confirmed, I will work to ensure that EPA fulfills this obligation and all other statutory

obligations that have been assigned to the Office of Air and Radiation.

Question 2. What are your views on the final rule EPA sent to OMB and what

are your plans for moving that forward?

Response. Although I have worked in the field of environmental law for almost

12 years, I have never had the opportunity to work on radiation issues, and I am

not yet familiar with the details of this rule. I understand that the Administrator

supports the need for groundwater protection at Yucca Mountain and I am supportive of this approach. Otherwise, I have not formed any views on the rule. If I

am confirmed, however, I will work to ensure that EPA meets its statutory obligations in a timely fashion, including its obligations under the Energy Policy Act.

Question 3. Once a rule is final, will you, if confirmed, do everything in your

power to ensure that all NRC and DOE activities comply with that rule and other

applicable Agency requirements, assuming the Administration proceeds with further

consideration of the Yucca Mountain site?

Response. Under the Energy Policy Act, EPA’s role is to publish a rule setting

forth standards designed to protect public health and the environment from any potential releases of radioactive materials. The Act charges the Nuclear Regulatory

Commission (NRC) with the responsibility for determining compliance with that

standard. I am confident that the NRC will do it’s job in a responsible manner and

ensure that any of DOE’s activities at the Yucca Mountain site comply with the

standards.

Question 4. Will you, if confirmed, actively oppose further action on the proposed

Yucca Mountain site if environmental data indicates that the final standard cannot

be met or is unlikely to be met?

Response. As noted above, NRC is responsible for determining compliance with

the EPA standard, and I am very confident that it will carry out its responsibilities

effectively. If I am confirmed, I will closely follow the activities of DOE and NRC

and call attention to any issues that may affect public health or the environment.

Question 5. What role should EPA have in setting radiation protection standards

in general, relative to other Federal agencies?

Response. I understand that the EPA is the only Federal agency charged with setting standards for protecting public health and the environment from avoidable exposure to radiation. Thus, the Agency develops guidance for all other Federal agencies to follow. As part of this process, EPA sets ‘‘fence line’’ standards for NRC-licensed and Department of Energy (DOE)-owned facilities. I am supportive of EPA’s current role.

Question 6. Please describe your role in the White House Counsel’s office and the

work that you did for or as part of Vice President Quayle’s Council on Competitiveness: In particular, please describe positions that you may have taken with respect

to Clean Air Act regulations or opinions on then-pending legislation or litigation, including the landmark Wisconsin Electric Power Company case on new source review.

Response. I served in the White House Counsel’s Office from 1989 to 1993—first

as Assistant Counsel to the President (from 1989 to 1990) and then as Associate

Counsel to the President. During my time in the Counsel’s Office, I worked on a

wide variety of issues, including government ethics and matters of constitutional

law. My primary focus, however, was environmental law and policy. I was part of

a small White House group that worked with Federal agencies and Departments on

a broad range of environmental issues, including the implementation of the Clean

Air Act Amendments of 1990.

I was not a member of the Council on Competitiveness; nor did I work for the

Council on Competitiveness. My boss, C. Boyden Gray, was the Counsel to the

President and was one of several senior officials who attended meetings of the Council on Competitiveness. Because I was often responsible for doing the staff work to

prepare him for these meetings, I had the opportunity to interact on a regular basis

with the staff of the Competitiveness Council.

I was not involved in the Wisconsin Electric Power Company case on New Source

Review. Nor was I involved in any other litigation involving the Clean Air Act. Although I was not part of the Administration’s legislative team that was working on

the 1990 Clean Air Act Amendments, I was involved in developing some of the Administration’s positions on the 1990 Amendments—primarily on Title V. (Much of

the work to develop the Administration’s positions on the 1990 Amendments had

been done before I arrived at the White House in August 1989.)

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I was involved in numerous meetings and discussions (probably hundreds) about

Clean Air Act regulations and other issues that arose during the implementation

of the 1990 Amendments. Because my White House files were Federal records, I was

not able to retain any of them when I left the White House. As a result, I do not

have a record of all the Clean Air Act issues I may have worked on. Listed below

are the significant issues that I can recall, and the positions I took on them:

• Title V Operating Permit Regulations—I worked with EPA staff to ensure that

the Title V program would allow for necessary operational flexibility. Along with

many other people in the Administration, I was concerned that Title V had the potential to become an NSR-type pre-approval? program that would require facilities

to go through a lengthy review process to make even minor changes.

• Recycling Requirement for Waste Combustors—I (and many others in the Administration) questioned whether it was legitimate under the Clean Air Act for EPA

to require operators of Waste Combustors to sort and recycle materials from the

wastes that were shipped to them for incineration.

• Use of Contingent Valuation Studies—At several meetings regarding a proposal to address visibility impairment in the Grand Canyon, I questioned the use

of contingent valuation studies as a way to calculate benefits.

• Acid Rain Program—I was a strong proponent of the acid rain trading program

and was involved in numerous meetings to discuss technical issues related to how

it would function. I do not recall specific issues or the positions I took on them.

• Air Toxics Regulations—Again, I was involved in numerous meetings related

to the Title III program designed to reduce emissions of hazardous air pollutants

(HAPs). In general, I advocated the use of sound science in ranking HAPs under

Section 112(g) and the use of subcategories to ensure that EPA did not use a ‘‘onesize-fits-all’’ approach for developing MACT standards.

Question 7. During your tenure in the White House Counsel 195 office, did you

have any role in or do work on private property rights legislation or litigation? Do

you believe that any public health or environmental protections unconstitutionally

limit private property rights?

Response. I do not recall working on private property rights legislation or litigation, although it is possible that I may have attended meetings at which these

issues were discussed. I agree with the Supreme Court that, under certain circumstances, government actions designed to protect the environment may constitute

a ‘‘taking’’ of private property that would require the government to pay just compensation.

Question 8. Did you, at any point during your tenure in the White House Counsel’s office, formally recommend changes to the Clean Air Act? If so, what changes

did you recommend?

Response. As noted above, I was involved in developing some of the Administration’s positions on the 1990 Amendments to the Clean Air Act. I do not recall ever

recommending that further changes be made to the Clean Air Act after the 1990

Amendments were passed by Congress and signed by the President.

Question 9. Have you advocated any changes to the Clean Air Act since your tenure at the White House? If so, what changes did you advocate and on whose behalf

did you advocate them?

Response. In several meetings with clients over the last 8 years, I have discussed

possible changes to the Clean Air Act. In these meetings, I have discussed the pros

and cons of making certain changes to the Act. However, I do not believe that I have

ever advocated any changes to the Act on behalf of any client (or on behalf of anyone

else).

Question 10. Are there any other changes to the Clean Air Act that you have publicly advocated?

Response. As noted above, I do not believe that I have ever publicly advocated

any changes to the Clean Air Act.

Question 11. Do you support the revised NAAQS for ozone and PM–2.5 as published in 1997?

Response. The Supreme Court has endorsed EPA’s efforts to protect the health

of millions of Americans from the dangers of air pollution, and has affirmed the

Agency’s constitutional authority to set these kinds of health protection standards

in the future. Congress delegated to EPA the standard-setting function, and the

Court found that EPA has carried it out appropriately. The Agency is continuing

to defend these standards in court and is preparing the way for their implementation. I am supportive of these actions.

Question 12. What views, if any, have you expressed publicly or in litigation regarding the science underpinning the revised ATAAQS for ozone and PM–2.5?

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Response. I have not publicly expressed any personal views regarding the science

underpinning the revised NAAQS for ozone and PM–2.5. Nor have I been involved

in any litigation on the subject. I did represent a client during the rulemaking process and submitted comments on it’s behalf. These comments are attached.

Question 13. Did you participate in any litigation regarding the NAAQS while in

private practice? If so, please describe the positions that you advocated and the clients involved.

Response. I did not participate in any litigation regarding the NAAQS while in

private practice.

Question 14. What are your views on the recent Supreme Court decisions on the

revised NAAQS for ozone and PM–2.5 and the NOx SIP call?

Response. The Supreme Court’s decision on the revised NAAQS for ozone and

PM–2.5 is obviously important for several reasons. It affirmed the constitutionality

of a key provision of the Clean Air Act. It also affirmed EPA’s long-standing interpretation that the Clean Air Act precludes EPA from considering cost when setting

these health-based standards, while also noting that cost can be considered in implementing the standards. Although the decision settled these key issues, it also

made clear that the Agency must reevaluate its implementation strategy and seek

to harmonize subparts I and II of Part D of Title I. This will be a substantial challenge and, if I am confirmed, I will look forward to working on it.

The Supreme Court decision on the NOx SIP Call let stand an important decision

by the Court of Appeals for the District of Columbia Circuit. The D.C. Circuit’s decision upholding the NOx SIP Call will (1) help protect public health in the eastern

portion of the United States, and (2) allow States to use an innovative trading program that provides industry the flexibility to achieve the necessary emission reductions in the most cost-effective way.

Question 15. Will you work to make the new nonattainment area designations for

the new ozone standard, as required by law, as expeditiously as possible?

Response. If I am confirmed, I intend to move forward expeditiously with all the

necessary steps to implement the new ozone standard. These steps include designating nonattainment areas and developing an implementation strategy that responds to the Supreme Court’s remand.

Question 16. What are your views on EPA’s UvB proposal now pending at OMB

and will you pledge to move it forward expeditiously?

Response. Although I am aware of the importance of this proposal, I have not reviewed it. Nor have I closely followed the scientific questions involved. As a result,

I cannot comment on the proposal. If I am confirmed, I will do my best to ensure

that a proposed rule is published expeditiously.

Question 17. Some Senators have called for changes to the new source review

process. Does this require legislation or should such changes be accomplished

through regulation?

Response. The Agency has been reviewing the new source review program and

working with stakeholders to determine how the new source review program should

be modified so that we can achieve our environmental goals more efficiently. If I

am confirmed, I would like to do a thorough but efficient study of the NSR program.

When that study is complete, I will work with the various stakeholders to determine

whether any appropriate changes should be done through regulation or legislation.

Question 18. The Agency has begun a number of enforcement actions against

power plant owners for violating new source review requirements. Do you agree

with Administrator Whitman’s publicly reported position that those actions should

not be dropped? Will you support continued and vigorous enforcement using the criteria that led to those enforcement actions?

Response. I agree with Administrator Whitman that it is important to ‘‘first offer

the carrot, but not to retire the stick.’’ In my view, EPA should set clear standards

and then vigorously enforce them. With respect to the current NSR enforcement actions against power plant owners, I have not been involved in any of those actions

and am not familiar with the criteria that led to them.

Question 19. According to several sources, you are or were an adjunct scholar at

Citizens for the Environment, which is affiliated with Citizens for a Sound Economy. Please explain that group’s purpose and mission and it’s relationship to CSE,

and your role as it related to policy position or political campaign development.

Response. In 1993, shortly after I left the White House, a former government colleague who was then working with citizens for the Environment (CFE) asked me

if I would testify on behalf of CFE on a bill that would elevate EPA to cabinet status. In May 1993, I testified in support of the bill at a joint hearing of the Environment, Energy, and Natural Resources Subcommittee and the Legislation and NaVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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tional Security Subcommittee. (A copy of my written testimony is attached.) Because

I worked with CFE staff to prepare the testimony and was testifying on behalf of

CFE, I became an adjunct scholar at CFE.

At that time, CFE was (and I believe still is) a nonprofit, nonpartisan organization that searches for market-oriented solutions to environmental problems. It was

created in 1990 under the auspices of the Citizens for a Sound Economy Foundation,

an educational foundation based in Washington D.C.

In about 1995, I also made a lunchtime presentation to CSE staff to provide general background information on the Clean Air Act. Although I may have attended

one or two other meetings at CSE, I have not done any further work with CSE or

CFE. Except for the position in support of the 1993 bill to elevate EPA to cabinet

status, I have not been involved in developing any policy positions for CSE or CFE.

Nor have I been involved in any political campaign development activities with CSE

or CFE.

Question 20. What policy positions, if any, has Citizens for the Environment taken

with respect to the Clean Air Act or the Agency’s radiation protection responsibilities, while you have been a member?

Response. Although I have served as an adjunct scholar to CFE, I do not believe

that I have ever been a member of CFE. I have not worked with CFE to develop

any positions on Clean Air Act or radiation protection issues and am not aware of

any position that CFE may have taken on any such issue.

Question 21. If these two groups are affiliated closely, such as sharing board members or funding sources or staff resources, please explain what policy positions that

Citizens for a Sound Economy has taken with respect to the Clean Air Act or the

Agency ? radiation protection responsibilities, while you have been a member of the

Citizens for the Environment?

Response. As far as I know, I have never been a member of CSE. I have not

worked with CSE to develop any positions on Clean Air Act or radiation protection

issues and am not aware of any position that CSE may have taken on any such

issue.

Question 22. Please list any other political affiliations with or your membership

in groups that have proposed amending the Clean Air Act or other statutes which

the Asst. Administrator for Air and Radiation must implement. Please include the

major proposals and the organizations’ missions.

Response. As far as I know, no group that I am a member of or otherwise affiliated with has proposed any amendment to the Clean Air Act or any other statute

that the Assistant Administrator for Air and Radiation must help to implement. I

have certainly not been involved in developing any such proposal.

Question 23. Apparently, while at Latham and Watkins, you co-authored a book

with the Environmental Law Institute on pesticide regulation. Have you advocated

changes to the Food Quality Protection Act or FIFRA? If so, what changes did you

advocate and on whose behalf?

Response. I have been in several client meetings at which possible changes to the

Food Quality Protection Act (FQPA) have been discussed. However, I have never advocated any such changes in public. One or more of my clients may have supported

legislation to amend the FQPA, but I was not involved in developing such legislation

or in any effort to advocate for it.

Question 24. Do you believe that implementation of the FQPA is proceeding quickly enough to remove dangerous pesticides from use and production?

Response. Under the FQPA, EPA must reassess all existing pesticide tolerances

in accordance with a statutory schedule. I understand that EPA has complied with

this schedule and continues to place a high priority on reassessing pesticides that

appear to pose the greatest risk. I believe that the Agency is strongly committed

to the task of removing dangerous pesticides from use and production.

Question 25. As you may know, the accident prevention provisions of the Clean

Air Act were amended recently because of FBI and industry concerns about providing worst-case scenario data on the Internet. Does the public have a right to

know about the potential for catastrophic chemical/toxic air accidents that could affect individuals ’property and their community?

Response. I believe that the public should have access to information about potential accidental air releases in their communities. I also believe, however, that this

type of public access must be balanced against the need to protect those same communities against terrorist acts. I understand that the Office of Solid Waste and

Emergency Response has issued a final rule under section 112(r) of the Clean Air

Act regarding the availability of this information, but I am not familiar with that

rule.

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Question 26. What role should the Air program office play in reducing greenhouse

gas emissions, pursuant to our treaty commitments under the U.N. Framework Convention on Climate Change to reduce those emissions to 1990 levels?

Response. I believe that the Office of Air and Radiation (OAR) should continue

to play its historic and important role in reducing greenhouse gas emissions. I believe that the programs run by OAR have and will continue to achieve significant

results. Domestically, since President George H.W. Bush established the first programs (Green Lights and ENERGY STAR) in 1992, OAR has entered into thousands

of voluntary partnerships with large and small businesses, State, and local governments, and others. The programs are reducing the growth in U.S. greenhouse gas

emissions, while saving money for American families and businesses. In addition,

OAR is working with auto manufacturers to develop dramatic fuel economy improvements in all types of motor vehicles, from cars to heavy duty trucks. OAR also

has a large program of bilateral cooperation activities which help further reduce

greenhouse gas emissions. Work is focused in countries that are large greenhouse

gas emitters and that offer large ‘‘win-win’’ opportunities for reducing emissions— countries with economies in transition to a free market and key developing countries.

Question 27. Will you, if confirmed, ensure that this committee and its staff receives timely and useful technical assistance from the Air program offices should we

begin work on preparing legislation to require reductions in greenhouse gases from

electric power generators or other sectors?

Response. Yes. The Agency’s policy has long been to provide timely and useful

technical assistance at the request of this committee and its staff. If confirmed, I

will use my best efforts to see that the Office of Air and Radiation faithfully adheres

to this policy.

Question 28. As you may know, the Administration has not yet released guidance

to the stales on best available retrofit technology (BART) under the regional haze

rule, despite requests from several Governors and environmental groups. There does

not seem to be any need to delay the BART proposal. What would your plans be

with respect to this important matter?

Response. I have not made any specific plans with respect to the BART Guidance.

I recognize its importance and know that it is a high priority action that needs (and

is receiving) a thorough review by Governor Whitman and her staff. If I am confirmed, I will do my best to ensure that this guidance is completed and released in

a timely manner.

Question 29. As you may know, Administrator Whitman indicated at her nomination hearing that she and the President believe that Federal facilities should be

treated the same as private facilities, in terms of compliance with environmental requirements. Do you agree?

Response. I support the position of the President and the Administrator that Federal facilities should be held to the same environmental standards that apply to private facilities. This issue is a priority for her and, as she has said, it will require

significant coordination among Federal agencies and with the States, tribal governments, and Congress.

Question 30. What are the greatest challenges awaiting the next Assistant Administrator for Air and Radiation?

Response. Obviously, there are a number of important and challenging issues that

face the Office of Air and Radiation. They include making continued progress in

cleaning the air, reducing the number of people living in nonattainment areas, reducing the number of asthma attacks in children, reforming new source review, and

many others. Perhaps that greatest challenge is finding a way to bring stakeholders

together to find appropriate solutions for these and other issues. Because we all

share the goal of using good science to protect the environment in the most efficient

and cost effective manner possible, I believe that we should be able to work together

and find ways to address the legitimate concerns of all stakeholders.

TESTIMONY OF JEFFREY R. HOLMSTEAD ON BEHALF OF CITIZENS FOR THE ENVIRONMENT ENVIRONMENT, ENERGY, AND NATURAL RESOURCES SUBCOMMITTEE LEGISLATION AND NATIONAL SECURITY SUBCOMMITTEE

MAY 6, 1993

Good morning. My name is Jeff Holmstead. I am an attorney with. the law firm

of Latham & Watkins, but this morning I am not representing my law firm or any

of it clients. Rather, I am appearing on behalf of Citizens for the Environment (also

known as CFE), where I serve as an adjunct scholar. I very much appreciate the

opportunity to appear before you this morning.

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Citizens for the Environment is nonprofit, nonpartisan organization that searches

for market-oriented solutions to environmental problems. CFE was created in 1990

under the auspices of the Citizens for a Sound Economy Foundation, an educational

foundation based in Washington, DC. that has over 250,000 members nationwide.

As an organization that is committed to the free market, we recognize the important role played by the Environmental Protection Agency. While many people, including our organization, question the intervention of the Federal Government into

the private market in many areas, it is clear that, because of market failures, protecting the environment is not only a valid but an important function of government. Because individuals and firms do not bear the full social cost of any pollutants that they discharge into the environment—so-called negative externalities the

private market will not effectively control such discharges. Therefore, to correct this

market failure, it is important for the government to take action to ensure that individuals and firms internalize the full social costs of their actions. In recognition of

this important role played by the Environmental Protection Agency, we support its

elevation to cabinet status.

We believe that there are also other reasons for Congress to elevate the Agency

to cabinet status. First, it is clear that the American people are committed to the

protecting the environment. Making the Agency a department and giving it a place

at the cabinet table will reflect the importance that we as a country place on environmental protection. Second, as others have noted, most other countries have accorded cabinet or ministry status to the agencies responsible for environmental protection in their countries. Although the State Department is charged with conducting international negotiations—including negotiations involving environmental

issues—the interests of the United States may be better served in such negotiations

by giving our Environmental Protection Agency a status equal to that of its counterparts in other countries.

Third, and perhaps most important, we believe that elevating EPA to cabinet status will bring more political accountability to the Agency. Currently, the United

States spends more of its resources on environmental protection than any other

country in the world. Most estimates suggest that the cost of environmental regulation in the United States is currently between $100 and $150 million a year. By

the end of the decade, this number is expected to reach close to $200 million—about

3 percent of our gross national product. Most Americans have come to realize in recent years that such regulatory costs are the equivalent of a hidden tax that is

added to the cost of virtually every product or service they buy.

While there is no doubt that most Americans are willing to have their resources

spent on environmental protection, they also expect—. and have a right to expect

. . that those resources will be spent wisely. If they are unhappy about the actions

that the Federal Government is taking to protect the environment either because

of the level of protection provided or the way in which their resources are being

spent—? they should be able to express their dissatisfaction in the voting booth. Yet

many people still regard EPA as an independent agency that is largely outside the

President’s control. We believe that, in order to ensure that the President is politically accountable for the Agency’s actions, it is important for the Agency to be recognized as part of his cabinet.

We also believe that the agency should be elevated in a straightforward manner

without unnecessary legislative mandates. Quite apart from the concerns that we

have about several of the proposals that have been discussed in recent months, we

are strongly of the view that such a ‘‘clean’’ bill has the best chance of being enacted. If history is any guide, the more the bill is loaded up with extraneous measures, the less its chances of actually being passed by the Congress and signed by

the President. We therefore urge the Subcommittee to support a clean bill that

would elevate the Agency to cabinet status.

Because of our interest in ensuring political accountability, the only additional

measures we would support are those designed to enhance public scrutiny of the

Agency’s actions. For instance, we would support a measure along the lines of that

sponsored by Senator Johnston that would require rules promulgated by the new

Department to be accompanied by an analysis comparing the costs of the rule with

the risks to human health and the environment that the rule is meant to address.

Similarly, we would support a requirement similar to Senator Murkowski’s proposal

to require public cost-benefit assessments for certain rulemakings.

We have particular concerns about certain proposals that the Subcommittee is

considering. We do not believe that it is necessary or desirable to create a separate

Bureau of Environmental Statistics. Under its current structure, the Agency already

can (and does) collect and assess all the data that would come under the jurisdiction

of the new Bureau. Adding new bureaucracy would simply require more expenditures of taxpayer dollars at a time when there is significant public sentiment for

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cutting government spending. We are also concerned that such a Bureau may create

the illusion that many important environmental issues are purely statistical, when

in fact they are much more complicated. For example, risk assessments appear to

be exclusively a scientific and statistical exercise, when in fact they contain a number of important policy assumptions. We are concerned that if risk assessments or

similar environmental analyses are assigned to a separate Bureau within the Agency, these sorts of policy choices will not be subject to necessary public scrutiny.

We also oppose other proposals that would be unnecessary or duplicative. For instance, some have suggested the creation of a new Commission to study the Agency’s structure and operations. Numerous groups—both inside and outside the Federal Government., have already studied such issues. Although the issues themselves

may warrant further consideration, we question whether taxpayer dollars should be

used to create a commission to study them further at this time. Such a commission

is likely to be viewed as yet another unnecessary government expenditure at a time

when the public is demanding fiscal restraint.

In conclusion, Citizens for the Environment supports the elevation of the Environmental Protection Agency to cabinet status. We urge the Subcommittee to do just

that, without additional measures that will add unnecessary costs and reduce the

chances of final passage. The only additional measures we would support are those

specifically designed to enhance the public accountability of the new department.

Again, I appreciate the opportunity to appear before you this morning. I would

be pleased to answer any questions that you may have.

Question 31. One of the items you mentioned in answer to the pre-hearing questions was your work on regulations to implement Title V of the Clean Air Act, specifically on the operating permit program. Some have characterized your involvement as advocating less public participation in that permitting process than the law

requires and allows. Is that accurate? And, if so, should public or citizens’ participation be limited in permit decisions that might increase pollution in their neighborhood?

Response. I strongly support public participation in regulatory decisions, including

the right of citizens to comment on significant permitting decisions. I have never

advocated the use of less public participation in the permitting process than the law

requires. I have always taken the position that EPA should strike the proper balance to ensure that (1) the public has an opportunity to comment on significant permitting actions and (2) the permitting process provides sufficient flexibility for facilities to make minor changes without the need to go through a lengthy and burdensome process. Requiring a public process for insignificant changes hurts businesses

by unnecessarily delaying actions, hurts permitting agencies that are understaffed

and overworked by creating additional workload, and hurts the public by diverting

attention from truly important regulatory actions. I believe that lines can be drawn

between significant and insignificant actions and that State and local permitting

agencies can be trusted to ensure that actions are properly characterized.

I also believe that some of the new permitting ideas that EPA has been exploring,

such as Plant-wide Applicability Limits or PALs, are promising and should be further investigated. PALs focus public comment on a relatively few situations. The

PAL approach gives the public a meaningful opportunity to comment on the full

range of air issues associated with a facility, and also provides the facility with an

appropriate amount of flexibility.

Question 32. As you may know, the Sierra Army Depot in Herlong, California, was

recently recognized as the largest air polluter in California. That facility, which conducts open burning and detonation of old munitions, sends the bulk of its toxic emissions downwind into the Washoe Valley, affecting thousands of Nevadans. The Depot’s Title V permit is now being revised and the public and I have had a chance

to comment on those revisions and the relevant regulations and guidance. Should

the public have been excluded from the opportunity to comment on that permit revision?

Response. No. There is clearly a role for the public in the Title V permitting process, and the role the public played in the permitting of the Sierra Depot is an appropriate one. In this case, citizens requested that EPA reopen the Depot’s permit to

correct several alleged flaws. The Washoe County District Health Department also

wrote in support of this request. As I understand it, EPA examined the permit and

found that it did, in fact, contain flaws that would justify a reopening. Under EPA

regulations, when a Title V permit is reopened, the public must have an opportunity

to comment on a draft of the corrected permit. As you note, such an opportunity

was afforded in the case of Sierra Depot. In addition to your comments, several concerned citizens, citizen groups, and a nearby Indian Tribe also submitted comments

on the proposed permit, as revised. I understand that the Lassen County Air PolluVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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tion Control District is considering all these comments is d?veloping its final permit,

which is expected to be issued very soon.

Question 33. Would it be your intention to prepare and support imposition of a

Federal Implementation Plan for those States that refuse to complete adequate final

SIP revisions to satisfy the NOx SIP Call by the statutory deadline?

Response. If confirmed, I will work to ensure that the emission reductions associated with the NOx SIP Call are achieved. My hope is that we will be able to work

with the States to ensure that they submit plans to achieve these reductions without having to resort to Federal implementation plans. Although I believe that we

will be able to accomplish this goal, I would support the use of a Federal plan for

any State that may refuse to complete an adequate final SIP revision.

Question 34. I was glad to read in your answers that you believe the BART (best

available retrofit technology) guidance is a high priority, since that will help implement the Regional Haze rule. This will help assure that our scenic vistas in the

West are not diminished. What did you mean when you wrote that you ‘‘questioned

the use of contingent valuation studies as a way to calculate benefits in rules . . .

to address visibility impairment in the Grand Canyon?’’ How else do you recommend

that the government and the public assess the intangible benefits of these scenic

vistas? Do you believe that it is EPA’s responsibility to ensure that air quality related values, such as visibility, are protected?

Response. I believe that EPA has an important responsibility to protect and enhance air quality related values such as visibility. I also believe that the Agency

must use the full range of analytical tools, including contingent valuation studies,

in deciding how to protect these values. It is important, however, to recognize both

the strengths and the limitations of all analytical tools, including contingent valuation studies.

As you may know, in the context of visibility issues, a contingent valuation study

is often based on a survey in which people are shown two photographs of a scenic

vista—one that shows a clear view of the scene and another that shows a hazy view

of the same scene. They are then asked how much they would be willing to pay to

make the hazy scene look like the clear one. By extrapolating their answers to a

much bigger population (perhaps the entire population of the United States), the researchers then estimate the total monetary value of improving the scenic vista in

question. As many researchers have acknowledged, there are several problems with

this approach. First, studies have suggested that the amount someone may say they

would be willing to pay for a particular ‘‘good’’ is often quite different than the

amount they are actually willing to pay when offered the opportunity to purchase

it. Second, unless properly designed, contingent valuation surveys tend to understate uncertainties. For example, in the case of visibility, there is an implication

that regulatory action can make the ‘‘hazy vista’’ look ’like the clear one. In fact,

however, actual visibility may depend on a variety of factors, many of which cannot

be controlled by regulatory action.

Notwithstanding the limitations of contingent valuation studies, I believe that

they can be useful tools for decisionmakers who must decide how to protect visibility

and other intangible benefits. In the end, I believe that publicly accountable officials

should use an open process to consider all the available information and weigh all

the relevant factors. Then they should exercise their best judgment in deciding how

to protect and enhance air quality related values and explain their decision to the

public.

Question 35. I would appreciate your reassurance that you are committed to openness and transparency in the Federal regulatory review matters involving the Clean

Air Act. As you know, the Clean Air Act contains many requirements to ensure that

citizens are capable of obtaining information on these Federal processes. In particular, I would like to know that you intend to comply with the spirit and letter

of section 307(d)(4)(i) of the Act and will not seek to modify that provision or the

regulations implementing that section.

Response. As noted above, I strongly support an open rulemaking process. From

my own experience, I know that many stakeholders have valuable information and

insights that can only be provided through an open process. I will comply with section 307(d)(4)(i) and do not intend to seek modification of that provision or any regulations implementing it.

Question 36. The answers to the pre-hearing questions are a little confusing on

one last point. Were you or were you not a member of Citizens for the Environment

(CFE) and Citizens for a Sound Economy (CSE)?

Response. As I explained in my answers to the pre-hearing questions, I have

served as an Adjunct Scholar to CFE. which is affiliated with CSE. In those answers

to the pre-hearing questions, I stated that I do not believe that I have ever been

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a member of CFE’’ and that. ‘‘[a]s far as I know, I have never been a member of

CSE.’’ I qualified my answers because I thought it was possible that one or both

of these organizations might consider me a member because of my service as an Adjunct Scholar, even though I have taken no other action to become a member. After

receiving your follow-tip questions, I contacted CSE to see whether they have any

record of my being a member of either organization. As of now (when my responses

are due), I have not received a response. All I can state is that I cannot recall ever

taking any action (such as paying dues) to become a member of either organization,

and I do not receive any sort of membership benefits (such as publications) from

either organization.

Question 37. As you know, the EPA is often criticized for failing to have an adequate scientific basis for many of its policy decisions. During her nomination hearing, Administrator Whitman pledged to address this problem by making ‘‘science the

foundation for EPA’s policymaking.’’ ’What steps would you lake as the Assistant

Administrator to ensure sound science is used in the policymaking process at the

Office of Air and Radiation?

Response. The quality and credibility of EPA’s policy decisions depend on sound

assessment of the best available scientific information. I believe that EPA, as a

whole, has made important progress in improving the quality of scientific research,

scientific assessment, and the peer review process upon which it relies—and that

the air office has taken part in this process. In this regard, recent developments include the Research Coordination Teams for defined strategic goals, multi-year planning (such as that encouraged by the NRC for particulate matter), an Agency-wide

Science Inventory, and an expanded grants program to invite fresh ideas from the

academic community.

Even with this progress, I think more can be done. If I am confirmed, I intend

to encourage continued improvements within the Office of Air and Radiation and

in the Agency as a whole. I agree with many of the NRC recommendations for improving science at EPA, including developing scientific leadership and talent, a balanced and stable research program, developing partnerships and outreach to other

Federal Departments, States, universities, industry, and other countries, holding

both our research and regulatory programs accountable to periodic review, and implementing and improving the peer review process.

I would look forward to working closely with EPA’s Office of Research and Development and others in the Agency to improve the quality and relevance of scientific

research and to insure our draft regulations undergo scientific scrutiny within and

outside the agency. The recent outreach and review of the NATA project by EPA’s

Science Advisory Board is an example of the way in which we can improve our assessment of air toxics. If confirmed, I intend to hold the work of my staff to the

highest standards in ensuring the quality of our work, and to encourage the development of procedures to determine how well things are working on a continuous

basis.

Question 38. There is substantial uncertainty about the health effects of low-level

radiation, although this is a potential threat to the American people from a variety

of sources. According to the EPA, however, the sound science initiative does not include funding for radiation. Do you believe the EPA should make understanding

low-level radiation exposure an element of the sound science performance goal?

Response. While there is some uncertainty associated with the risk estimates of

low radiation exposures, all major scientific organizations and national and international regulatory agencies currently use the Linear No Threshold (LNT) model as

the basis for their radiation protection strategies. Although EPA uses this approach,

it is also sponsoring and closely following two important activities to evaluate health

effects at low levels of’ radiation. The first is the National Academy of Sciences,

BEIR VII, study to assess the dose-response relationship at low exposures based on

new data from Japanese survivors. Second, EPA is closely following the Department

of Energy’s (DOE’s) Low Dose Radiation Research Program, a $20 million, 10-year

effort to evaluate health risks from exposures to low levels of radiation by looking

specifically at the biological mechanisms that cause cancer.

If I am confirmed, I will work to ensure that EPA’s radiation science continues

to incorporate the best available information. I also will work with the EPA’s Office

of Research and Development (ORD) to determine whether radiation science work

done by OAR should be included in the GPRA Sound Science Performance Goal that

is managed by ORD.

Question 39. The EPA is responsible for establishing the radiation release standards for Yucca Mountain. The EPA has, however, come under pressure from the Nuclear Regulatory Commission and the Department of Energy to modify parts of the

standard. Do you believe the EPA should be the lead agency in setting this standVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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ard? Do you believe the EPA should apply the same standards to drinking water

supplies to Yucca Mountain as it applies to drinking water supplies throughout the

rest of the country? Will you work to make sure the standard which is released by

the EPA truly reflects the best judgment of the EPA and not that of the NRC or

DOE?

Response. I am supportive of EPA’s role as the lead agency in setting radiation

release standards for Yucca Mountain. As Governor Whitman has said, protection

of groundwater at Yucca Mountain is important for current residents and future

generations. As stated in my answers to the pre-hearing questions, I have not been

involved in policy discussions on Yucca Mountain, but if I am confirmed before the

Yucca Mountain standards are established, I will seek to ensure that they reflect

EPA’s best judgment.

Question 40. In your response to pre-hearing questions you indicated ‘‘The EPA

is the only Federal agency charged with setting standards for protecting public

health and the environment from avoidable exposure to radiation.’’ Could you please

explain what you mean by ‘‘avoidable’’? What determines the level of radiation exposure that should be avoidable? Does high cost of compliance make some radiation

exposure unavoidable?

Response. Everyone is exposed to background levels of radiation that are unavoidable. Examples include naturally occurring radioactive materials in air and water,

and cosmic radiation from the sun, which increases at higher elevations. EPA defines avoidable exposure as radiation from man-made activities that create new radioactive isotopes (such as nuclear power plants) or that concentrate those found in

nature (such as radon in homes). I do not believe that compliance costs or technical

achievability should be a significant factor in determining whether risks are considered to be avoidable or unavoidable. In my view cost and technical achievability

should be considered in determining the best way to reduce the risk from radiation,

regardless of how it is classified.

Question 41. There is considerable overlap of regulatory responsibility between

the Nuclear Regulatory Commission and the EPA on radiation standards. For example, the Nuclear Regulatory Commission has considered developing standards for

the release of metals from nuclear weapons facilities or commercial power plants

that may have some contamination through the material. This material should also

be regulated by the Environmental Protection Agency as this material may enter

general commerce and appear in everyday household products. Also the Nuclear

Waste Policy Act gives the EPA and NRC separate responsibilities for setting and

enforcing radiation standards at Yucca respectively. But the EPA has general responsibilities for protecting the public and environment from radiation exposure,

and should enforce those at Yucca Mountain. In your response to my pre-hearing

question regarding the role of the EPA in setting general radiation protection standards, you indicated ‘‘EPA sets ’fence-line’ standards for NRC-licensed facilities and

DOE-owned facilities.’’ Do you believe the EPA should also regulate products such

as contaminated metals coming from these facilities that may be recycled into consumer products? What about ensuring compliance with radionuclide standards for

air emissions from these facilities as well? Do you agree that the EPA should apply

this ‘‘fence-line’’ standard at Yucca Mountain as well?

Response. While EPA is not currently developing standards for recycling radioactive materials, the Agency is following the activities of the National Academy of

Sciences and the Nuclear Regulatory Commission (NRC) to ensure that these materials are addressed in a responsible manner. EPA’s current efforts are focused on

controlling the indiscriminate or accidental loss of sealed radiation sources that

have the potential to cause a greater risk to the public if ruptured in scrap yards

or steel mills. In the meantime, we are regulating air emissions from DOE’s facilities under our National Emission Standard for Hazardous Air Pollutants, Subpart

I-I. With regard to Yucca Mountain, EPA’s proposed standard addressed all exposure pathways, including air.

RESPONSES OF JEFFREY R. HOLMSTEAD TO ADDITIONAL QUESTIONS FROM SENATOR

SMITH

Question 1. Describe your role as a ‘‘contact’’ during a 1998 lobbying campaign related to EPA rules designed to address interstate air pollution.

Response. In 1998, I was a partner at the law firm of Latham & Watkins. Among

other Things, I was responsible for overseeing the firm’s compliance with the Lobbying Disclosure Act (LDA). In this regard, my primary responsibilities were (1) to

educate my colleagues about their obligations (and the firm’s obligations) under the

LDA; (2) to ensure that anyone at the firm who became a ‘‘lobbyist’’ within the

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meaning of the LDA was promptly registered as such; and (3) to ensure that the

firm filed semiannual reports on the ‘‘lobbying activities’’ of any of its partners and

employees. Because I was responsible for the firm’s LDA compliance, I was listed

as the ‘‘contact’’ person on all the LDA forms submitted by the firm, even though

I was never a lobbyist.

I had no involvement in the lobbying campaign mentioned above. Nor do I have

any recollection of this effort or who may have been involved in it. If I was listed

as a ‘‘contact,’’ I assume that my law firm must have filed an LDA report regarding

these lobbying activities. I believe that a review of the LDA forms submitted by

Latham & Watkins during 1998 will show that I am listed as the contact person

on all such forms.

I would also like to address two other issues that have been raised in recent press

reports. A recent article in the BNA Daily Environment Report states that, when

I served in the White House Counsel’s Office, I was ‘‘detailed’’ to the Competitiveness Council. This is simply incorrect. I was never detailed to the Competitiveness

Council (or anywhere else).

Second, according to the same article, a group called the Clean Air Trust claims

that I ‘‘testified before Congress in favor of requiring EPA to consider costs in developing air quality standards under the Clean Air Act.’’ Again, this is simply incorrect.

I have never testified on this issue. Until last week, when I had the opportunity

to appear before your committee, the only time I gave testimony to Congress was

in 1993, when I testified in support of a proposal to elevate EPA to cabinet status.

A copy of this testimony was attached to my answers to the pre-hearing questions.

In my testimony, I said that, although I generally preferred a ‘‘clean’’ bill that

would simply elevate EPA to cabinet status, I could support ‘‘a measure along the

lines of that sponsored by Senator Johnston that would require rules promulgated

by [EPA] to be accompanied by an analysis comparing the costs of [a] rule with the

risks to human health and the environment that the rule is meant to address.’’ Senator Johnston’s measure would not have done anything to change the Agency’s approach for setting air quality standards under the Clean Air Act.

RESPONSES OF JEFFREY R. HOLMSTEAD TO ADDITIONAL QUESTIONS FROM SENATOR

VOINOVICH

Question 1. During your nomination hearing you were asked whether you supported the 1997 NAAQS for ozone and particulate matter, yes or no. Considering

the pending litigation and the planned scientific review I do not believe a simple

yes or no suffices, particularly since the Agency is currently reassessing the science.

Would you please elaborate on your answer.

Response. As you know, the Supreme Court recently resolved two key issues related to the 1997 NAAQS for ozone and particulate matter (PM)—that the statutory

provision under which EPA sets the NAAQS is not an unconstitutional delegation

of legislative power and that EPA may not consider costs in setting the NAAQS.

However, the 1997 NAAQS for ozone and PM are still under review by the U.S.

Court of Appeals for the District of Columbia Circuit (the D.C. Circuit). The Agency

is committed to defending these standards in court and is preparing the way for

their implementation. Like Governor Whitman, I am supportive of these actions.

I also recognize, however, that the Agency may still need to respond to legal or

policy issues that may arise from the ongoing litigation in the D.C. Circuit. At a

minimum. EPA must still respond to the D.C. Circuit’s remand to consider whether

ground-level ozone has a beneficial effect by providing protection against UvB radiation. If I am confirmed, I will work to ensure that EPA responds to this and any

other issues raised by the D.C. Circuit expeditiously and based on sound science.

With respect to the on-going reassessment of the science, I support the Agency’s

goal of completing the scientific review of PM health effects before fully implementing the PM 2.5 standard that EPA set in 1997. I understand that this review

is well under way. If I am confirmed, I will work to ensure that it is completed as

expeditiously as possible. in accordance with the requirements of a thorough scientific review.

Question 2. As you may know, the Science Advisory Board was highly critical of

the first draft report under EPA’s Residual Risk program for Secondary Lead Smelters. The SAB identified a number of assessments and analysis that they found were

either missing or incomplete such as population risks and uncertainty analysis. The

report acknowledged that of the 174 source categories, the Lead Smelter Industry

should be one of the easiest Reports since the industry is relatively data-rich. In

fact the SAB noted ‘‘lack of data will likely pose much greater problems when other

source categories are addressed in the future, appropriate recognition of this probVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00075 Fmt 6633 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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lem is needed by both Congress and the Agency in order to develop an adequate

data base to support the residual risk analysis program. ‘‘ I am concerned that over

the last 10 years this issue has been ignored by the Agency. Will you commit to

conducting a review, when you are confirmed, to ascertain the state of the Agency’s

preparedness for the residual risk program, identifying the steps and timeline for

the Agency to complete the necessary work?

Response. Based on my prior work in the private sector, I understand the challenges that EPA faces in trying to develop a data base that will allow the Agency

to evaluate the need for residual risk standards and to develop such standards

where necessary. I understand that the Agency has already started a process to review the needs of this program and to set a time line for completing the necessary

work. If I am confirmed, I will closely follow these efforts and work to ensure that

the Agency has an effective strategy for meeting the needs of the residual risk program.

Question 3. As you are probably aware, several reports have been issued within

the last 10 years critical of the overall quality and independence of the science supporting EPA regulations. These include EPA’s own report in 1992, Safeguarding the

Future: Credible Science, Credible Decisions, and more recently, the National Resource Council’s 2000 report, Strengthening Science at the U.S. EPA. What are your

thoughts on ways to strengthen the science behind important clean air regulatory

decisions, such as rules on air toxins and criteria pollutants?

Response. The quality and credibility of EPA’s policy decisions depend on sound

assessment of the best available scientific information. I believe that EPA, as a

whole, has made important progress in improving the quality of scientific research,

scientific assessment, and the peer review process upon which it relies—and that

the air office has taken part in this process. In this regard, recent developments include the Research Coordination Teams for defined strategic goals, multi-year planning (such as that encouraged by the NRC for particulate matter), an Agency-wide

Science Inventory, and an expanded grants program to invite fresh ideas from the

academic community.

Even with this progress, I think more can be done. If I am confirmed, I intend

to encourage continued improvements within the Office of Air and Radiation and

in the Agency as a whole. I agree with many of the NRC recommendations for improving science at EPA, including developing scientific leadership and talent, a balanced and stable research program, developing partnerships and outreach to other

Federal Departments, States, universities, industry, and other countries, holding

both our research and regulatory programs accountable to periodic review, and implementing and improving the peer review process.

I would look forward to working closely with EPA’s Office of Research and Development and others in the Agency to improve the quality and relevance of scientific

research and to insure our draft regulations undergo scientific scrutiny within and

outside the agency. The recent outreach and review of the NATA project by EPA’s

Science Advisory Board is an example of the way in which we can improve our assessment of air toxics. If confirmed, I intend to hold the work of my staff to the

highest standards in ensuring the quality of’ our work, and to encourage the development of procedures to determine how well things are working on a continuous

basis.

Question 4. I believe exposure data is an area the EPA has virtually ignored. In

testimony before the Senate Environment and Public Works Committee, Dr. Mort

Lippmann, Interim Chair of EPA’s Scientific Advisory Board (SAB), criticized the

‘‘highly conservative nature of unit risk factors for air toxins’’ and urged EPA to

support efforts to develop an alternative approach to quantifying health effects from

air toxins that would yield more ‘‘realistic’’ estimates of population impacts. This is

a critical point given that EPA is about to issue a number of residual risk standards

for air toxins. Would you support this effort to develop an alternative approach to

quantifying risks from air toxins that would result in more realistic estimates of

population risks?

Response. Yes. I believe that EPA should take steps to make sure that its programs are based on the best possible estimates of real-world exposure. I understand

that, as part of the residual risk program, EPA intends to conduct population-based

risk assessments in order to ascertain the full distribution of exposures and risks

within a population. EPA is already working toward developing alternative methods

to support such population-based risk estimates. I also understand that EPA recently held a workshop to address this topic in conjunction with the SAB. The Agency has committed to support followup efforts to this workshop as well as additional

efforts within and outside the Agency. I am supportive of these efforts.

69

RESPONSES BY JEFFREY R. HOLMSTEAD TO ADDITIONAL QUESTIONS FROM SENATOR

BAUCUS

Question 1. Can you assure this committee that should you be confirmed, clean

air standards will be premised solely on sound science?

Response. If I am confirmed, I will work to ensure that all actions taken by the

Office of Air and Radiation are based on sound science. As you know, a recent decision by the Supreme Court made it clear that the Agency may not consider costs

when its sets national ambient air quality standards (NAAQS). I can assure the

committee that, if I am confirmed, I will work to ensure that any actions related

to the NAAQS are consistent with this decision.

RESPONSES BY JEFFREY R. HOLMSTEAD TO ADDITIONAL QUESTIONS FROM SENATOR

LIEBERMAN

Question 1. One of the more important regulatory initiatives for the air quality

in my home State of Connecticut is the NOx SIP call, which would greatly reduce

the ozone pollution transported into Connecticut from States to the West. Could you

comment on your view of the SIP call and your plans to enforce it?

Response. I believe that the NOx SIP Call represents a cost-effective approach for

improving air quality in many areas of the Eastern United States. If I am confirmed, I will work to ensure that the emission reductions associated with the NOx

SIP Call are achieved. My hope is that we will be able to work with the States to

ensure that they submit plans to achieve these reductions without having to resort

to Federal implementation plans. Although I believe that we will be able to accomplish this goal, I would support the use of’ a Federal plan for any State that may

refuse to complete an adequate final SIP revision.

Question 2. Another problem of concern to the State of Connecticut is the fuel additive MTBE, which is required under the Clean Air Act’s oxygenate requirement

. Do you support giving States relief from the oxygen mandate if it will not result

in any environmental harm?

Response. I know that the use of MTBE has raised concerns about contamination

of drinking water and groundwater. Clean air and clean water are equally important, and I do not believe that we should pursue one at the expense of the other.

The Clean Air Act has a specific provision that allows EPA to waive the oxygenate

requirement under certain conditions. I support giving States relief from the oxygenate requirement if they can show that these conditions are met. I would also be open

to legislative action to address the issue of MTBE.

Question 3. I have also been very interested in pursuing comprehensive, multipollutant legislation to control emissions from power plants. In our hearing on climate change 2 weeks ago, however, it became clear that any such legislation must

include a commitment to reduce carbon or it will not provide the regulatory certainty that our utilities need. Regrettably, President Bush’s energy plan released

today only proposed regulating three pollutants. What approach would you advocate?

Response. If I am confirmed, I will look forward to working with the committee

to develop comprehensive, multi-pollutant legislation to control power plant emissions. I understand the need for regulatory certainty for electric utilities. I support

the President’s position on a multi-pollutant bill, and I believe that the Administration’s approach will provide the regulatory certainty needed.

Question 4. One issue that this administration must face is climate change. In recent weeks, a number of Senators, including Senators Stevens and Byrd, have expressed concern about this issue. Senator Byrd even pointed out the need for mandatory commitments to reduce our carbon emissions. Could you please comment on

what approach you would recommend we take on this critical issue.

Response. Like President Bush and Governor Whitman, I take the issue of climate

change very seriously. As you may know, the Administration is now conducting a

cabinet-level review to develop a climate change policy that protects and the environment, consumers, and the economy. I understand that the cabinet-level group is

trying to identify the policies that the United States should pursue domestically and

internationally. Governor Whitman is a member of the team reviewing our policy

options. The President has said that he is optimistic that, by working constructively

with our friends and allies through international processes. we can develop technologies, market incentives, and other innovative approaches to global climate

change. if I am confirmed, I look forward to participating in this important effort.

The Office of Air and Radiation has a great deal of expertise in several areas important to developing policy responses to the issue of climate change, including:

70

using voluntary programs to achieve energy efficiency gains and the reduction of

various greenhouse gases; doing research to demonstrate more energy efficient vehicle technologies: and using emissions trading programs that help lower the costs of

achieving environmental protection goals. I support these kinds of approaches, as

well as any others that the President may decide to pursue in regard to climate

change.

Question 5. I applaud the Bush Administration’s decision to move forward earlier

this year with the implementation of new diesel fuel and engine standards for 2007.

The rulemaking was exhaustive and inclusive and I believe has arrived at a resolution that will benefit all interested parties. In that regard, I am concerned about

any effort to open the rule to review, especially in light of the need to provide certainty for business planning, as requested by the affected industries. Could you comment on your plans to implement the rule and whether you have any plant to initiate a review of it?

Response. EPA remains committed to implementing the 2007 heavy-duty vehicle

and fuel standards—and to the environmental objectives that they will achieve. The

Agency has announced that it will seek an independent review of progress made by

the engine manufacturers and oil refiners toward meeting the program requirements. Although EPA has not decided what independent group will conduct the review, the Agency anticipates that it will begin in mid–2002 and conclude by early

2003.

Question 6. I am troubled by the recent recommendation by President Push in his

National Energy Plan that the Attorney General review existing enforcement actions regarding New Source Review to ensure that the enforcement actions are consistent with the Clean Air Act and its regulations.

The Clean Air Act defines ‘‘modification’’ as a physical change o?r change in the

method of operation that increases the amount of an air pollutant emitted by the

source. 42 U.S.C. § 7411(a). By regulation, EPA exempted from the definition of

‘‘physical change’’ those projects which are routine maintenance, repair and replacement. EPA historically has analyzed the ‘‘routine maintenance’’ exemption by using

a test that assesses four primary factors—(1) the nature and extent; (2) purpose;

(3) frequency; and (4) cost of the proposed work. See Memorandum from Don R.

Clay, EPA Acting Assistant Administrator for Air and Radiation, to David A. Kee,

Air and Radiation Division, EPA Region V (Sept. 9, 1988); Letter from Don R. Clay,

Acting Assistant Administrator for Air and Radiation, to John W. Boston, (Feb. 15,

1989). This approach was upheld by the Seventh Circuit Court of Appeals. WEPCo

v. Reilly, 893 F.2d 901 (7th Cir. 1990). EPA’s more recent use of the same test in

its enforcement case against TVA also was upheld by the EPA Environmental Appeals Board. Tenn. Valley Auth., 9 E.A.D. CAA Docket No. 00–6 (U.S. Envtl. Prot.

Agency, Sept. 15, 2000), EAB Final Order.

In view of this legal background, do you agree that EPA’s interpretation of the

NSR provisions, and in particular, the routine maintenance exception, as exemplified in the WEPCO and TVA cases, is a correct interpretation of the Clean Air Act

and applicable regulations?

Response. As you know, there is considerable controversy surrounding this issue.

The Agency believes that its interpretation of the NSR provisions is a correct interpretation of the Clean Air Act and the applicable regulations, and I have no reason

to question this view. As I understand it, however, some companies believe that

EPA is currently interpreting certain factors in a new and improper way. The President has asked the Department of Justice (DOJ) to review this issue in the context

of certain cases, and I hope that DOJ will complete this review very quickly. In the

meantime, EPA and its co-plaintiffs are continuing to litigate and to negotiate in

the hope of reaching appropriate settlements in these cases.

RESPONSES BY JEFFREY R. HOLMSTEAD TO ADDITIONAL QUESTIONS FROM SENATOR

CLINTON

Question 1. As some States move to phaseout MTBE, do you support providing

States with relief from the oxygen mandate under the Clean Air Act in cases where

such relief would provide both price relief at the pump and improve the environmental performance of gasoline?

Response. The Clean Air Act has a specific provision that allows EPA to waive

the oxygenate requirement under certain conditions. I support giving States relief

from the oxygenate requirement if they can show that these conditions are met. I

would also he open to legislative action to address this issue.

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Question 2. Please provide an outline of the specific timelines and emissions reductions that you would support as part of a multi-pollutant bill. In addition, please

describe those mechanisms that you would support in legislation for achieving these

emissions reductions in a timely and cost-effective manner?

Response. The Administration has just started to put together a multi-pollutant

bill. If I am confirmed, I look forward to working to develop of this bill and to securing its passage by Congress. As this time, however, I cannot provide you with specific timelines and emission reduction levels. I believe that the Administration’s bill

will establish a flexible. market-based program (with appropriate measures to address local concerns) to significantly reduce and cap emissions of sulfur dioxide, nitrogen oxides and mercury from electric utilities. I believe that such reductions

should he phased-in over a reasonable time while providing market-based incentives

such as emission trading credits to achieve the required reductions.

RESPONSES BY JEFFREY R. HOLMSTEAD TO ADDITIONAL QUESTIONS FROM SENATOR

CORZINE

Question 1. Earlier this year, the Supreme Court upheld the 1997 air quality

standards. Are these standards appropriate in your view? And are you committed

to implementing them?

Response. As you indicated, the Supreme Court recently affirmed the Agency’s

constitutional authority to set these kinds of health protection standards. However,

the 1997 NAAQS for ozone and PM are still under review by the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit). The Agency is committed to defending these standards in court and is preparing the way for their implementation. Like Governor Whitman, I am supportive of these actions.

The Agency may still need to respond to legal or policy issues that may arise from

the ongoing litigation in the D.C. Circuit. At a minimum, EPA must still respond

to the D.C. Circuit’s remand to consider whether ground-level ozone has a beneficial

effect by providing protection against UvB radiation. If I am confirmed, I will work

to ensure that EPA responds to this and any other issues raised by the D.C. Circuit

expeditiously and based on sound science. I will also work to ensure that the Agency

takes all actions that are necessary to implement the NAAQS as quickly as possible.

Question 2. The Supreme Court decided in EPA’s favor earlier this year on the

‘‘NOx SIP call’’. Not all of the States have submitted revisions for their State Implementation Plans, and the deadline is approaching. Are you committed to preparing

and implementing a Federal Implementation Plan for States that fail to submit

their own plans?

Response. If confirmed, I will work to ensure that the emission reductions associated with the NOx SIP Call arc achieved. My hope is that we will be able to work

with the States to ensure that they submit plans to achieve these reductions without having to resort to Federal implementation plans. Although I believe that we

will be able to accomplish this goal, I would support the use of a Federal implementation plan for any State that may refuse to complete an adequate final SIP revision.

Question 3. EPA’s ‘‘New Source Review’’ actions against power plants have been

the subject of considerable controversy. Do you think that these actions should continue? If you haven’t yet studied the specifics of the cases, ’can you explain the

framework and criteria you would use to evaluate the issue?

Response. I am aware that there is considerable controversy surrounding these

cases. As you anticipated, however, I have not studied the specifics of these cases

or the arguments made by the power plants. I understand that these cases are continuing while the Department of Justice (DO.!) reviews them in accordance with the

National Energy Policy Report. EPA career staff’ recently met with their counterparts at the Department of Justice to begin determining the framework for the DOJ

review. I believe that the review should be, based on the law as written and on prior

precedent in the area. Governor Whitman recognizes that a lengthy review process

could prove problematic and has asked Attorney General Ashcroft to conduct his review as expeditiously as practicable.

72

LATHAM & WATKINS,

March 12, 1997

Office of Air and Radiation

Docket and Information Center

Attention: Docket No. A–95–54

U.S. Environmental Protection Agency,

401 M Street, SW

Washington, DC

RE: PROPOSAL TO ESTABLISH NAAQS FOR FINE PARTICLES

DEAR SIR OR MADAM: On behalf of the Electronic Industries Association (ETA), we

hereby submit the enclosed comments on the Environmental Protection Agency’s

proposal to establish National Ambient Air Quality Standards (NAAQS) for fme particles. 61 Fed. Reg. 65638 (Dec. 3, 1996). If you have any questions or need further

information, please contact me at 202–637–2287.

Sincerely yours,

JEFFREY R. HOLMSTEAD of Latham & Watkins

LATHAM & WATKINS,

March 12, 1997

Office of Air and Radiation

Docket and Information Center

Attention: Docket No. A–95–54

U.S. Environmental Protection Agency,

401 M Street, SW

Washington, DC

RE: PROPOSED INTERIM IMPLEMENTATION POLICY

DEAR SIR OR MADAM: On behalf of the Electronic Industries Association (ETA), we

hereby submit the enclosed comments on the Environmental Protection Agency’s

proposed Interim Implementation Policy on New or Revised National Ambient Air

Quality Standards (NAAQS). 61 Fed. Reg. 65752 (Dec. 13, 1996). If you have any

questions or need further information, please contact me at 202–637–2287.

Sincerely yours,

JEFFREY R. HOLMSTEAD of Latham & Watkins

LATHAM & WATKINS,

March 12, 1997

Office of Air and Radiation

Docket and Information Center

Attention: Docket No. A–95–54

U.S. Environmental Protection Agency,

401 M Street, SW

Washington, DC

RE: ANPR ON IMPLEMENTATION OF NEW OR REVISED NAAOS

DEAR SIR OR MADAM: On behalf of the Electronic Industries Association (ETA), we

hereby submit the enclosed comments on the Environmental Protection Agency’s advance notice of proposed rulemaking (ANPR) that seeks comments on the future implementation of new or revised National Ambient Air Quality Standards (NAAQS)

for ozone and fine particles. 61 Fed. Reg. 65764 (Dec. 13, 1996). If you have any

questions or need further information, please contact me at 202–637–2287.

Sincerely yours,

JEFFREY R. HOLMSTEAD of Latham & Watkins.

73

March 12, 1997.

COMMENTS BY THE ELECTRONIC INDUSTRIES ASSOCIATION BEFORE THE UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY ON THE PROPOSED NATIONAL AMBIENT AIR

QUALITY STANDARDS FOR PARTICULATE MATTER

NATIONAL AMBIENT AIR QUALITY STANDARDS FOR PARTICULATE MATTER, PROPOSED

RULE

A–95–54

61 Fed. Reg. 65638

David Isaacs, Esq., Deputy General Counsel and Staff Director, Environmental Affairs, Electronic Industries Association.

Timothy I. Mohin of Intel Corporation,

Joe Downing III of Texas Instruments.

Chairpersons of the EIA Clean Air Working Group

Of Counsel:

Jeffrey R. Holmstead,

David A. Kass,

Latham & Watkins

March 12, 1997.

COMMENTS BY THE ELECTRONIC INDUSTRIES ASSOCIATION BEFORE THE UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY ON THE PROPOSED RULE FOR THE IMPLEMENTATION OF NEW OR REVISED OZONE AND PARTICULATE MATTER, NATIONAL AMBIENT

AIR QUALITY STANDARDS

Interim Implementation Policy on New or Revised Ozone and Particulate Matter

National Ambient Air Quality Standards, Notice of Proposed Policy

A–95–38

61 Fed. Reg. 65752

David Isaacs, Esq., Deputy General Counsel and Staff Director, Environmental Affairs, Electronic Industries Association.

Timothy I. Mohin of Intel Corporation,

Joe Downing III of Texas Instruments.

Chairpersons of the EIA Clean Air Working Group

Of Counsel:

Jeffrey R. Holmstead,

David A. Kass,

Latham & Watkins

March 12, 1997.

COMMENTS BY THE ELECTRONIC INDUSTRIES ASSOCIATION BEFORE THE UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY ON THE PROPOSED RULE FOR THE IMPLEMENTATION OF NEW OR REVISED OZONE AND PARTICULATE MATTER, NATIONAL AMBIENT

AIR QUALITY STANDARDS AND REGIONAL HAZE REGULATIONS

Implementation of New or Revised Ozone and Particulate Matter National Ambient

Air Quality Standards and Regional Haze Regulations, Advance Notice of Proposed

Rulemaking

A–95–58

61 Fed. Reg. 65764

David Isaacs, Esq., Deputy General Counsel and Staff Director, Environmental Affairs, Electronic Industries Association.

Timothy I. Mohin of Intel Corporation,

Joe Downing III of Texas Instruments.

Chairpersons of the EIA Clean Air Working Group

Of Counsel:

Jeffrey R. Holmstead,

David A. Kass,

Latham & Watkins

74

(March 12, 1997)

INTRODUCTION AND SUMMARY

The Electronic Industries Association (EIA) submits these comments on the proposals by the United States Environmental Protection Agency (EPA) to (I) establish

new National Ambient Air Quality Standards (NAAQS) for fine particles, 61 Fed.

Reg. 65638 (Dec. 13, 1996); (2) revise the NAAQS for ozone, Id. at 65715; (3) adopt

an ‘‘interim implementation policy’’ relating to the new or revised NAAQS for fine

particles and ozone, Id. at 65752; and (4) seek comment on future implementation

issues relating to the new or revised NAAQS, Id.. at 65764. In these comments, EIA

will not address EPA’5 proposal to establish a new reference method and other requirements for monitoring ambient levels of fine particles, Id. at 65780, but will address all the other proposals that EPA published on December 13, 1996.

These comments were prepared by EIA’s Clean Air Working Group, which has the

active participation of major U.S. electronics manufacturers EIA is the oldest and

largest trade association representing the U.S. electronics industry. It is comprised

of more than 1,000 member companies that design, manufacture, distribute and sell

electronic parts, components, and systems for consumer, commercial, military, and

aerospace use. EIA has been involved in a broad range of implementation and flexibility issues under the Clean Air Act (CAA). Our focus has been on ensuring the

compatibility of CAA requirements with the hundreds bf routine process upgrades,

advancements, and innovations that an electronics or other high technology manufacturer must undertake each year to compete in the global marketplace, to control

costs, to maintain quality, to meet corporate pollution prevention goals, and to satisfy new regulatory requirements.

EIA strongly supports the goals of the Clean Air Act and recognizes the importance of setting the NAAQS at levels that will protect human health and the environment. Over the years, EIA and its members have worked cooperatively with EPA

and with state and local governments to develop and implement innovative programs that are designed to protect and improve the quality of our nation’s air, while

at the same time addressing the flexibility needs of the electronics industry? As discussed further below, the technologically dynamic nature of the electronics industry

distinguishes it from other traditional manufacturing sectors. For this reason, ETA

has focused its advocacy efforts on addressing the unique flexibility needs of its

members. . As part of this effort, ETA was pleased to participate in the EPA-sponsored Pollution Prevention in Permits (‘‘P4’’) Pilot, which resulted in the first captype permit for an electronics facility.

The American electronics industry is proud of its environmental record and

strongly supports measures needed to protect public health and the environment.

In this case, however, ETA has several serious concerns about EPA’s proposals to

revise the ozone NAAQS and establish new NAAQS for fine particles. It also has

concerns .about the approach that will be used to implement such standards if they

are adopted. ETA’s views, which are discussed more fully in the body of the comments, are summarized below:

Proposed Revisions to the NAAQS for Ozone

• EPA’s Clean Air Scientific Advisory Committee (CASAC) concluded that the

proposed NAAQS for ozone would not be ‘‘significantly more protective of public

health’’ than the current standard, and that there is no ‘‘bright line’’ that distinguishes the current ozone standard from any other standard under consideration.

CASAC letter of November 30, 1995. As a result, CASAC stated that the selection

of any specific standard for ozone is strictly a ‘‘policy judgment.’’ Id.

• In making this policy judgment, EPA should consider the costs of lowering the

ozone standard. Under these circumstances, nothing in the Clean Air Act precludes

the Agency from taking costs into account when setting the NAAQS. Indeed, where

there is no scientific basis for choosing one standard over another, we believe it

would be arbitrary and capricious not to consider the costs of achieving alternative

standards.

• EPA estimates that the imposition of all reasonably available control measures

would cost approximately $2.5 billion a year and would only allow ‘‘partial attainment’’ with the proposed NAAQS for ozone. The cost of control measures that would

be required to reach full attainment are almost certain to be much higher:

• The establishment of a new NAAQS would also impose significant costs on

state and local governments. EPA estimates that, under the proposed standard, the

number of ozone nonattainment areas would roughly triple. This would impose an

enorrnous burden on state and local agencies, which would be required to go

75

through a lengthy planning process to gather data and develop programs to meet

the new standards. • Although the electronics industry is not a significant source of ozone precursors, many electronics manufacturers have made key planning decisions based on

the current NAAQS for ozone. For example, many companies have taken steps to

ensure that their facilities will not be treated as ‘‘major sources’’ under various EPA

programs—an approach that helps to protect air quality while providing the facilities with operational flexibility. A change in the NAAQS standard has the potential

to undermine this approach. • Thus, lowering the ozone NAAQS would impose significant costs on governments, businesses, and consumers, but would not result in meaningful health benefits. Under these circumstances, EPA should not lower the NAAQS for ozone. Specifically, EPA should either retain the current ozone NAAQS or establish an equivalent standard with a longer averaging period. If EPA decides to switch to a longeraveraging period, it should select a standard that will not undermine the programs

that government agencies and businesses have developed to meet the current standards.

Proposed NAAQS for PM2.5

• EPA and its scientific advisors have acknowledged that there is much uncertainty about the health effects of fine particles. Based on the current record, it is

not clear that the proposed NAAQS for PM2.5 is. necessary to protect the public

health. Indeed, in light of the uncertainty about fine particles, there may be little

or no public health benefit from the proposed NAAQS for PM2.5. • According to EPA, it will cost approximately $6 billion a year to achieve even ‘‘partial attainment’’ with the proposed standards. The cost of full attainment is

likely to be much higher. • Under these circumstances—where there are uncertain health benefits and

certain (and significant) costs—EPA should not establish new standards for PM2.5

at this time. Rather, the Agency should retain the current PM standards until such

time as further research can address the significant uncertainties about the health

effects of fine particles. In this regard, we note that EPA is seeking congressional

funding for a major research program that is specifically designed [t]o reduce the

great uncertainty about PM’s health effects.’’ Budget of the U.S. Government, Fiscal

Year 1998.

Proposed Interim Implementation Policy

• The technologically dynamic nature of the electronics industry distinguishes it

from other traditional manufacturing sectors. To avoid obsolescence, a typical electronics manufacturing facility will undergo numerous chemical and equipment alterations in the span of a single year and will install several completely new generations of technology during its operational lifetime. In order to be competitive in the

global marketplace, an electronics facility must have the flexibility to make these

changes quickly. • If EPA proceeds to establish an interim implementation policy, the policy

should be designed to preserve the operational flexibility that the electronics industry and other quick-to-market industries need to remain competitive internationally. • Under EPA’s proposed interim implementation policy, all ‘‘moderate’’ ozone nonattainment areas would automatically be reclassified as ‘‘serious’’ nonattainment

areas. Among other things, this would lower the major source threshold in these

areas from 100 tons per year to 50 tons per year. As a result, many facilities that

currently qualify as minor sources would become major sources and thus would potentially be subject to a lengthy permitting process when making physical or operational changes. • Such an automatic ‘‘buildup’’ would not result in substantial emissions reductions and should not be included in any interim implementation policy.

Long Term Implementation issues

• If the Agency proceeds to revise the ozone NAAQS or establish new NAAQS

for PM2.5, it should develop an innovative and flexible implementation policy that

will achieve cost-effective emissions reductions without hampering operational flexibility. • Such a policy should be designed to spread the compliance burden fairly among

industrial, public, and governmental sectors. The policy should not focus exclusively

on private manufacturing facilities.

• The implementation policy should not lower major sources thresholds or otherwise expand existing permitting processes that could prevent quick-to-market companies from making physical or operational changes that are needed to respond to

the changing demands of the marketplace.

76

1In support of this position, some commentators have referred to the 1980 decision by the

D.C. Circuit Court of Appeals in Lead Industries Association v. EPA, 647 F.2d 1130 (D.C. Cir.

1980). This case, however, addressed the issue of whether EPA is required to take costs into

account when developing NAAQS, not whether the Agency has the discretion to consider costs

if it so chooses. In Lead Industry, the petitioner argued that the Clean Air Act required EPA

to consider costs when setting the NAAQS. Not surprisingly, the Court rejected this argument.

Although there is some language in the Lead Industries decision indicating that EPA is precluded from considering costs when setting NAAQS, this language is clearly dicta, and is not

part of the Court’s holding. Neither this nor any other case has held that EPA lacks the discretion to consider costs when setting or revising the NAAQS.

• Many states have developed so-called ‘‘minor NSR’’ programs that take into account the flexibility needs of the electronics industry. These programs, which have

been carefully crafted to protect air quality while allowing flexibility, should not be

reopened under any long-term implementation policy.

• The nature of the electronics manufacturing process results in high air flow

volume with low concentrations of pollutants. Under these circumstances, states

have developed regulatory requirements for electronics facilities that rely on pollution prevention, work practices, and other environmental management techniques

to control emissions. Such programs should be left in place.

I. THE PROPOSED STANDARDS

A. EPA Should Base the Proposed Revision to the Ozone NAAQS on Sound Science

and Should Take Other Relevant Factors Into Account

EIA strongly supports the goals of the Clean Air Act and recognizes the importance of setting the NAAQS at levels that will protect human health and the environment. ETA also believes, however, that the Agency must rely on sound science

and widely accepted principles of public policy when developing the NAAQS. EPA’s

Clean Air Scientific Advisory Committee (CASAC), a group of scientific experts established by the Clean Air Act and appointed by the EPA Administrator, has reviewed the scientific data regarding the health effects of ozone, and has concluded

that the scientific evidence does not point to any specific level as being appropriate

for the ozone NAAQS. In reviewing the scientific data regarding the health effects

of ozone, CASAC concluded as follows:

[T]here is no ‘‘bright line’’ which distinguishes any of the proposed standards

(either the level or the number of allowable exceedances) as being significantly

more protective of public health. For example, the differences in the [estimated]

percent of outdoor children responding between the present standard [0.12 ppm

averaged over 1 hour] and the most stringent proposal (8-hour, one exceedarice,

0.07 ppm) are small and their ranges overlap for all health endpoints.

CASAC letter of November 30, 1995. Thus, there is no scientific basis for concluding that the proposed ozone standard would necessarily provide greater health

benefits than the current standard. For this reason, CASAC specifically stated that,

within the range of standards being considered by EPA, the selection of a specific

standard was not a scientific issue, but was strictly a ‘‘policy judgment.’’ Id. EPA

itself acknowledged this fact in the preamble to its proposal to revise the NAAQS

for ozone. See 61 Fed. Reg. at 65727.

In making this policy judgment, EPA should consider the costs of lowering the

ozone standard. EPA has historically taken the position that, under the Clean Air

Act, it may not consider the costs of establishing the NAAQS, but must set them

based solely on scientific evidence about health and environmental effects.1 In this

case, however, CASAC has stated that the scientific evidence alone does not point

to any particular standard, and that the standard must. be based on other policy

considerations. Under these circumstances, nothing in the Clean Air Act precludes

the Agency from taking costs into account when setting the NAAQS. Indeed, where

there is no scientific basis for choosing one standard over another, we believe that

it would be arbitrary and capricious not to consider the costs of achieving alternative standards.

EPA has estimated that the cost of ‘‘partial attainment’ with the proposed ozone

standards would be approximately $2.5 billion per year. See EPA Ozone Regulatory

Impact Analysis (Ozone RIA). For at least two reasons, however, this estimate significantly understates the likely cost of the ozone proposal. First, the Agency was

not able to identify enough control measures to allow 24 of the projected ozone nonattainment areas to reach attainment with the proposed standard, and therefore did

not include the full cost of reaching attainment in those areas. In fact, according

EPA’s analysis, there are four cities (Los Angeles, New York City, San Diego, and

77

Bakersfield) where the control measures identified by EPA would not be sufficient

to attain even the current standard. See Appendix A of the Ozone RIA.

Second, EPA’s cost estimates only include the cost of actual control measures, and

do not include the planning and other costs that would be borne by businesses and

government agencies. These costs could also be substantial. EPA estimates that,

under the proposed standard, the number of ozone nonattainment areas would

roughly triple. This would impose an enormous burden on state and local environmental agencies, which would be required to go through a lengthy planning process

to gather data and develop policies and programs to meet the new standards.

Although the electronics industry is not a major source of ozone precursors, it

would likely be adversely affected by the proposed ozone standard. Many electronics

manufacturers have made key planning decisions based on the current NAAQS for

ozone. For example, many companies have taken steps to ensure that their facilities

will not be treated as ‘‘major sources’’ under various EPA programs. This approach

not only benefits the companies by ensuring that they will have operational flexibility, but also benefits the environment by capping potential emissions from these

facilities. A change in the NAAQS standard has the potential to undermine this approach and cause significant disruptions in the electronics industry.

We understand the need to invest in clean air and a healthy environment, and

we do not object to any regulatory requirement simply because of the burden that

it may impose on our industry. Notwithstanding the cost and potential disruption

of the proposed revision to the ozone NAAQS, EIA would support the proposal if

it would provide meaningful health or environmental benefits. But EPA’s own scientific advisors have concluded that the proposed ozone standards would not necessarily provide such benefits. Under these circumstances—where the proposal

would clearly impose significant costs on governments, businesses, and consumers

but not necessarily provide meaningful benefits—the appropriate ‘‘policy judgment’’

seems clear. EPA should not revise the NAAQS for ozone as outlined in the proposed rule. Rather, ETA believes that the Agency should either retain the current

ozone NAAQS or establish an equivalent standard with a longer averaging period.

As noted in the preamble to the proposed rule, CASAC has indicated that a longer—

averaging period would be more appropriate for addressing the adverse health effects related to ozone exposures. In addition, a longer averaging period may provide

a more stable standard that is less likely to force an area into nonattainment based

on unusual weather patterns. If EPA decides to switch to a longer-averaging period,

it should select a level (and an implementation approach) that will not undermine

the programs that government agencies and businesses have developed to meet the

current ozone standards.

B. EPA Should; Not Establish New NAAQS for PM2.5 Until Further Research Can

Address the Major Uncertainties About the,Health Effects of PM2.5

CASAC also conducted a comprehensive review of the scientific data regarding the

health effects of fine particles—i.e., airborne particulate matter measuring 2.5 microns or less (PM2.5). Based on this review, it concluded that there is much uncertainty about the underlying science, and that a number of important questions

should be addressed before EPA proceeds to set a NAAQS for PM2.5. In a letter

dated June 13, 1996, CASAC advised the Agency that, because of the judicial deadline for making a decision about whether to revise the current PM NAAQS, CASAC

did not have ‘‘adequate time to analyze, integrate, interpret, and debate the available data on this very complex issue.’’

EPA itself has recognized that there are substantial uncertainties about the potential health effects of PM2.5. As part of the Administration’s recent budget proposal, the Agency has requested $26.4 million in order to conduct the research that

is necessary ‘‘[to reduce the great uncertaii#y about PM’S health effects.’’ Budget of

the United States Government, Fiscal Year 1998, p. 81 (emphasis added). According

to the budget proposal, this amount of funding is needed to support research in

three areas: ‘‘(1) evaluating the relationship between health effects and PM exposures; (2) determining the amount and size of particles inhaled and retained in the

lungs; and (3) investigating biological mechanisms by which PM concentrations in

outdoor air may induce health effects and, in doing so, evaluating potential links

between PM exposures and health effects.’’ Id.

In spite of these uncertainties, it might be appropriate to establish a NAAQS for

fine particles if it would be relatively inexpensive to achieve such a standard. The

Regulatory Impact Analysis (MA) prepared by EPA, however, estimates that it will

cost $6.3 billion per year to achieve partial attainment with the proposed standard.

EPA PM Regulatory Impact Analysis (MA) at 7–8. As with the proposed ozone

standard, the Agency has not attempted to estimate the cost of full attainment because ‘‘it is not possible to estimate the costs of the as yet unknown measures that

78

will be required to allow residual nonattainment areas to come into compliance.’’ See

Letter of Sally Katzen, Administrator of the Office of Information and Regulatory

Affairs, to Chairman Thomas Bliley, Jr. (February 14, 1997). Thus, there is also significant uncertainty about the full cost of the proposal.

The Agency has not yet been able to collect basic data regarding PMG52.5 emissions, including what sources are responsible for PM2.5, what chemical components

form PM2.5 in the atmosphere, and what steps will likely be needed to address PM2.5

emissions. In its proposed Interim Implementation Policy, for example, EPA notes

it cannot develop an implementation policy for fine particulates ‘‘until it is able to

technically predict and measure emissions of fine particles generated by individual

sources and better understand and estimate the formation and dispersion of ambient fine particle concentrations in the atmosphere.’’ 61 Fed. Reg. at 65762.

EIA recognizes that absolute certainty should not be a prerequisite for the imposition of environmental standards, and that EPA must often move forward to protect

public health in the face of unanswered questions. In this case, however, there are

enormously important questions that must still be addressed, and the cost of moving

forward is very high. In light of the many questions surrounding fine particulates,

including the uncertainty about the health effects data and the types of sources that

are responsible for airborne concentrations of PM2.5, ETA believes that the Agency

should not establish NAAQS for PM2.5 at this time. EPA is under no obligation to

establish a new NAAQS for PM2.5. It can comply with the existing judicial deadline

and the underlying requirements of the Clean Air Act by reaffirming the current

PM10 standards and taking the time needed to address the significant scientific uncertainties about the potential health effects of fine particles. Rather than setting

a new standard for PM2.5, EPA should follow the advice given by CASAC and ‘‘implement a targeted research program to address these unanswered questions and

uncertainties.’’ See CASAC letter of June 13, 1996.

II. IMPLEMENTATION ISSUES

A. The Electronics Industry Has Unique Flexibility Needs that Must Be Addressed

in Any Implementation Policy

The technologically dynamic nature pf the electronics industry distinguishes it

from other traditional manufacturing sectors. To avoid obsolescence, a typical electronics manufacturing facility will undergo numerous chemical and equipment alterations in the span of a single year and will install several completely new generations of technology during its operational lifetime.

In the electronics industry, the ability to bring a new product to market rapidly

is of paramount importance to the product’s ultimate success. Even a 1- or 2-week

delay in a new product announcement or the shipping of a new product can have

serious effects on the product’s ultimate success. Each year, a typical electronics

manufacturing company may announce as many as several hundred new hardware

products in the United States alone. Obviously, these products cannot simply appear

on the customer’s floors, but require new and modified manufacturing processes,

often with a completely new generation of technology.

As a result, electronics manufacturing processes are in continuous evolution.

Roughly every 18 to 24 months, new generations of products are introduced through

implementation of new processes, and of these processes, approximately one-third

involve major departures from the prior processes in terms of chemistries, equipment and/or chemical use. Process alterations are essential to meet the competitive

demand for upgrades, advancements and innovations. To provide a concrete example

of the types of business challenges faced by both the electronics and semiconductor

manufacturers in our industry, EIA has undertaken an informal survey of its members.

One EIA member, Intel Corporation, has analyzed its semiconductor operations.

This analysis demonstrates that beginning at startup, and for each subsequent 5-

year period that follows, a typical facility using the latest process technology would:

• Introduce at least two new generations of technology, which may occur either

through constant alterations phased in over time or by completely ‘‘gutting’’ the interior of the facility other than the piping, ducts and other components which link

the manufacturing operation with the general facility services area.

• Make 30 to 45 process chemical alterations per year as existing processes are

refined and new processes are developed.

• Install 5 to 15 new equipment types and/or new processes to meet technical

needs that were identified at facility startup, but for which at the time of startup,

no equipment or process satisfying the requisite specifications have actually been

developed, constructed and validated.

79

• Undertake hundreds of minor process ‘‘tweakings,’’ such as an amendment in

flowrate or temperature adjustments.

EIA has also gathered information from other members regarding the types and

frequency of routine process upgrades, advancements and innovations made each

year in typical electronics operations. The results indicate that, in general, an electronics manufacturer will undertake 100–3 00 alterations per year depending on the

size of the facility. Approximately one-quarter of these alterations involve the installation of equipment, primarily in replacement or ‘‘like-kind’’ replacement situations.

To remain competitively viable, a U.S. manufacturer cannot afford any significant

regulatory delays prior to implementing process and equipment alterations. Thus,

any implementation policy for new or revised NAAQS must take into account the

following:

• The global competitive dynamics of our industry create the economic reality

that process alterations must be implemented swiftly to retain existing markets

and/or capture new markets. Thus, to remain competitively viable, a U.S. manufacturer cannot afford any significant regulatory delays prior to implementing process

alterations.

• Regulatory regimes that require permitting or other environmental authorities

to comprehend and catalogue each and every process detail create inordinate administrative burdens for both regulators and industry due to the ever-evolving nature

of electronics and semiconductor processes. Moreover, in many cases, such regimes

are simply incompatible with our industry’s competitive need to implement process

changes in a swift, decisive manner.

In sum, regulatory flexibility—as defined by the ability to undertake these routine

changes without significant delay—is critical to our industry’s global competitiveness.

B. If EPA Revises the Ozone NAAQS or Sets New NAAQS for PM2.5, the Interim Implementation Policy Should Not Reduce Operational Flexibility by Automatically

Lowering Maj or Source Thresholds

EPA has proposed an ‘‘interim implementation policy’’ that would become effective

when a new or revised NAAQS is finalized and would remain in effect in an individual state until the state has developed (and EPA has approved) a state implementation plan (SIP) designed to meet the new NAAQS. For the most part, the proposed policy would simply adopt a ‘‘no backsliding’’ policy that would keep all current programs and requirements in place. In at least one key respect, however, the

proposed policy would go beyond this no backsliding principle. Under the proposal,

all ‘‘marginal’’ ozone nonattainment areas would automatically be reclassified as

‘‘moderate’’ areas, and all moderate areas would become ‘‘serious’’ areas. Among

other things, this would lower the New Source Review (NSR) major source threshold

from 100 tons per year (tpy) to 50 tpy in moderate areas that are reclassified as

serious during the interim period.

This change is likely to have a significant impact on many facilities currently located in moderate nonattainment areas. Many companies, including members of

ETA, have diligently pursued a minor source strategy since 1990, using careful strategic planning and, in some cases, expensive pollution prevention and other control

measures, to ensure that their plants are not categorized as major sources. This

strategy has preserved operational flexibility for the facilities and, at the same time,

has yielded important environmental benefits by capping potential emissions at

these plants. By automatically lowering the major source thresholds, the proposed

interim policy has the potential to undermine this minor source strategy.

Significantly, there is no evidence to suggest that lowering major source thresholds will have an appreciable impact on reducing emissions. In many areas, emissions of ozone precursors come primarily from mobile and area sources. For example, 1996 emissions data compiled by the Arizona Department of Environmental

Quality shows that in Maricopa County, Arizona, stationary sources are responsible

for only about 6 percent of VOC emissions and 5 percent of NOx emissions. The rest

of the VOC and NOx emissions in the county come from area and mobile sources.

In other areas, emissions of concern come primarily from older, stable facilities that

do not intent to make physical or operational changes and therefore will not be subject to NSR. In these areas, extending the NSR program to smaller stationary

sources has little or no potential to reduce emissions of ozone precursors. If EPA

proceeds to establish an interim implementation policy, the policy should not include an automatic ‘‘bump up’’ that would lower major source thresholds in certain

areas. Rather, it should simply adhere to the no backsliding principle.

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C. If EPA Revises the Ozone NAAQS or Sets New NAAQS for PM2.5, it Should also

Establish a Long-term Interim Implementation Policy that Allows for Innovation

and Flexibility

EPA has taken the position that subparts 2 and 4 of part D of title I of the Clean

Air Act would not apply to the revised ozone and PM2.5 NAAQS, because those subparts were ‘‘explicitly tied’’ to the ozone and PM NAAQS that were in place when

the 1990 Clean Air Act Amendments were adopted. See 61 Fed. Reg. at 65753. As

a result, the Agency has announced that it will develop a new policy, including a

new classification scheme, to implement the proposed NAAQS. If EPA takes this opportunity to move beyond the strictures of subparts 2 and 4, it should seek to develop an innovative and flexible implementation policy that will achieve cost-effective emissions reductions without hampering operational flexibility. Any such policy

should ensure that the electronics industry and other similar industries are able to

carry out necessary process changes without incurring regulatory delays. The following implementation issues are of particular importance to the electronics industry:

Major Source Permitting: EPA should not adopt an implementation policy that relies on increasingly stringent major source thresholds for purposes of New Source

Review (NSR) or similar permitting programs. As noted above, such an approach

has little or no potential to achieve significant emissions reductions, but could significantly limit the operational flexibility that dynamic industries need to compete

effectively in the global marketplace. Many ETA members have diligently pursued

a minor source strategy since 1990, using careful strategic planning and, in some

cases, expensive control measures, to ensure that their plants are not categorized

as major sources. As a result, most electronics facilities are not subject to major

source NSR permitting obligations, and are able to make physical or operational

changes without going through a lengthy regulatory process. An implementation

policy that adopts more stringent major source thresholds and thereby brings smaller sources into the NSR program could wreak havoc on the electronics industry by

subjecting routine changes to NSR review.

Minor NSR: Electronics sources are typically regulated under SIP permitting programs for minor sources (generally known as minor NSR) and have relied on these

programs to obtain controls and limitations on their potential to emit, thereby

avoiding major source status. Historically, these minor NSR programs have also

been important tools for states to regulate sources with respect to attainment requirements. Many states have fashioned their minor NSR programs in a manner

that recognizes the electronic industry’s unique flexibility needs and the lack of environmental significance of the industry’s routine process upgrades, advancements

and innovations by allowing the use of blanket registrations, targeted exemptions,

and other similar measures. Any change in these programs could disrupt the minor

source strategy employed by electronics manufacturers and could create regulatory

delays that would seriously hamper global competitiveness.

It is also important that any implementation policy be designed to preserve the

work that has been done to develop innovative cap-type permits. These permits encourage pollution prevention and other creative approaches for controlling emissions, while at the same time providing the flexibility that electronics companies

need to compete in the global marketplace.

Emissions Controls: The nature of the electronics manufacturing process results

in high air flow volume with low concentrations of pollutants. Under these circumstances, states have developed regulatory requirements for electronics facilities

that rely on pollution prevention, work practices, and other environmental management techniques to control emissions. Many states have fashioned their ‘‘reasonably

available control technology’’ (RACT) rules for electronics sources in a flexible manner that does not mandate specific end-of-pipe control technologies. Moreover, the

constant evolution of the manufacturing process encourages an electronics manufacturers to ‘‘build in’’ emission controls as part of the planning process. Thus, any

change in the RACT rules necessitated by a revision to the NAAQS could have serious flexibility implications for electronics manufacturers.

Monitoring And Other Compliance Demonstration Approaches: As part of the SIP

revision process that will be necessary to implement any new or revised NAAQS,

states will be required to develop a ‘‘comprehensive, accurate, current inventory of

actual emissions from all sources.’’ Electronics sources present unique monitoring

challenges due to the high volumes of air and low levels of pollutants that typify

the manufacturing process. To date, states have been flexible in working with the

electronics industry to develop emissions data based on real-world factors. Implementation of any NAAQS revision must be undertaken with this same flexible approach to monitoring and compliance demonstration.

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Equitable Allocation of Compliance Burden: In addition to the specific issues

noted above, EIA also urges the Agency to adopt an implementation policy that

spreads the compliance burden fairly among the industrial, public, and governmental sectors. The policy should not focus primarily on private industrial sources

for reductions of ozone and PM precursors, but should seek cost-effective emission

reductions from the general public (including mobile sources and consumer products) and from governmental sources as well. As noted above, mobile and area

sources are responsible for the vast majority of emissions in many parts of the country. Any implementation policy should reflect this fact and shOuld not require states

and localities to focus undue attention on other sources that contribute only marginally to nonattairiment problems.

CONCLUSION

ETA appreciates the opportunity to comment on EPA’s proposals to revise the

NAAQS for ozone, to establish a new NAAQS for PM2.5, and to develop implementation policies designed to attain the proposed standards. EIA believes that EPA

should either retain the current ozone NAAQS or establish an equivalent standard

based on a longer averaging period. If EPA decides to switch to a longer averaging

period, it should select a standard that will not undermine the programs that regulatory agencies and businesses have developed to meet the current standard. EIA

also believes that EPA should not establish NAAQS for PM2.5 at this time. Rather,

it should retain the current PM standards until such time as further research can

address the significant uncertainties about the health effects of fine particles. If the

Agency adopts either of the proposals, ETA urges the Agency to develop interim and

long-term implementation policies that address the unique flexibility needs of the

electronics industry.

STATEMENT OF STEPHEN L. JOHNSON, NOMINEE FOR ASSISTANT ADMINISTRATOR, OF- FICE OF PREVENTION, PESTICIDES, AND TOXIC SUBSTANCES, ENVIRONMENTAL PRO- TECTION AGENCY

Introduction

Good Morning, Mr. Chairman, Senator Reid, and members of the committee. I am

honored to have the opportunity to appear before this committee. Today I’m seeking

your confirmation to serve as Assistant Administrator for the Office of Prevention,

Pesticides, and Toxic Substances at EPA. As a career civil servant for the last 20

years, it is a privilege and a distinct honor to have the support of President Bush

and Governor Whitman to serve EPA as part of this Administration.

Given my background at EPA and in the private sector, I know the importance

of developing practical and reasonable solutions to our environmental and public

health challenges. As you know, pesticide and chemical regulation can be a contentious subject, with many polarizing issues. If confirmed as the Assistant Administrator, I will foster an atmosphere with our stakeholders to ensure the Agency is

accessible and responsive. Given my scientific education and experience working

within the various scientific disciplines at EPA, I will aggressively promote decisions

that are based in sound science. I will also work to foster consensus-based and common-sense approaches as we advance public health and environmental protection.

I look forward to working with Governor Whitman and the EPA team to advance

public health and environmental protection.

Role of OPPTS

The Office of Prevention, Pesticides, and Toxic Substances (OPPTS) has a variety

of programs that are at the forefront of protecting public health and the environment, including regulating pesticides and industrial chemicals, as well as promoting

pollution prevention and innovative partnerships with our stakeholders. We have

enormous challenges, but we also have a solid record of accomplishments.

During my tenure at EPA, pesticide and industrial chemical regulation has

changed dramatically. In the pesticides area, we are implementing the Food Quality

Protection Act (FQPA), which is strengthening food safety for all consumers, especially for infants and children, from pesticides residues in food. We are almost 5

years into FQPA implementation to ensure pesticides meet the tougher standards,

while at the same time ensuring that American agriculture has the tools to continue

to provide a healthy and abundant food supply.

Key Priorities

Despite the progress in recent years, important work remains. Our regulatory

oversight of pesticides, industrial chemicals, biotechnology, food safety, and pollution

prevention will continue to require sustained and dedicated attention. Making sure

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our decisions are based on sound science will require continued consultation with

the scientific community, peer review and highly trained professionals at EPA.

Meeting our commitments under Chemical Right-to-Know, FQPA, protecting children from lead-based paint risks, bringing our stakeholders together to develop

workable solutions, and promoting diversity in OPPTS, along with a host of many

other issues, will require continued attention.

My priorities include building on the solid progress under the FQPA to reassess

the older pesticides while ensuring an abundant food supply. We expect to meet the

statutory commitments, while using sound science and extensive stakeholder involvement. OPPTS will further streamline the process to license (register) new pesticides, while seeking new ways to better involve our stakeholders in registration

decisions. My office has the further challenge of addressing the cutting edge issues

in biotechnology. I believe this technology holds tremendous promise. However, we

must continue to advance our science and strengthen the regulatory system to ensure biotechnology products meet rigorous health and environmental standards. Our

goal is to assure the public that there is a credible regulatory system in place to

for food safety and environmental protection.

On the subject of industrial chemicals, voluntary partnerships on the High Production Volume chemical testing program and the Voluntary Children’s Chemical

Evaluation Program will continue to be key priorities. Reducing priority PBT pollutants, developing innovative partnerships, managing the lead-based paint program,

and the core TSCA programs, will continue to be important areas of focus. I remain

committed to our many initiatives with States and industry to advance pollution

prevention approaches. Also, given today’s global environment, OPPTS will continue

the important scientific and regulatory work with the international community. I

am firmly convinced that these priorities demonstrate that a healthy environment

and a robust economy can go hand in hand.

Key Principles

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 Assistant Administrator. They include commitments to: 1) Advance the best science to support our regulatory decisions; 2) Open communication and regular consultation with our stakeholders; 3) Build strong and trusting relationships with all our customers, including

Congress, the States, the tribes, the industry, the scientific community, other government agencies, farmers, the international community, and the consumer advocate community; 4) Work to quickly address the concerns of our stakeholders; 5) Establish partnerships with all stakeholders to develop common-sense and innovative

solutions; 6) Strengthen partnerships with other Federal agencies, particularly with

USDA, FDA; and HUD, NIOSH, and OSHA; and 7) Promote professionalism, dedication and diversity within the OPPTS staff.

To advance these principles, I have already begun the process of meeting with

many stakeholders and employees in OPPTS to hear a variety of opinions on the

challenges we face and the future direction we should forge. I believe these steps

will strengthen partnerships to ensure we meet the changing demands in safeguarding public health and the environment.

Conclusion

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. Growing up, I always admired my father’s government service. During college in the early 1970’s, I began my public service as a GS–4 intern, and I

am proud to have worked at EPA 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 public service and environmental protection. For me, serving in the

government, with the goal to help 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 having

a foundation in sound science and commonsense, coupled with inclusive stakeholder

participation, will result in quality decisions.

As Assistant Administrator, I hope to achieve national goals with 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 look forward to working with you on a bipartisan basis to advance the mission

of protecting public health and the environment on behalf of the American people.

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Thank you for the opportunity to appear before you today. I’ll be glad to answer any

questions you may have.

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RESPONSES OF STEPHEN L. JOHNSON TO ADDITIONAL QUESTIONS FROM SENATORS

SMITH AND REID

Question 1. We would like to ensure that all relevant stakeholders are included

in the initial planning stages of chemical testing programs by Federal agencies, including the animal protection community and pediatric health professionals. In your

new role, what will you do to ensure that the EPA consults with pediatric health

professionals and the animal protection community prior to the development of all

chemical testing programs and invites them to participate in their development?

Response. I agree that it is vitally important to include a range of stakeholders

including the animal protection community and pediatric health professionals—in

the planning stages of chemical testing programs, as well as the development of our

regulations and other initiatives that we have underway. I can assure you that my

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Office will make every effort to conduct our business in an open, transparent atmosphere that allows all of our stakeholders to be a part of the process.

For example, the Agency is establishing a Federal Advisory Committee (FACA)

to help direct our efforts on the Endocrine Disruptor program. We recently conducted a pre-FACA meeting with a wide range of stakeholders to ensure that they

are a part of this process. Similarly, we held a series of open stakeholder meetings

to gather input into the development of our new Voluntary Childrens’ Chemical

Evaluation Program. These examples are models of how we will interact with our

stakeholders now and in the future.

Question 2. Non-animal test methods can be more economical, more reliable, more

relevant than animal tests, and are also more humane. In your new role, what will

you do to promote the research, development, validation, and acceptance of non-animal test methods?

Response. I am personally committed to ensuring that non-animal tests are developed and validated as quickly as possible. My Office, along with EPA’s Office of Research and Development, are active participants in the National Institutes of

Health’s Interagency Coordinating Committee on Alternative Methodologies

(ICCVAM), the Federal entity responsible for the development and validation of

non-animal test methods. We are committed to the development and integration of

alternative methods that have been scientifically validated and peer reviewed via

ICCVAM and other recognized authorities. Validation consists of ensuring that a

new method is both reliable and relevant for its proposed use. Such methodologies

provide both high quality data that are responsive to the Agency’s needs for protecting human health and the environment, and address animal welfare concerns.

We are also committed to ensuring that when tests that include animals must be

used, that these tests are conducted in a way to reduce the number of animals that

must be used, reduce the pain and suffering of the animals, and, whenever possible,

replace animals in testing with validated non-animal test systems. I will continue

to follow the principles of notification as implemented in the High Production Volume Challenge program. . EPA reiterated these principles in an October 2000 letter

to program participants which also indicated the commitment by EPA’s Office of Research and Development and the NIH to pursue research that would lead to further

protocols for non-animal tests.

You may also be aware that there have been a number of recent developments

on this subject, including the October 2000 EPA and NIH sponsored ‘‘International

Workshop on In Vitro Methods for Assessing Acute Systemic Toxicity.’’ This workshop developed a number of recommendations that range from in vitro protocols for

possible use in the near-term, to short-term research priorities, to long-term research all aimed at reducing the number of animals used to assess acute systemic

toxicity. Recommendations coming out of this workshop include an in vitro protocol

that should allow fewer animals to be used in in vivo acute toxicity tests. These recommendations will be put forward by ICCVAM for all Agencies, including EPA, to

consider in late May or early June.

We are encouraged by the progress that is being made in this area and will continue to work with animal protection groups as we move forward in this very important endeavor. In fact, I have designated Sherry Sterling from the OPPTS’ Office

of Science Coordination and Policy to serve as liaison with animal protection groups

to ensure that their issues and concerns are considered.

RESPONSES OF STEPHEN L. JOHNSON TO ADDITIONAL QUESTIONS FROM SENATOR

SMITH

In 1996 Congress passed the Food Quality Protection Act (FQPA), which modified

the Federal Food, Drug, and Cosmetic Act (FFDCA) and the Federal Insecticide,

Fungicide, and Rodenticide Act (FIFRA) with respect to regulation of pesticides.

The FQPA amendments of 1996 introduced several major new concepts to pesticide regulation, namely, Aggregate Exposure and Cumulative Risk and also set definitive timetables to re-evaluate all existing product registrations with respect to

these concepts.

Question 1. Could you provide an overview of the policies the Agency developed

in implementing the decisionmaking process using aggregate exposure and cumulative risk and the process of developing that policy?

Response. As Assistant Administrator, I am committed to FQPA implementation

that is led by sound science supporting decisions; open, fair, and predictable regulatory processes; workable transitions for pesticide users to new pest management

strategies; and a process that engages all stakeholders, including the U.S. Department of Agriculture, farmers, and other pesticide users.

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The development and implementation of aggregate and cumulative risk assessments have closely followed these principles. EPA has used the Scientific Advisory

Panel (SAP) to ensure that these policies are guided by sound science. The SAP, an

independent scientific peer committee, has met numerous times to invite peer review on both the aggregate and cumulative risk assessment methodologies. I will

continue to use the SAP to conduct rigorous scientific peer review on these policies.

EPA has also formed and received valuable counsel from several advisory committees, including the Food Safety Advisory Committee, the Tolerance Reassessment

Advisory Committee (TRAC), and the Committee to Advise on Reassessment and

Transition (CARAT). The advisory committees have brought together and continue

to bring together a wide range of stakeholders interested in pesticide policy and

their discussions and suggestions have played an important role in shaping both our

public participation process and EPA’s approach to developing science policies to address the scientific analysis as required by FQPA. As Governor Whitman expressed

in March 19, 2001, directive to OPPTS, it is the goal for the Agency to conduct reregistration and reassessment activities in an open and transparent manner, with

ample opportunities for public participation, and to make all regulatory decisions

based upon principles of sound science.

Question 2. What is the status of the re-evaluation of the existing product registrations?

Response. EPA’s pesticide reregistration and tolerance reassessment are critical

parts of EPA’s mission to safeguard public health and the environment. Since the

enactment of FQPA in 1996, EPA has reassessed more than one-third of the 9,721

existing tolerances to ensure they meet the standards in FQPA. In addition, EPA

is now more than 70 percent complete with re-registering older pesticides. EPA remains on schedule to meet the next statutory deadline to reassess 66 percent of existing tolerances by August 3, 2002.

Question 3. Do you expect to review that policy or make any changes to the policy?

Response. I intend to use a variety of means to engage the public, USDA, Congress, and the scientific community in discussing the decisionmaking process in development of important policies such as use of aggregate exposure and cumulative

risk. These will include working with CARAT, either in full sessions or in

workgroups, the Pesticide Programs Dialogue Committee, the Scientific Advisory

Panel, and other affected stakeholders. Co-chaired by EPA’s Deputy Administrator

and USDA’s Deputy Secretary, CARAT is made up of stakeholders representing a

broad range of interests and backgrounds from across the country, and provides a

forum for these parties to advise EPA and USDA regarding strategic approaches for

pest management planning and tolerance reassessment for pesticides as required by

FQPA.

In addition, I will continue to bring science policy issues to the Science Advisory

Panel, an independent scientific peer review committee, to ensure that rigorous, objective science continues to guide EPA’s decisionmaking. Further, EPA will continue

to provide transparent and predictable public review periods on all of EPA’s pesticide regulatory decisionmaking, through the Federal Register, EPA’s website, and

all other available public fora.

Question 4. How will you work to involve the USDA more closely and integrally

in the EPA’s regulatory activities that affect crop protection?

Response. While EPA has primary responsibility for implementing the Food Quality Protection Act, the U.S. Department of Agriculture (USDA) is a key player, especially in interacting with the agriculture community. USDA provides critical support

to obtain data that improve EPA’s risk assessments, assist pesticide users adjust

to changes regarding pesticide uses, and share information on alternative pest management strategies. In addition, USDA generates important food consumption and

pesticide residue data. We also coordinate extensively to improve the scientific foundation for pesticide risk assessment.

As Assistant Administrator, I will work extensively with USDA on a variety of

pesticide issues, including during proceedings of the committee to Advise on Reassessment and Transition (CARAT), which is helping to enhance interaction with

stakeholders on key FQPA issues. I want to emphasize that EPA will continue its

efforts with USDA to strengthen the communication with minor-use growers to

identify vulnerable crop-pest combinations and to coordinate efforts to involve stakeholders in risk management decisions. I am especially looking forward to working

with EPA’s new Counselor on Agriculture Policy, Jean-Mari Peltier. I am confident

that she will strengthen our working relationship with USDA.

Question 5. Governor Whitman has announced creation of the position of Counselor to the Administrator on Agriculture Policy. What role do you see the Counselor

on Agriculture Policy playing with your office?

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Response. U.S. agriculture is directly affected by a wide range of EPA issues, from

the use of pesticides to handling of animal waste. The Counselor to the Administrator on Agriculture Policy will act as an ombudsman for the agriculture community and to strengthen interaction with the agricultural community. This agriculture

advisor, Ms. Jean-Mari Peltier, will work closely with my office and throughout EPA

to assure that agricultural concerns are considered during EPA deliberations; improve transparency of EPA activities with agriculture and other affected parties; foster coordination between EPA and USDA; and, maintain an awareness of congressional activities related to agriculture and environmental protection.

RESPONSES OF STEPHEN L. JOHNSON TO ADDITIONAL QUESTIONS FROM SENATOR

REID

Question 1. As Assistant Administrator for the office responsible for toxic substances, would you place a high priority on taking a hard look at whether and how

improvements can be made in the current approach to protecting public health from

exposure to toxic chemicals?

Response. I take seriously the responsibility to ensure that the citizens of this

country are protected from the potential hazards associated with chemicals. Be assured that the Agency stands ready to assist this committee if it is the will of Congress to consider improvements to existing laws.

Question 2. As you know, I wrote to Administrator Whitman on March 15 urging

her to sign a consent decree to put EPA on a schedule to comply with critical pesticide protections for children. I was very pleased when the Administrator signed

the decree. Time and time again since then, President Bush has reminded us of that

action, highlighting the pesticide settlement as great environmental achievement.

That achievement is only as good as the dollars the President is willing to put

behind it. This year, maintenance fees authorized under the Federal Insecticides,

Fungicide, and Rodenticide Act (FIFRA) which support reregistration of pesticides

will expire. The administration has not requested an extension of that authorization. At the same time, your budget also shows a cut of 50 percent from last year’s

level for the pesticide tolerance reassessment program.

Together the lack of a reauthorization of these FIFRA fees and the cut in appropriated dollars for the pesticide tolerance program would, by your own estimation,

result in the loss of 200 employees who perform this important work—25 percent

of the pesticide program office. I understand that the Administration doesn’t view

this as a cut because it plans to finalize a proposed Clinton Administration rule to

raise the fees charged pesticide companies to do this work.

In view of the Administration’s strong commitment to advancing critical pesticide

protections for children, and its reliance upon the tolerance fee rule to effect that

goal:

Question 2a. Will you oppose legislative riders seeking to limit or prohibit EPA

from finalizing or implementing the tolerance fee rule?

Response. EPA will work to secure to passage of the President’s budget that calls

for implementation of the tolerance fee rule.

Question 2b. Will you recommend that the President veto legislation that contains

a rider to block the imposition of the tolerance rule? Please provide a yes or no answer to this question.

Response. It is not possible to provide a yes or no answer at this time, because

I cannot speculate on the Administration’s future position on appropriations legislation. It is critical, however, that a stable funding mechanism be identified.

Question 2c. In the event that the rule is blocked either by congressional or judicial action, will you commit to fully implementing the consent decree signed on

March 19, 2001 in NRDC v. Whitman?

Response. Yes, EPA is committed to seeing that work go forward. Currently the

Consent Decree is undergoing public comment, and EPA will review these comments.

Question 2d. In the event that the rule is blocked by either congressional or judicial action, will you commit to fully implementing the programs contained in your

budget request including, but not limited to: reassessing 9,721 pesticide standards

to protect children; priority reassessment for high risk pesticides on foods commonly

eaten by children; health effects research to measure the effects of pesticides on children; exposure research to measure pathways of pesticide exposure to children; and

research to assess the cumulative risks pesticides pose to children?

Response. EPA does not intend to implement any reductions-in-force. The Agency

is committed to implementing the tolerance reassessment program on schedule.

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If the tolerance fee as mandated by FQPA is not, in the opinion of Congress, the

best method of funding these critical pesticide tolerance reassessment programs, we

welcome the opportunity to work with the Congress to explore other approaches to

providing full, stable funding for the program.

Question 2e. In the event that the rule is blocked by either congressional or judicial action, will you seek additional appropriated dollars or fees to support the

above-mentioned programs rather than institute cuts to other EPA programs?

Response. EPA does not plan to implement any reductions-in-force, and it is important that a stable funding mechanism be identified.

Question 3. Would you support legislation to reauthorize the maintenance fees

FIFRA?

Response. EPA fully supports the President’s budget, and such legislation would

be inconsistent with the current statutory mandate to collect tolerance fees that is

reflected in the President’s Budget. The important work of the tolerance reassessment program must continue, and the tolerance fee rule provides for full, stable

funding for the life of the program. Any alternatives would need to offer similarly

stable and adequate funds.

Question 4. Soon industry will begin screening tests of high production volume

chemicals, under the voluntary program worked out by EPA, Environmental Defense and the chemical industry. This is long overdue. I think the public would be

shocked to learn how little is known about the potential dangers of chemicals before

they are allowed into commerce. My question is about the need for action beyond

the HPV program. Simply comparing requirements of TSCA with those under the

Food Quality Protection Act raises some seemingly obvious deficiencies in TSCA.

Has EPA prioritized chemicals for testing, so that those that, based on current information, pose the greatest threat to health or high risk of exposure will promptly

be subject to analyses beyond HPV screening? What about chemicals that new biomonitoring data reveals are pervasive in the general population?

Response. As you likely know, the HPV Challenge Program, launched in October

1998, will provide EPA and the public with Internet access to screening level health

and environmental effects data on over 2,100 widely used chemicals. The data made

publicly available through this collaborative effort will allow a diverse set of stakeholders, including Federal, State and local governments and other interested parties

to set priorities for the collection of additional information. This program will help

the Agency prioritize higher order testing and exposure analyses to ensure that risk

assessment and management activities focus on chemicals which may present the

greatest risks. In addition, EPA has established a Master Testing List (MTL) which

serves as an agenda to prioritize industrial chemical testing needs of EPA and other

Federal agencies. EPA also participates in the Organization for Economic Cooperation and Development’s (OECDs) HPV Screening Information Data Set (SIDS) Program, which screens HPV chemicals to evaluate the need for followup action from

a global perspective. The OECD process provides a platform harmonize chemical

testing protocol and laboratory testing, as well as opportunities for international collaboration to share costs.

In December, 2000, EPA launched a pilot of the Voluntary Children’s Chemical

Evaluation Program (VCCEP)that specifically used biomonitoring data as a key parameter to identify and focus on chemicals to which children would have the highest

likelihood of exposure. EPA selected chemicals for the first tier pilot which were

found to be present according to available biomonitoring data to be present in the

human body (adipose tissue/blood/breast milk and breath) and found by existing environmental data to be present in a person’s environment( in food, drinking water,

breast milk, air). The VCCEP was developed through an extensive stakeholder involvement process. The program is designed to ensure that health effects and exposure data are made available in a phased (tiered) process. Development of such data

will allow EPA and others to evaluate potential health risks to children associated

with certain chemical exposures so that appropriate mitigation measures may be

taken. EPA will use available biomonitoring data in setting chemical risk assessment priorities.

Question 5. Shouldn’t the Congress and EPA be taking a hard look at issues

under TSCA beyond HPV testing, such as (1) whether there’s a need to more effectively set priorities to ensure prompt focus on additional testing of chemicals that

pose the greatest risk of exposure or adverse health effects, and (2) whether the current standard and mechanisms under TSCA for testing and restricting chemicals

promote timely and effective action necessary to ensure basic protections to public

health?

Response. As you know, TSCA was passed 25 years ago this year and has not

been reauthorized since that time. However, it does provide the Agency with the auVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00107 Fmt 6633 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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thority necessary to assess new chemicals coming into the marketplace, gather information on chemicals currently produced and circulated in commerce, identify and

require further testing on chemicals that may pose risks, and control production and

commercial distribution of those chemicals which may pose an unreasonable risk to

health or the environment. In addition, TSCA requires chemical companies to provide the Agency with all available scientific information regarding health and safety

concerns on the chemicals that they produce.

Since the 1970’s, EPA has implemented TSCA to ensure that new chemicals are

screened prior to their introduction into the marketplace. Currently, EPA is reviewing about 1,200 new chemical submissions a year. Last year, 700 were permitted

to be sold in the U.S. To address the most widely used chemicals in this country,

EPA launched the High Production Volume (HPV) Challenge program in 1998,

which asked the U.S. chemical industry to voluntarily provide health and safety

data to the public on the almost 2,800 HPV chemicals. In addition, the Agency established a voluntary initiative to gather critical data on those chemicals that may

pose a risk to children.

You may also be aware that the Agency has significant efforts underway to reduce

chemical emissions, to prevent pollution from the outset, to design and provide safer

chemicals from the start, and to work with the chemical industry to find safer chemical substitutes.

The Agency appreciates the interest that this committee has in our ability to ensure that chemicals are used safely in this country, and we stand ready to work

with you in addressing some of the challenges in implementing TSCA.

RESPONSES OF STEPHEN L. JOHNSON TO ADDITIONAL QUESTIONS FROM SENATOR

BAUCUS

Mr. Johnson, as you know, price discrepancies exist between the United States

and Canada when it comes to farm pesticides. The price charged to US farmers is

sometimes almost twice as much as what the Canadian farmer pays. Generally, the

Canadian and US pesticides are almost identical and are manufactured by the same

company, or related companies. Recent surveys have placed prices in the US from

117 percent to 193 percent higher than those in Canada for virtually the same products.

Last year, the Environmental Protection Agency was placed in the position of

being an accessory to this scheme because of the laws governing the importation of

farm pesticides. Although the EPA knew there was not an environmental or health

risk, the Agency had to stop financially strapped farmers from buying a less expensive, but identical, product from Canada. Montana farmers have been losing between 10 to 40 million dollars per.

Question 1. First, what does pesticide harmonization mean to you?

Response. Pesticide harmonization means working with our international trading

partners to promote consistency in the various regulatory and scientific requirements. These efforts help improve trade, regulatory efforts, and avoid unnecessary

duplication of efforts. Harmonization examines the methods and practices used to

regulate pesticides in various countries, while working toward converging the various approaches as appropriate. The purposes are to minimize potential disruptions

to trade, develop consistent regulatory and scientific requirements, support the principles of sustainable pest management, and maintain high levels of protection for

public health and the environment.

Specifically, a current example is the Technical Working Group (TWG) on Pesticides under the North American Free Trade Agreement (NAFTA). The TWG has

been successful in minimizing regulatory hurdles/impediments and creating a level

playing field among NAFTA countries. This work has helped jointly register pesticide products in both countries by minimizing regulatory burdens and promoting

consistent regulatory requirements, consequently eliminating potential barriers to

trade. The work under the TWG has resulted in successful collaboration to jointly

register seven new pesticide products between Canada and the U.S.

Question 2. What actions need to be taken to have cross border availability of pesticides and what would the timeline look like?

Response. As you know, EPA’s legal authority over pesticides is to ensure they

can be safely used; its authority does not cover pricing. The Federal Insecticide,

Fungicide, and Rodenticide Act (FIFRA) requires the registration of a pesticide before it can be sold and distributed in the United States.

EPA has worked very closely with Congress, U.S. Department of Agriculture,

State officials, registrants, and growers, to help solve the problems U.S. farmers

may be experiencing as a result of pricing differences. Over the years the Agency

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has explored a variety of administrative actions to help solve this potential problem.

While these administrative action are helpful, they have not resolved this issues,

and EPA will continue to work within our current authorities. One example that

the TWG is working to develop is a NAFTA label. This label could help ensure equal

access to pesticide products in the different countries.

However, to fully and effectively address this problem, I believe that legislation

is needed because there does not appear to be adequate administrative or regulatory

solutions. I will continue to work with Congress, U.S. Department of Agriculture,

State officials, registrants, and growers, in order to resolve this problem, and to assure protection of human health and the environment.

Question 3. Legislation was introduced—legislation that was drafted with the

technical help of the EPA I might add—to prevent the agency from being used in

this manner again. Unfortunately, the legislation was not passed. Thus, the Agency,

and our farmers, are going to be in the same position again this year, and the Agency will be once again be used to fix the prices our farmers pay. Legislation to solve

this problem has been introduced again this year.

Do you support this type of legislation?

Response. I understand there have been various legislative proposals introduced

in the Congress to solve this problem. EPA stands ready to work with Congress on

possible legislative solutions that effectively address this potential problem.

Question 3a. If legislation fails to pass Congress again this year, how would you

solve this problem?

Response. There are no apparent administrative or regulatory remedies. Nonetheless, EPA will continue to work with all stakeholders to use our current expertise

to help address the situation.

RESPONSES OF STEPHEN L. JOHNSON TO ADDITIONAL QUESTIONS FROM SENATOR

WYDEN

In Oregon, my pear producers are facing record low prices—in part due to the importation of pears from Chile. I am concerned about the health quality of fruits and

vegetables imported into the U.S. As you may know, I began my career in public

life as an advocate for the elderly when I helped found the Oregon Gray Panthers,

and I currently serve on the Senate Special Committee on Aging. The reason I bring

this up is because contaminated fruits and vegetables affect those with weak or impaired immune systems, usually Seniors and children, more readily than they affect

you or me.

Question 1. What work can you do with the FDA and APHIS to assure that imported fruits and vegetables are meeting the strict standards you, in the EPA, have

set for pesticide use for our own crops? I believe that it is very important for you

all to be working closely together and I would like your assurance that you will

make a concerted effort to coordinate your office with those others so the American

people can be assured that their food is safe.

Response. I am will continue to support the very important work of the EPA, FDA

and USDA in overseeing the integrity of imported fruits and vegetables and other

treated foods. As you may know, EPA licenses pesticides and establishes a legal residue limit on foods and feed, and provides FDA and USDA with the analytical methods used for monitoring these residue limits on imported fruits and vegetables. I

also believe that regulatory harmonization plays an important role to ensure safe

food and a level playing-field with our trading partners. I expect to encourage our

current collaborative work with FDA and USDA, expanding them where they need

it. I will work with both to see that we communicate clearly, and I will encourage

the important monitoring efforts that need to be done to assure that imported food

is safe.

Question 2. I am concerned that the EPA budget favors the re-registration of pesticides, which is good if you are a large chemical company, but decreases funding

for tolerance reassessment work, the kind of scientific work needed to protect the

seniors I just referred to. This is exactly the sort of bad budgeting that will lead

to a break down in the implementation of the Food Quality Protection Act. I need

your assurance that as Administrator of this important program you will do everything you can to make sure that the science is done so that people are protected

and farmers have fair warning as to the pesticides they will be able to use.

Response. I hope to build on the concrete steps with USDA and the agricultural

community to ensure our decisions are sensitive to the special needs of farmers. I

believe important work remains with USDA to involve people throughout agriculture in the decisionmaking process so there are not any surprises as we impleVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00109 Fmt 6633 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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ment FQPA. When there are risks that must be addressed, EPA will work with

USDA to get the message out so that farmers can plan accordingly to develop a successful transition to safer pest control techniques. The ingenuity and talent in agriculture should continue making strides toward using safer pesticides, fostering Integrated Pest Management (IPM) techniques, and reducing the use of high-risk pesticides. Together, we can develop smarter solutions that protect human health and

the environment, while maintaining the strength of the U.S. agricultural industry

which allows us to enjoy the safest and most abundant food supply in the world.

RESPONSES OF STEPHEN L. JOHNSON TO ADDITIONAL QUESTIONS FROM SENATOR

CLINTON

Question 1. In your testimony, you mentioned a commitment to strengthening

partnerships with USDA and FDA. I am interested in EPA strengthening its partnerships with other agencies as well, including CDC and NIH. I am concerned about

the increasing occurrence of disease clusters around the country, and the potential

links between these clusters and certain environmental factors. If you are confirmed, would you work to help build stronger partnerships among EPA, CDC, and

NIH—and with industry, public health advocates, environmental interests, and

other stakeholders—to help improve our understanding about how certain environmental factors may impact human health?

Response. Yes, as stressed in my testimony, I will place a high priority to

strengthen our partnership with our stakeholders, including our Federal partners

and all our stakeholders. I believe that working together with everyone at the table,

providing input and advice, is critical to help effectively address the public health

and environmental challenges we face. I agree that it is important to improve our

partnerships that will further the understanding of environmental factors and public health. I know that there are a large number of research projects already underway to investigate possible health or environmental problems possibly linked to environmental factors. This work is coordinated by the Agency’s Office of Research and

Development, but regularly help shape priorities and direction. I am committed to

seeing that our partnership with these research agencies are strong and fruitful.

Question 2. I am pleased that EPA is working to ensure that our food supply is

safe, that the pesticides, insecticides and other chemicals we use to grow an abundant food supply are safe, effective, and used appropriately. But I am also concerned

that U.S. farmers not be inappropriately burdened and put at a disadvantage when

it comes to farmers overseas who may not be held to the same, high standards as

U.S. farmers and whose produce and commodities, as a result, may not be of the

same quality and safety. If confirmed, will you work to strengthen partnerships with

the Office of the U.S. Trade Representative, the Commerce Department, and others

that are involved in agricultural trade issues?

Response. As global trade continues to expand, it is critical for EPA to strengthen

its relationship with other Federal agencies, including USTR and Commerce, and

continue its participation in international pesticide fora that promote the harmonization of regulatory requirements and procedures for scientific assessments. For

many years, EPA has supported a substantial program on harmonization of pesticide regulatory systems with our NAFTA trading partners. This involves close collaboration with other U.S. Government agencies, including USTR, USDA, and FDA.

In addition, EPA participates in other international arena that promote regulatory

harmonization as well as the establishment of international limits for pesticides on

food.

I consider international regulatory harmonization to be an important way to enhance international trade. Our ability to promote fair trade through maintaining

health and environmental standards will benefit U.S. farmers, consumers, and will

require effective coordination with all agencies concerned.

STATEMENT OF JAMES L. CONNAUGHTON, NOMINATED TO BE A MEMBER OF THE

COUNCIL ON ENVIRONMENTAL QUALITY

Thank you Mr. Chairman. It is an honor to appear before you and the distinguished members of the committee. I am both grateful and honored that President

Bush has nominated me to be a Member of the Council on Environmental Quality

(‘‘CEQ’’) and, if confirmed, to appoint me as chairman.

When it enacted the National Environmental Policy Act (‘‘NEPA’’) and created

CEQ over 30 years ago, Congress declared that it is the ‘‘continuing policy of the

Federal Government, in cooperation with State and local governments, and other

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concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to promote

the general welfare, to create and maintain conditions under which man and nature

can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.’’ Senator John Chafee, one of the greatest environmental statesmen of the Senate,

described this as a ‘‘tall order, but an important one.’’ I agree, and fully embrace

NEPA’s broad policy objective. It is why I joined the environmental profession. It

is why I have focused my legal practice on the most challenging matters of environmental policy and the promotion of innovative approaches to environmental protection. The commitment to responsible environmental stewardship is a family matter

in my household. My wife Susanna and I are constantly amazed by our daughter

Grace’s budding passion for nature and conservation. Every day my son Spencer

says ‘‘O.K. Daddy, give me an environmental issue,’’ and then earnestly and confidently discusses how to address it. Their passion and concern reinforces my own

commitment.

I therefore look forward with great enthusiasm to leading CEQ in its core mission.

First, to provide objective, well-informed, and realistic advice to the President, his

advisers, and the Cabinet about the future direction of environmental policy. Second, to coordinate the implementation of environmental programs and resolve policy

disputes among Federal agencies, State, tribal, and local government, and private

citizens. Third, to promote a balanced decisionmaking process that accounts for the

views of all affected parties.

I would like to highlight three aspects of my background that are particularly relevant to this nomination. The first is the strength of my commitment to serving the

public interest. I have exceptional role models, beginning with my father. With the

unflagging support of my mother, he spent over 30 years as a clinical professor of

child psychiatry working to improve the lot of children and families, often in the

most desperate of circumstances, in Baltimore’s inner city. I will count myself fortunate if I can bring to government service even a fraction of the decency and dedication to the public good that my father demonstrated every day of his career. I also

will be guided by the high standards of public service set by my mentors at the firm

who previously served both Republican and Democratic presidents and Governors

with distinction.

Second, I am a strong proponent of searching for and harnessing the power of consensus in meeting shared environmental goals. I have had the privilege of traveling

the world helping to create what is known as the ISO–14000 series of international

environmental standards. These standards promote effective, results-oriented environmental management and responsible environmental communication. They reflect

the consensus of hundreds of dedicated professionals from industry, environmental

organizations, consumer organizations, government and academia, from the United

States and over 50 other countries. Tens of thousands of organizations around the

world already are quietly and efficiently adopting these standards to address the environmental consequences of their operations. Remarkably, participation in this

process and implementation of these standards is entirely voluntary. I have seen

first hand the dramatic results that such voluntary, market-driven action can

achieve. It is faster, it is cheaper, and it works.

Third, I am a forceful advocate and practitioner of environmental stewardship

where it matters most at the source. I have spent much of the last 4 years traveling

the country helping companies implement ‘‘ISO–14001,’’ the international environmental management system standard. From Oklahoma City, Oklahoma to Ocala,

Florida, from Detroit Michigan to East Liberty, Ohio, from Windfall, Pennsylvania

to Kingstree, South Carolina, I have worked with business managers and operators

on the factory floor, showing them how to integrate environmental obligations into

their day-to-day operational practices and long term business planning. Their efforts

are predicated on three fundamental commitments: compliance, prevention of pollution, and continual improvement. These hard-working people are the nation’s front

line in environmental protection. We must do what we can to capitalize on their energy, unleash their creativity, and remove obstacles to their success.

President Bush has encouraged Americans to join him in renewing our commitment to protecting the environment and leaving our children and grandchildren

with a legacy of clean water, clean air, and natural beauty. Embarking on the 21st

century of environmental quality requires not only reinforcement of what is working, but also the zealous application of new ideas and methods.

Mr. Chairman, if confirmed, I look forward to advancing NEPA’s goal of ensuring

productive harmony between man and nature, through a constructive dialog with

Congress, with Federal, State, tribal and local government agencies, and most important, with the public whose trust we all hold.

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RESPONSES OF JAMES L. CONNAUGHTON TO ADDITIONAL QUESTIONS FROM SENATOR

BAUCUS

Question 1. What are you views on Natural Resource Damages? What are some

of the positions you’ve taken in the past on this issue? (Given the number of Superfund sites in Montana, and how much they cost, this is relevant.)

Response. Some of my personal, essentially academic views on natural resource

damages are set out in Evaluating the Present Natural Resource Damages Regime:

The Lawyer’s Perspective, in Natural Resource Damages R. Stewart, J.

Connaughton & S. Steel, eds. and contributors, National Legal Center for the Public

Interest (Fall 1995).

Apart from this, I have not taken personal positions, but have represented the

views of various clients in:

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• discussions with Congress, the Clinton Administration, and representatives of

State natural resource trustees, as part of Congress’ consideration of legislative reform of certain aspects of CERCLA’s natural resource damages liability regime

mainly during the 104th and 105th Congresses; • comments to the Department of Interior and the National Oceanographic Administration on proposed natural resource damages assessment rulemakings; some

of these comments were addressed in the final rulemakings, others were not addressed;

• petitions for review before the D.C. Circuit Court of Appeals supporting certain

aspects of natural resource damages assessment rulemakings and opposing other aspects of such rulemakings; some of these arguments were accepted by the court, others rejected in General Electric Co. v. United States Department of Commerce, 128

F. 3d 767 (D.C. Cir. 1997) and Kennecott Utah Copper Corp. v. United States Department of the Interior, 88 F.3d 1191 (D.C. Cir. 1996)

My guiding philosophy in all of these matters has been to refocus the liability and

damages assessment process in a manner that promotes settlements that achieve

reasonable restoration in a timely manner, while retaining fundamental due process

rights of the parties involved.

Question 2. Mr. Connaughton, what are your views on the NEPA process?

Response. As indicated in my written and oral statements to this committee, I

strongly support the objectives of NEPA. NEPA has served the American people and

the environment well. However, through my discussions with committee members

and conversations with various people who deal with NEPA, I am aware that concerns have been raised about certain NEPA processes or certain aspects of NEPA’s

implementation. I would be interested? in learning more about the concerns that

have been raised and work toward continual improvement of NEPA implementation.

Question 3. Are you supportive of reinstating categorical exclusions for small

projects, particularly small timber sales and stewardship projects in our National

Forests? Will you be helpful in making this happen?

Response. I am not familiar with the details of this proposal. If I am confirmed,

I would be happy to review this subject and discuss it with you further.

RESPONSES OF JAMES L. CONNAUGHTON TO ADDITIONAL QUESTIONS FROM SENATOR

REID

Question 1. As a member President Bush’s transition team at the EPA, you were

involved in distributing a questionnaire to organizations and individuals interested

in the work of the EPA. Who received those questionnaires? What information was

gained by the transition team from the questionnaires? How was the information

used? How will you use that information if you become a member of CEQ?

Response. The creation and distribution of the questionnaire was handled by an

advisory group coordinator who worked in a different part of the transition operation. I was indirectly involved with respect to reviewing a draft of the questionnaire and suggesting the names of individuals for the outside advisory group to

whom the questionnaire would be sent. I do not have either a copy of the questionnaire or the list of individuals ultimately selected for the advisory group, but I believe both were published during the transition. As I recall, the questionnaire included a short, fairly open-ended set of questions eliciting advice from advisory

group members to the new EPA Administrator concerning management and policy

issues that she may encounter during her time in office. The advisory group members submitted their responses to the advisory group coordinator, who then compiled

the responses into binders and provided them to Governor Whitman for her reference upon officially taking office after inauguration. I have made no decision at

this time whether or how to use the information from the questionnaires, if I become a member of CEQ.

Question 2. Could you provide details on what you and this Administration see

as CEQ’s role in advising and forming environmental policy?

Response. As indicated in my written and oral statements to this committee, I expect CEQ to continue to fulfill the statutory responsibilities established for CEQ by

the National Environmental Policy Act (‘‘NEPA’’). These include three core functions: First, to provide objective, well-informed, and realistic advice to the President,

his advisors, and the Cabinet about the future direction of environmental policy.

Second, to coordinate the implementation of environmental programs and resolve

policy disputes among Federal agencies, State, tribal, and local government, and private citizens. Third, to promote a balanced decisionmaking process that accounts for

the views of all affected parties. I am also aware that Congress has given CEQ a

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variety of specific responsibilities established by various statutes and that CEQ also

has a variety of specific responsibilities established by Executive Orders. As I have

not been confirmed, I am not in a position to articulate further detail concerning

the Administration’s plans for CEQ. I understand that key aspects of this planning

await CEQ having a confirmed chairman in place.

Question 3. How will the Council deal with other agencies within the Administration?

Response. If confirmed as a member of CEQ, I look forward to the Council working quite constructively with the other agencies within the Administration. The specific mechanics of such interactions will be established when CEQ professional staff

have been hired and key sub-Cabinet positions have been filled in the other Departments.

Question 4. During her confirmation hearing then-Governor Whitman testified

that Federal facilities should be subject to the same environmental requirements as

the private sector. What are your views on CEQ’s role in ensuring that Federal

agencies actually do comply with the letter and spirit of environmental laws? As you

know, there are a number of Federal facilities in Nevada, and in neighboring States

which impact Nevada, and there are very real concerns about whether agencies are

disclosing emissions that may effect surrounding communities, and potential health

effects associated with releases from those facilities. EPA and other Federal agencies, DOD for one, do not always agree on what is required, or whether requirements have been met. How can CEQ ensure that all Federal agencies are responsible environmental stewards?

Response. NEPA’s broad mandate contemplates a general role for CEQ with respect to contributing to Federal facility compliance. The nature and extent of CEQ’S

role, however, is a matter for decision within the Administration. If confirmed, I

would expect to be closely involved in such a decision. I will bring to those discussions my prior experience in environmental management, compliance assurance,

prevention of pollution, and resource optimization. I will also bring my experience

with incentives and disincentives to improved environmental performance and responsible stewardship.

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NOMINATIONS OF THE 107th CONGRESS,

FIRST SESSION

WEDNESDAY, JULY 25, 2001

U.S. SENATE,

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

Washington, DC.

The committee met, pursuant to other business, at 9:54 a.m. in

room 406, Dirksen Senate Office Building, Hon. James M. Jeffords

(chairman of the committee) presiding.

CONSIDERATION OF THE NOMINATIONS OF DAVID A. SAMPSON, ROBERT E. FABRICANT, GEORGE TRACY MEHAN III,

JUDITH ELIZABETH AYRES, AND DONALD R.

SCHREGARDUS

Present: Senators Jeffords, Smith, Inhofe, Bond, Voinovich, and

Chafee.

Also present: Senator Kay Bailey Hutchison and Congressman

Martin Frost.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS,

U.S. SENATOR FROM THE STATE OF VERMONT

Senator JEFFORDS. We will now open the nominations hearing.

Welcome to all the nominees and their families. I am sure you

are very proud to be here this morning.

Before recognizing members for opening statements, I would like

to ask each of you to introduce your families who are here today

as you come to the forefront here.

First, we have Mr. Sampson. Mr. Sampson, do you have members of your family with you?

Mr. SAMPSON. Yes, I do. I have my wife, Karen, and my twin 8

year-old sons, John David and Matthew Nicholas, my parents, Paul

and Joy Willis, and my sister Cheryl, and her son Jacob.

Senator JEFFORDS. Senator, welcome.

STATEMENT OF HON. KAY BAILEY HUTCHISON, U.S. SENATOR

FROM THE STATE OF TEXAS

Senator HUTCHINSON. Thank you. Mr. Chairman, we also have

the Congressman who represents Mr. Sampson’s district, Congressman Frost.

Senator JEFFORDS. Fine. Yes. Please be seated.

Senator PLEASE PROCEED.

Senator HUTCHINSON. Thank you, Mr. Chairman, very much for

recognizing me to introduce my constituent from Texas for the Assistant Secretary of Commerce for Economic Development position.

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I have known Mr. Sampson for a long time. My husband and I

have both worked with him in different capacities, and I cannot

think of anyone more qualified for this position than he is.

He is president of the Arlington Chamber of Commerce. Arlington is one of our fastest growing suburban areas in Texas. It is located between Dallas and Fort Worth, and it has been one of our

fastest up and coming cities for a long time. It is also the home of

the Texas Rangers.

I want to say that Governor Bush appointed Mr. Sampson to be

vice chairman of the Texas Strategic Economic Development Planning Commission in Texas because he wanted someone who would

look at all the regions of Texas and help them achieve their highest

economic potential. He did accomplish this by putting forward a 10-

year economic development plan for Texas. He subsequently

chaired the Texas Council on Workforce and Economic Competitiveness. This experience gave him the understanding of the need to

integrate economic and work force development efforts, a more efficient use of both sets of resources.

He is certainly a hard worker, but he has one added advantage

that I have assured him he will draw on in addition to his economic

development experience, and that is he is an ordained minister.

Now I told him in Washington he might need that more than all

of the other experience that he has had.

But seriously, I think that his breadth of knowledge and experience will bring his skills to the United States that he has used so

effectively for Texas. And I am pleased to be here for him today.

Senator JEFFORDS. Congressman Frost?

STATEMENT OF HON. MARTIN FROST, U.S. REPRESENTATIVE

FROM THE STATE OF TEXAS

Mr. FROST. Thank you, Senator, and other members of the committee. It is my pleasure to be here with David Sampson and to

lend my support to him for this very important position.

Arlington, Texas is the largest population center in my congressional district. David served as the president of the Arlington

Chamber of Commerce for 7 years. I worked very closely with him

on economic development issues. Arlington is represented by two

Members of Congress, one Republican, Joe Barton, and myself, a

Democrat. I can tell you that David Sampson was extraordinarily

good to work with. He always approached matters of economic development on a bipartisan basis, was extremely effective, extremely

cooperative, and I cannot think of any better person in the country

for this particular position than the nominee that is sitting to my

right and is appearing before this committee today.

Senator JEFFORDS. I thank you for your excellent statements and

excellent recommendations. I appreciate your being here.

Senator HUTCHINSON. Thank you.

Senator JEFFORDS. We will move on to the other nominees who

will be before us.

Mr. Fabricant, welcome. Do you have members of your family

that you would wish to introduce?

Mr. FABRICANT. Yes, I do. I would just like to introduce my wife,

Amelia, and my three children, my daughter, Enrica, she is 5 years

old, and my youngest son——

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[Laughter.]

Senator JEFFORDS. I see them waiving back there. They have got

good political waves. They are going to go a long way.

[Laughter.]

Mr. FABRICANT. I would also like to thank my parents for coming

here, Robert Fabricant and Jacqueline Fabricant. And I thank you

for the opportunity to speak with you today.

Senator JEFFORDS. Mr. Mehan, welcome to the committee. Please

introduce any members of your family that may be present.

Mr. MEHAN. Thank you, Senator. I am happy to have here representing all seven of my children and my wife, my oldest, Meg,

Margaret Elizabeth, who is up from Charlotte. We are under

strength today, but I think she will handle the duties.

Senator JEFFORDS. Thank you. We welcome you to the committee.

Ms. Ayres?

Ms. AYRES. Good morning.

Senator JEFFORDS. Good morning. We are pleased to have you

here. Do you have anyone you would like to introduce?

Ms. AYRES. I do. My family was able to come in from California.

My husband, Jack Burke, and our daughter, Coventry Ayres

Burke. And then I am fortunate to have extended family here able

to come; Julie and Joe Nisonger, Dr. Steve Peters, and Robert

Phiffer.

Senator JEFFORDS. Thank you. Pleasant to have you with us.

Mr. Schregardus, welcome.

Mr. SCHREGARDUS. Good morning, Chairman. Thank you for this

opportunity. I have brought with me today my daughter, Sarah

Schregardus, back here. I look forward to the opportunity to speak

with you this morning.

Senator JEFFORDS. Fine. Well thank you all. I welcome you to the

committee. We want to be expeditious and try to make sure that

all of you get to your working stations as soon as possible. However, we would of course like to have your opening statements.

We will go back and start with Mr. Sampson.

STATEMENT OF DAVID A. SAMPSON, NOMINATED TO BE ASSISTANT SECRETARY FOR ECONOMIC DEVELOPMENT, DEPARTMENT OF COMMERCE

Mr. SAMPSON. Mr. Chairman, Senator Smith, and members of

the committee, thank you for the opportunity to appear before you

this morning. I am very grateful to Senator Kay Bailey Hutchinson

and Congressman Frost for their kind introductions, and to you for

the warm welcome you have given me and my family. My family

is very excited about the prospect of moving to Washington. It may

interest you to know that when the President first announced his

intent to nominate me, my son, John David, was excitedly telling

his classmates about the fact that we had been asked to come up

here, but he made sure to let his classmates know that it was not

for certain that we were moving yet. He said, ‘‘My Dad still has to

be confused by the U.S. Senate.’’ [Laughter.]

Mr. SAMPSON. I hope that he was not being prophetic but merely

had a slip of the tongue.

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Senator JEFFORDS. Let me interrupt you. I think some of my

members would like to make some statements before we get moving. I am sure they have other things that may have to take them

away. So why not start with Senator Smith, do you have a statement, or you can recognize as you see fit.

OPENING STATEMENT OF HON. BOB SMITH, U.S. SENATOR

FROM THE STATE OF NEW HAMPSHIRE

Senator SMITH. Thank you, Mr. Chairman. First of all, let me

thank you for bringing these nominations up promptly. In the

years during my tenure as chairman with a different Administration, we brought the nominations through promptly, and I think,

given the disruptions that occur as people wait and anticipate

these positions, it is a disruption if there is a delay. And so I appreciate your promptness here.

There is one who is not here, Jeff Holmstead, who is the President’s nominee to head EPA’s Air Office. He has been considered

by the full committee and his nomination is still languishing. I

would encourage you to do what you can to move that forward.

I want to apologize to the witnesses because I will have to leave

at around 10:30. One of the problems of this place is they try to

have us in two or three places at the same time. None of us have

been able to figure out how to do that yet.

But I just want to take a few seconds, Mr. Chairman, just to welcome each and every one of you, especially Judith Ayres, because

she was married in Squam Lake which is just a few miles from my

house. So she has good judgment, I know that right up front. So

I am looking forward to hearing the testimony of the nominees, and

appreciate again, Mr. Chairman, your bringing them forward.

Senator JEFFORDS. Anyone else desire time? Senator Bond.

OPENING STATEMENT OF HON. CHRISTOPHER S. BOND,

U.S. SENATOR FROM THE STATE OF MISSOURI

Senator BOND. Thank you, Mr. Chairman. No. 1, thank you for

holding these hearings. As Senator Smith has pointed out, with all

the difficult problems that we face, the Administrator absolutely

has to have her team in place, the Bush Administration must have

this team in place. We cannot expect progress to occur, questions

to be answered until they are. So I thank you for holding the hearing. I look forward to working with you to make sure that these

and all the others who have been cleared by the committee are confirmed prior to the August recess so there will not be any confusion, so that families will know where to start school in September,

and that is vitally important.

I have to apologize. With appropriations bills on the floor, I am

going to have to leave. One of those bills may be coming up today

on EPA, which probably my participation on the floor may be more

important than here.

I want to express a special welcome to Tracy Mehan, who claims

to come from Michigan, but really we all know that he was the director of the Missouri Department of Natural Resources from 1989

to 1992. We are always happy to share experience with other

States in need, like Michigan. And in this instance, he can use that

expertise developed there to help the nation’s water problems. I

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think that this experience and with his midwestern perspective,

the EPA’s Office of Water will be very important.

I have had the opportunity to talk to the nominee. I hope that

they will be getting back to us with an agency recommendation on

the fishable waters measure, a bipartisan measure which I have

now sponsored in this second session of Congress, to have locally

led, incentive-based, voluntary solutions to assure healthy watersheds and fishable waters. This is something that we ought to be

able to do as we have much work to do in the contentious areas

of clean water.

This office is going to have to work with this committee, and I

believe that from our previous discussions you understand how

critical the water project funding is and the backlog is very significant. This is something that is a huge insolvable problem for the

EPA Appropriations Subcommittee. And I appreciate very much

your amending the agenda to say that we would take a look at

these water infrastructure problems, because they are huge.

We look forward to working with Mr. Schregardus on assuring

compliance assistance and compliance incentives, fixing environmental problems. We look forward to hearing from the EPA a comprehensive plan to assure that the proposed transformation of environmental enforcement or the transmogrification from Federal enforcement to State enforcement will work. As you probably know,

the report coming out of the appropriations committee does not

make that transfer. We did not feel that there was sufficient information on how State enforcement would take over for Federal enforcement, and that is why we do not have the bipartisan support

that we need to make that transfer. But we will look forward to

working with the Administrator and Mr. Schregardus.

Mr. Fabricant, being the Office of General Counsel, I will not

even comment on that. You have got a full plate, and more than

that.

And I just had the opportunity to mention to Ms. Ayres that in

the international activities area we have the potential to make a

significant contribution to improving the quality of life, even preserving life in emerging nations around the world if we export the

technology that developing in the United States that is regulated

by the EPA in addition to the FDA and the USDA. I am talking

about biotechnology, genetically modified organisms. Under proper

regulation, we can reduce the amount of chemical pesticides used

not only in this country, but around the world. And some of the

problems in countries I have visited have been extreme because

they have over-used and misused harmful chemicals that can be replaced by genetically modified organisms with the BT DNA included to kill pests, for example, the genetic modifications that can

stop the viruses. We can help African farmers produce crops that

will feed their country. We can promote things like the golden rice

that will stop deaths of children from malnutrition and blindness.

But we need the informed leadership of our EPA as well as FDA

and USDA to help stop the hysterical, unscientific, anti-GMO attitudes that Europe has tried to foist on the world. This is going to

be an exciting challenge, and I look forward to working with Ms.

Ayres.

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And I apologize for the length of my statement. We have a lot

of work to do in cooperation with these people and between the appropriations subcommittee and this committee. Mr. Chairman, I assure you that we look forward to working with you.

Senator JEFFORDS. You articulated very well the problems that

we have. I appreciate your interest and explanations. You are a

valuable asset.

Senator BOND. We cannot solve them in appropriations by ourselves, so we look forward to working with you and these distinguished nominees. I thank the Chair, and I thank the nominees.

Senator JEFFORDS. I look forward to working with you, Senator.

Senator Voinovich?

OPENING STATEMENT OF HON. GEORGE V. VOINOVICH,

U.S. SENATOR FROM THE STATE OF OHIO

Senator VOINOVICH. First of all, I would like to thank you, Mr.

Chairman, for the speedy hearing on these nominations. I know

that the Administrator and Secretary are anxious to have them on

board so they can get on with their work.

I would like to take a brief moment to thank my colleague, Senator Carper, for speaking in favor of legislation we introduced jointly earlier this month at yesterday’s Government Affairs Committee

on Senator Boxer’s legislation to create the EPA as a cabinet status

agency. I also appreciate his offer yesterday to Administrator Whitman to try and help her get her nominees confirmed before the August recess. I hope this committee will quickly approve these nominees early next week, and hopefully the full Senate will consider

them before the recess.

Senator JEFFORDS. That is my intention and we are working toward that direction.

Senator VOINOVICH. And it is my pleasure to welcome all the

nominees before the committee today, Mr. Sampson, Mr. Fabricant,

Mr. Mehan, Ms. Ayres, and especially Mr. Schregardus. I did have

a chance to work with Mr. Mehan when he was with Governor

Engler in Michigan while I was Governor of Ohio.

I would like to say, Mr. Chairman, that I have had the distinct

pleasure of working with Don Schregardus for many years. I was

pleased on June 28th that President Bush nominated him to be the

Assistant Administrator for the Office of Enforcement and Compliance Assurance at the EPA. I strongly believe that he is the right

individual for this important position. I respectfully request that

you support his nomination in the committee.

Don has spent his entire career, this is really interesting, working for environmental improvement. He was trained as an environmental engineer and began his career with the Environmental Protection Agency in 1974 as an inspector and compliance officer in

the Water Division. He worked in Region 5 of EPA for 16 years,

rising to be the chief of the compliance section.

In 1980, then Governor Dick Celeste recruited Mr. Schregardus

to be deputy director of Water Programs for the Ohio Environmental Protection Agency. Two years later, when I was elected

Governor, I was pleased to appoint him to my cabinet as director

of the Ohio Environmental Protection Agency because I was impressed with his long career and his service as a professional in enVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00130 Fmt 6601 Sfmt 6601 78075 SENENV1 PsN: SENENV1
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vironmental protection. I was lucky to have him serve in my cabinet for my entire term.

He successfully managed a department which is responsible for

implementing laws and regulations regarding air and water quality

standards, solid hazardous and infectious waste disposal, water

quality planning, supervision of sewage treatment and public

drinking water supplies, and cleanup of unregulated hazardous

waste sites. He took an agency which had been poorly managed

and made it into one of the most effective in my administration.

We doubled funding for the Ohio EPA at the expense of our polluters. Ohio’s air and water quality were improved. Ohio became

the first State in the midwest to receive Federal approval for a

massive new industrial air permitting program. We created voluntary incentives that led to real cleanups. Under Mr.

Schregardus’ leadership, Ohio EPA increased enforcement inspections and the total amount of civil penalties collected substantially.

Moreover, Don Schregardus is a fair person. In light of the Federal Government’s pressing need for effective environmental enforcement, I can think of few individuals more experienced or

qualified to assume this role at the EPA than Mr. Schregardus.

Originally, given his background in EPA’s regional office and heading a State agency, I recommended Mr. Schregardus to be administrator for Region 5. I later learned he did not receive the appointment; somebody else got it. I was surprised later to learn that Administrator Whitman had selected Mr. Schregardus to be Assistant

Administrator based on his strong record and career in the Federal

and State environmental enforcement. So, Mr. Schregardus, I want

you to know that your nomination had nothing to do with me.

Somebody looked at your resume and decided this person would

make a good person for the job that you are being nominated for.

So I am pleased that the Bush Administration has selected an individual of integrity and professional experience and has given him

the opportunity to rise.

He is going to be, I think this is important, in charge of an agency where he started out as an inspector. Too often I think in government today we bring in people from outside, maybe sometimes

from the private sector, and that is not to say anything against

that, but to have somebody work their way up through the ranks

I think will be an especially good thing for the EPA, where people

who work in that agency will say, hey, there is somebody that

started out as an inspector and now is heading up this particular

agency. So it does happen. Thank you, Mr. Chairman.

Senator JEFFORDS. I thank you, and thank you for that excellent

recommendation. I agree with you that those that have sometimes

had the opportunity to be at the lower levels in the sense of the

hierarchy end up as to the most knowledgeable in how to solve the

problems.

Senator Inhofe?

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. Yes, Mr. Chairman, I do want to have a brief

opening statement in order to bring out two very significant things

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where I am going to be asking each one of you for a firm commitment.

First of all, the prior Administration by-passed the safeguards of

the Administrative Procedures Act which required Federal agencies

to provide opportunities to informed, meaningful public participation as a result of regulatory rulemaking process. Now, we set up

the APA to force the bureaucracy to go in and get the opinions, get

the ideas, have a system whereby comments can be heard. But the

last Administration avoided that by making liberal use of interim

final rules, guidance documents, and policy statements which did

not require the public comment. For example, in April of 2000, the

U.S. Court of Appeals in Appalachian Power v. EPA actually had

to strike down an abusive EPA guidance document. The court

found: (1) EPA was creating broad new authority through the guidance document; (2) the EPA did intend the guidance document to

have binding effect; and (3) the guidance document was illegally

issued outside the APA rulemaking procedures.

So I would ask each one of you if you will give a commitment

to this committee at this time to stop this practice. Would any of

you not commit to do that at this time?

[No response.]

Senator JEFFORDS. That is a better way to ask it.

Senator INHOFE. Thank you very much.

The second thing, I have told this story so many times and I

know that Administrator Browner did not want to hear it anymore,

and she is not hearing it unless she is tuned in right now, and that

is the story—I am sure every one of us up here has had phone calls

from people that received almost terrorist type of demands from

the EPA. And these are going to the people who are paying for all

this fun that we are having up here. The story I told was the

Jimmy Dunn story, a third generation owner of a lumber company,

he received a notice in 1994 and called me up and said the EPA

has just put me out of business. That notice was very carefully

worded to inflict terror in this individual to make him think that

they were going to fine him $5,000 a day because for the past 10

years he had disposed of used crankcase oil that eventually made

its way to a Superfund site. But he had done so legally, selling it

to people who had licenses to dispose of it. Anyway, that turned out

that everything is fine with him. However, I have often wondered

what about those hundreds of people out there that do not call

their Congressman or their Senator.

So what I would like to ask of you, and probably, Mr.

Schregardus, you particularly, and I have talked to you about this

in my office, because you are going to be dealing with this type of

thing, but would all five of you make a commitment to work with

citizens and not harass them and not terrorize them. Yes. Yes. OK.

Thank you very much.

Mr. Chairman, Senator Smith and I both have the Senate Armed

Services Committee, a very significant hearing, and that is the reason we have to leave early. But I wanted to get those two things

in.

Senator JEFFORDS. I understand. I would say that this may expedite things a bit too.

[Laughter.]

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Senator JEFFORDS. Senator Chafee?

OPENING STATEMENT OF HON. LINCOLN CHAFEE,

U.S. SENATOR FROM THE STATE OF RHODE ISLAND

Senator CHAFEE. Thank you, Mr. Chairman. Welcome to the

nominees. Mr. Sampson was saying in his opening statement that

his young son had said that he is not the Assistant Secretary yet

because he still has to be ‘‘confused’’ by the Senate. So, welcome

here, and probably prophetic.

Senator JEFFORDS. All right. I guess we will go right back to

where we started and allow you to make your statements.

Mr. Sampson, please proceed.

STATEMENT OF DAVID SAMPSON—CONTINUED

Mr. SAMPSON. Thank you, Mr. Chairman. I do wish to thank the

President for nominating me for this position, and express my gratitude to the committee members that I have had the opportunity

to visit with as well as the staff members. I also extend my gratitude to Secretary of Commerce Don Evans and his staff and to the

staff of EDA for all their support and assistance that they have

provided me since I have arrived here.

I have submitted testimony for the record, but would like to summarize my background in economic development philosophy for

you. I was born and raised in rural southern Indiana, so I was exposed firsthand to the economic challenges that confront many of

our communities even today. I witnessed the economic dislocation

caused by vast swings in farm commodity prices, outmigration of

manufacturing facilities.

I am passionate about economic development. I believe that it is

an important public policy goal to maximize wealth and minimize

poverty. The public sector cannot do that. It is the private sector,

through the investment of capital, that creates wealth and minimizes poverty in communities. But the role of the public sector

plays a very important role in creating the kind of environment

where the private sector will risk making capital investment that

creates the kind of jobs that we want for all of our citizens. And

so I am excited about this opportunity. I believe that my past experiences in Texas in economic development, both at the State and

local level, will prepare me well for this position should I be fortunate enough to be confirmed by the Senate.

My long term goal is to lead EDA to become the premier standard bearer for economic developers across the country. I believe

that EDA’s programs provide an appropriate and critically needed

service to America’s distressed communities. But I am equally committed to the belief that Government is accountable for the funds

its spends and the programs it carries out. As the premier economic development partner, EDA must set the standard for excellence in its own operations and management.

My view of management is that an organization functions best

on the basis of teamwork and partnerships. We can move EDA forward as long as we do it as a team. And I look forward to working

with the staff members of EDA should I be confirmed as well as

economic development partners at the local, State, and Federal

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level, and certainly, most importantly, working with this committee

and the Congress and its staff.

A recent work force analysis study performed by Booz Allen highlighted that in EDA the commitment to facilitate economic development and provide superior customer service is pervasive. I think

that speaks well of the current staff of EDA. I look forward to having the opportunity to join them should I be confirmed.

In closing, I would like to thank my family for allowing me to

uproot them from Texas. I consider it a great honor to have the opportunity of serving President Bush and my country in this position. I appreciate the opportunity to appear before you today, and

look forward to answering any questions you may have.

Senator JEFFORDS. Thank you very much for your statement. I

have just two questions for you. Recently, the Economic Development Administration, EDA, finished a comprehensive year review

of the agency’s work force and organizational structure. Their review recommended that the EDA work to improve communications

between the regional offices and the headquarters in an effort to

better serve economically distressed communities. Can you please

discuss how these improvements can help the EDA effectively and

efficiently help small rural States such as Vermont.

Mr. SAMPSON. Yes, sir. The Booz Allen study, I compliment my

predecessor for authorizing that study. I think it is very helpful.

The regional offices are the front line interaction between EDA and

the States and local communities. It will be our goal to ensure that

the regional administrators are very plugged in to what we are discussing at the headquarters level. But more importantly, I think

the most important thing we can do is to align our existing resources appropriately. And by that, I mean making sure that our

regional offices have the kind of staff that they need to be able to

adequately cover all of the territories. We need to make sure that

our EDRs, Economic Development Representatives, are strategically placed to adequately cover the geographic and demographic

distribution of those territories.

I think the recent legislation which expands our ability to work

with communities through qualifying under Special Needs categories will be very helpful in States like Vermont where the overall unemployment rate is low but you do have areas of significant

under-employment. One of the things that we will work to do is to

expand our planning grants and our infrastructure grants to the

broad range of communities, and I think the Special Need qualification that you have authorized us to utilize will be very helpful.

Senator JEFFORDS. While the economic distress in Vermont may

be not country-wide, there are many small towns and villages that

are in need of Federal economic development assistance. Can you

discuss how the EDA allocates its economic development resources,

and more specifically, discuss how EDA works to ensure that small

towns, like in Vermont, St. Albans or Randolph, are not left behind

when it comes to the Federal development dollars.

Mr. SAMPSON. Yes, sir. Those funds are apportioned on a pro rata

share to the six regional offices around the country. All grants

must be consistent with a comprehensive economic development

strategy that is produced at the local level, and then those local

communities advance a proposed project to the regional office for

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review and approval. I think it is vitally important that we expand

the coverage and the reach of our economic development representatives in working with those small and rural communities to ensure that (1) they do have a comprehensive economic development

strategy by providing adequate and expanded planning grants to

them; and (2) work with them to advance specific projects that fit

within their comprehensive economic development strategy to the

regional office.

Senator JEFFORDS. Mr. Fabricant, please proceed with your

statement.

STATEMENT OF ROBERT FABRICANT, NOMINATED TO BE

GENERAL COUNSEL, ENVIRONMENTAL PROTECTION AGENCY

Mr. FABRICANT. Mr. Chairman, 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 as the President’s

nominee to be General Counsel of the Environmental Protection

Agency. I want to express to you and your staff my appreciation

for the many courtesies extended to me in preparing for this hearing.

When Governor Whitman asked me if I would consider serving

as General Counsel of EPA, it took me but a second to say yes. I

have spent virtually my entire career in the public sector, most recently as Governor Whitman’s chief counsel. Prior to that, I served

in positions in the Governor’s office that specialized in environment

matters, and I have also served in the capacity as a deputy attorney general for the State of New Jersey with litigation and counseling advice to our New Jersey Department of Environmental Protection. Since being admitted to the bar, my primary focus has

been a career in environmental law.

Given that professional experience in this area, the opportunity

to serve at EPA in this capacity is a truly humbling thing for me.

I am grateful to Governor Whitman, to the President, and to you

for this opportunity. Should you do me the honor of recommending

my confirmation to the Senate, and should I be confirmed, I will

devote all my efforts and energies to doing a good job.

Senator JEFFORDS. Thank you. Mr. Fabricant, you have spent

much of your career with Administrator Whitman as her advisor

while she was Governor of New Jersey. Now you are looking at

being her legal adviser of EPA. What do you see as the biggest

challenge in taking the step from State government to the General

Counsel for a Federal agency?

Mr. FABRICANT. The largest step I believe is the complexity of the

issues and the broad range of State issues that will arising and reconciling the different regional aspects of the larger Federal EPA

versus a State like New Jersey, which has many of the same issues

that are nationwide but not at the level and complexity that you

need to reconcile them at the Federal level.

Senator JEFFORDS. Thank you.

Mr. MEHAN.

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STATEMENT OF GEORGE TRACY MEHAN, III, NOMINATED TO

BE ASSISTANT ADMINISTRATOR FOR THE OFFICE OF

WATER, ENVIRONMENTAL PROTECTION AGENCY

Mr. MEHAN. Thank you, Mr. Chairman, members of the committee, for the privilege to address you as President Bush’s nominee for Assistant Administrator for Water at EPA.

I am very grateful to the President, Governor Whitman, and this

committee for being considered for this tremendous responsibility

to protect the waters of the United States. I look forward to working with you all to ensure that our children continue to enjoy the

fruits of America’s bounty, particularly the lakes, rivers, wetlands,

and oceans.

I grew up on the Mississippi River and had the good fortune to

marry a resident of the Lake Michigan shores. My wife and children, even as we speak, are enjoying a summer’s respite on a lake

in Wisconsin. And my parents are on their way to the coast of

South Carolina for a well-deserved vacation. My family, just as

most American families, realize that water defines much of their

lives, at least the most enjoyable aspects. But for many other

Americans, many more Americans, it is even more important in

that it is the basis of making a living, supporting a business, or

even feeding themselves.

Given the importance of water in the lives and occupations of our

citizens, it is understandable that starting in the 1970’s the nation

began the hard work of restoring its water quality with very great,

albeit limited, success. The strength of our economy in the postwar

era, no doubt created both the desire and the means of cleaning up

the waters, and I believe that has a lot to do with our success. But

it was not just the money. It was the love of our country and its

beautiful waters.

Many commentators have noted the evolving nature of the challenges to further improvements in water quality. We need to look

beyond the traditional discharge pipe in the water to more generalized sources of runoff, polluted runoff. There is also the need to

look at the entire watershed to assess the most cost-effective means

of intervention and reduction of a target pollutant. These and other

challenges, such as restoring contaminated sediments and preventing air deposition of pollutants to our waters, will require new

and creative ways of meeting our responsibilities of stewardship in

this new century.

I hope to contribute to the search for solutions to the water quality challenges of the day, working with the White House, Governor

Whitman, and of course this committee to involve stakeholders

from the public and private sectors, from State and local government, and from people inside and outside of government.

Working together, I believe we can identify and implement successful strategies to maintain and restore the chemical, physical,

and biological integrity of our waters. No doubt many of these

strategies will be tailored to specific problems in specific communities. Hence, the importance of the watershed as both a social and

hydrological reality. Here is where communities, neighbor to neighbor, can engage one another, educate each other, persuade one another in a mutual quest for shared goals.

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There are, of course, other problems national in scope where the

Federal role is a significant if not a paramount one. This committee

has developed legislation directed EPA to work with States, tribes,

and other Federal agencies to help finance water infrastructure, to

set national drinking water standards, to protect wetlands, to control discharges from industry and sewage treatment plants, and, of

course, to reduce nonpoint source pollution through various methods. The impact of air pollutants, such as mercury or nitrogen, on

water quality also requires national attention. This is a classic

cross-media problem and we will need a coordinated approach to

addressing pollutants which are a threat both to air and water.

Americans view conservation and environmental protection as

important elements of the public agenda. They look to public officials to harmonize these priorities with social and economic objectives. This is a task of great difficulty, but one that is well worth

the effort.

I will strive to meet these challenges while relying on the best

available science and economic analysis with due regard for the

statutory directives of Congress.

I will be honored to work with this committee, Mr. Chairman, to

accomplish the hard work of protecting and restoring our nation’s

water quality. Again, I thank you for your time and consideration

today.

Senator JEFFORDS. Thank you, Mr. Mehan. As you well know,

there are indications that there is a crisis of rather large proportions with respect to the wastewater and drinking waters in this

nation. In fact, it has been estimated that over the next 20 years

communities will need between $600 billion and $2 trillion to upgrade their water infrastructure. I have several questions for you

related to this issue. What do you see as the Federal Government’s

role in funding water infrastructure?

Mr. MEHAN. Let me say, first of all, there is a role and I think

we are at the front end of what has to be a very sustained dialog

in fleshing out and defining what that role is. Clearly, historically,

most of the resources that have gone into our infrastructure have

come from municipalities, local governments, and other sources.

But there has been a clear Federal role. And certainly when you

look at interstate bodies of water, when you look at communities

in distress, smaller communities running into affordability issues,

there is clearly I think an opportunity to explore what that role is

and to what degree.

Again, I am very pleased that Governor Whitman has listed this

infrastructure issue as one of her top priorities. I am very pleased

to begin working with her and the Administration and this committee to flesh out and give some direction and specificity to what

that role is. Again, I will be one voice among many in the Administration, but I can tell you there is a Federal role, it is a significant

one, but it does need some refinement, some direction as to what

is the legitimate and appropriate targeting of that Federal role and

involvement.

Senator JEFFORDS. As you know, this is going to be a very critical

issue and finding the funding, with all the other priorities that we

have, is going to be very difficult, especially in looking at the limits

that were placed on EPA’s funding by the recent budget agreement.

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So this committee is going to be dedicated to trying to work with

you to make sure that we do all we can to help the States and local

communities.

I am also interested in your views on the State Revolving Fund

programs for supporting drinking water and wastewater infrastructure. Are these SRF programs working well? Or do they need to

have changes, and if so, what changes would you suggest?

Mr. MEHAN. Generally, I would say yes. At least from the standpoint of a State official and most of the State officials I have

interacted with, the SRF program has been an effective one. It is

one that I think both EPA and the States have been comfortable

with. Generally, that is a good model and a good mechanism that

has been in place these many years.

However, in this age of continuous improvement, there is always

room for more improvement and to what extent it can carry the

load necessary for all these new challenges, especially as we look

at grants versus loans. But in the main, it is a good program and

it is one of the successes of the last couple of decades. So I think

it is a question of fine tuning and refining it. I think it has worked

and it provides a lot of lessons for the future.

Senator JEFFORDS. Senator Voinovich?

Senator VOINOVICH. Do you think that the current Federal program to help communities in terms of their water and waste treatment facilities is adequate?

Mr. MEHAN. If you view that question in terms of what the objective need is, there is a huge need, a huge need, and there may

never be enough resources from the Federal Treasury to deal with

that. However, I think we need to think comprehensively, not just

on the money side, but on the technical assistance side, on the

asset management side, and look at a way to optimize whatever

Federal resources are ultimately available.

Again, the needs, as the Chairman indicated, are large across the

board, whether we are talking wastewater or drinking water, in

terms of infrastructure, in terms of just operating expenses. So in

an objective sense, no. But I think the question we are going to

have to face at some point, whatever role the Federal Government

has will no doubt be a limited one, and the question will be how

to optimize and fully leverage and effectively use whatever resources are eventually available through Federal sources.

Senator VOINOVICH. One of the things that I am concerned about,

and you must have experiences, we do have an aging infrastructure

in both water and in sewers. If you are candid and intellectually

honest, you have to look back and find that we made major improvements in waste treatment when the Federal Government instituted the 75–25 program, which went off I think in the middle

of the 1980’s. That problem is still there.

In addition to that, I think you are familiar with a lot of the new

requirements that are coming out of the Environmental Protection

Agency particularly in the area of CSOs and stormwater overflows.

I would think it would be incumbent upon the next individual that

has this job to review those new requirements that are coming out

to make sure that they make sense from a common sense point of

view. And if they do, to recognize that the local people are not able

to handle that by themselves. I have got a bill in this year to inVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00138 Fmt 6601 Sfmt 6601 78075 SENENV1 PsN: SENENV1
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crease the SRF from $1.5 billion to $3 billion a year over 5 years,

$15 billion. Right now, we are trying to get a little paltry sum of

money, Mr. Chairman, we had the Wet Weather Program last year,

we asked for $1.5 billion, $750 million in this budget just does not

provide for it. And then the WIN organization has come up with

a proposal over a 5-year period of looking at spending about $57

billion to deal with the problem.

I would hope that the director of the agency and you would be

forthright and candid with Congress in terms of what the needs

are, and to understand that there is more of a role for the Federal

Government to play currently than is now being played. Some of

these new things coming out of the EPA are unfunded mandates

and somehow we have got to grapple with this situation and we

have to get it on the table if we are going to deal with it.

Unfortunately, we have these unmet Federal needs and we are

going off in new directions and new programs and just ignoring the

fact that these need to be addressed. I would like to hear from you.

Would you be willing to be an advocate there in terms of bringing

these things to our attention?

Senator JEFFORDS. I share the Senator’s feelings there.

Mr. MEHAN. As I have said, I hope I have been direct and responsive, infrastructure is a huge issue and there is a significant

Federal role. Beyond that, I intend to work very hard, based on the

priorities the Administrator has set out, to formulate policy that I

think comprehensively addresses all the issues you have raised,

both in terms of the resources side, the money side, but also what

are the legitimate mandates. Are we looking at these rules in a

way where we are getting value-added, we are getting the biggest

bang for the buck. On top of that, as I say, I think a third thing

which I am hearing from the career staff is the whole issue of asset

management. Are we managing the existing capital infrastructure

in a way that prolongs its life.

So, again, that issue, as well as defining what is the appropriate

extent of the Federal involvement, are all the kinds of issues that

I intend to weigh in on and, hopefully, be a robust participant in

those discussions within the Administration, and as we move out

to the next concentric circle, that is the Senate and the House, to

weigh in heavily on those issues.

Senator VOINOVICH. Thank you.

Senator JEFFORDS. Mrs. Ayres, please proceed with your statement.

STATEMENT OF JUDITH ELIZABETH AYRES, NOMINATED TO

BE ASSISTANT ADMINISTRATOR FOR THE OFFICE OF INTERNATIONAL ACTIVITIES, ENVIRONMENTAL PROTECTION

AGENCY

Ms. AYRES. Good morning. I am honored to have the opportunity

to appear before this committee to see your confirmation to serve

as EPA’s Assistant Administrator for the Office of International Activities. It is a distinct honor to have been nominated by the President and to have the support of Governor Christine Todd Whitman.

If the Senate confirms my nomination, I also look forward to working closely with members of this committee, and other members of

the Senate and the House of Representatives.

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I believe the Office of International Activities in EPA is a place

where a common understanding and approach can be developed to

address the many global environmental problems that confront us.

If confirmed, I pledge to use my experience and talented staff to

promote a spirit of environmental stewardship which reflects Administration priorities.

Today, in seeking the committee’s confirmation, I offer as qualifications my academic background, my public and private sector environmental experience, and my record in both venues as a proven

and fair manager committed to doing the public’s business in a

public way to pursue high environmental priorities.

Environmental protection and gain are at the very heart of EPA’s

major program areas. Each program carries an essential international dimension; addressing pollution of air, water, solid and

hazardous waste, toxic chemicals, and also emergency response

functions, and pesticides. The international dimension is important

because we know what goes on in backyards halfway around the

world may also end up in our own.

I would also offer comments on the people of the Office of International Activities. This is an exceptionally talented, dedicated,

and professional group of public servants who seek a well-managed

office with challenging and interesting work, the resources to get

it done, and a work environment that is fair and equitable. Mr.

Chairman, President Bush, Governor Whitman, and I commit both

to the committee and to the Office of International Activities that

going forward, the office will be well-managed, all managers and

employees will be held accountable, the world will be challenging,

and the work environment will be fair and equitable.

In closing, I have chosen to seek confirmation and to re-enter

public service because I believe public service is the noblest of professions and I believe protection of the environment, in all its many

dimensions, to be the most vital of endeavors.

Thank you. I shall be pleased to answer any questions you might

have.

Senator JEFFORDS. Thank you for an excellent statement. If confirmed, you will be the head of an office within EPA that has responsibility for international activities. Given the Administration’s

position on Kyoto and climate change, our international relations

on these issues is very important right now. How do you see the

role you will play within the Agency, the Administration, and the

international community on these issues? What is your role?

Ms. AYRES. I would ask for some clarification, Mr. Chairman. Are

you referring specifically to Kyoto or to all international activities?

Senator JEFFORDS. Either way. Your choice.

Ms. AYRES. Then thank you, I will take the broader approach.

[Laughter.]

Ms. AYRES. And that would be, the Office of International Activities at EPA works collaboratively with other entities within the

Federal Government and certainly with other entities within EPA

itself, the program offices. So International Activities will be working with Water, certainly the General Counsel’s Office, we are not

doing much in the Enforcement, but all of the areas internally, and

then working closely with the State Department, Treasury, with

the Trade Representative. So there is a real collaborative effort. On

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a few issues, EPA Office of International Activities has the distinct

lead. Certainly, one of those areas has to do with a very vital program going on on the Mexican-U.S. border.

Senator JEFFORDS. Let us just focus for just a second on Kyoto.

What are your views or your expectations with regard to the international impacts?

Ms. AYRES. Kyoto, certainly an issue in the new. Certainly an

issue of great interest to you, I am aware, and certainly the Agency

is aware, the Administration is aware. At this time, the Administration has chosen to not have our country be a party to Kyoto. The

two issues there essentially are issues of equity regarding the numbers of countries who are participating and who will be, so it would

be an equity issue, and then it would also be an issue of how it

would affect our economy. The feeling of the Administration is that

these control mechanisms would have deleterious effect on our

economy.

The Administration, as you know, is conducting a cabinet level

review of climate change policy. They are working on a product, I

do not know what that product is, when that product will be available, but I do know that the Administration is committed to looking at this issue at the cabinet level, and that is happening regularly.

Senator JEFFORDS. Just let me pass information on to you. I met

recently with a number of different countries that are leaders in

the environment and they expressed deep concern over the attitude

of the United States with respect to Kyoto. I just want to pass that

on because I think we have a responsibility to understand the reactions of the world community when we take a position which is discouraging with respect to our cooperation in Kyoto. I just want to

pass that on to you.

Ms. AYRES. Thank you, Senator. In response, let me say that

should I be confirmed, both I and the Office of International Activities look forward to working with you and the entire Congress to

the extent that we are involved in this issue as the process moves

forward.

Senator JEFFORDS. Senator Voinovich?

Senator VOINOVICH. On Kyoto, if this country is unhappy with

the current Kyoto treaty, do you think it is incumbent on us to

come back with an alternative?

Ms. AYRES. I think it is incumbent upon us to work in the interest of the greater good for the global environment, for the community of nations. I believe that first steps have been taken in that

the Administration believes that the climate change is a problem,

believes that there is a man-induced component of that. And from

my perspective, having been at the Agency for some 12 nonconsecutive days, in my capacity as a consultant, I am prohibited from attending any meetings outside of the EPA itself. So I am not a principal in this issue at this time. However, I believe that the Administration has strong feelings that they are wanting to be valueadded, and if that is in fact bringing forward a plan, possibly domestically and internationally, that will be done.

Senator VOINOVICH. Well, I would suggest that is what the position should be. We have strong feelings and I concur with some of

the reservations the President has about it. I have had hearings on

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the issue of global warming and there certainly is a difference of

opinion among the scientists. But the fact of the matter is that

there is a problem and it seems to me we should be part of the solution and not part of the problem.

This issue has even larger implications than just the issue of the

environment. It has large implications in terms of our relationships

with our allies around the world. I can tell you, this year I attended the NATO meeting in Vilnius and I was at the OSCE meeting in France, our parliamentarians from those nations are very,

very upset. They basically feel that the United States is just stiffarming this whole thing and walking away from it. It is bad, bad

public relations.

If we are not happy with the situation, then we have an obligation to come back and say here is what our problems are and can

we work on some other alternatives. But we do know there is a

problem and we are willing to participate in working with you to

do something practical about it even though we may not agree with

some of the scientists that say we are the main cause of this global

warming problem. But it is out there and we ought to be doing

something constructive about it. And I would hope that is going to

be your attitude and the attitude of the Administration.

Ms. AYRES. Senator, the Agency and the Administration look forward to working with you toward a solution that helps solve the

problem and is an equitable solution to our nation’s economy,

which is basically two of the underpinning principles that are being

looked at and being included in any plan the Administration may

come forward with at the cabinet level at this time.

Senator VOINOVICH. Thank you.

Senator JEFFORDS. Some years ago, I started what is now referred to as the Alliance to Save Energy with industries in this

country to try to work together to find ways to conserve energy.

Three years ago, I was in China and met some of the experts in

this country who were over looking at China’s coal consumption,

and they came back with a staggering understanding that with efficiency improvements they could almost reduce the consumption of

coal up to 60 percent between the user and the provider.

It seems to me this nation has an opportunity to try and be a

leader in how to help other nations to do the efficient things that

we have learned to do here, because if you look at China, as you

know, and India, and other areas, inefficiencies are very serious. I

would hope that we would take a leadership role in trying to help

those nations find ways to be more efficient, which would reduce

the problems certainly by magnitudes of great numbers if those experts are correct.

So I would hope you would take an interest in seeing what we

could do to try to work in that area.

Ms. AYRES. Thank you, Senator. What you have just mentioned

is really at the very heart of what the International Office at EPA

is all about, the phrase used is ‘‘capacity building.’’ Through these

capacity building projects, which are truly around the world, with

lesser developed countries or other countries, often the same countries who are grappling with the most devastating environmental

problem of all, poverty, which is one of the reasons why these inefficiencies exist, the sharing of technologies, the sharing of expertise

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from our country and oftentimes from the professionals at EPA to

these other countries in helping them learn new ways of doing

things that will make them simply more efficient and thus, in

many instances, less polluting.

Senator JEFFORDS. Thank you. I look forward to working with

you.

Ms. AYRES. And I look forward to working with you. Thank you.

Senator JEFFORDS. Mr. Schregardus?

STATEMENT OF DONALD R. SCHREGARDUS, NOMINATED TO

BE ASSISTANT ADMINISTRATOR FOR THE OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE, ENVIRONMENTAL PROTECTION AGENCY

Mr. SCHREGARDUS. Mr. Chairman, Senator Voinovich, and distinguished members of the committee, it is an honor and a pleasure

to appear before you this morning as the nominee to be EPA’s Assistant Administrator for the Office of Enforcement and Compliance Assurance. I am honored and excited that President Bush and

Governor Whitman have invited me to join the Administration to

improve public health and the environment in this great nation. I

am especially pleased to be joined here today by my daughter

Sarah who flew in from Ohio this morning.

Compliance and enforcement have always been fundamental

components of our national environmental program. Governor

Whitman has expressed her commitment to a strong Federal enforcement program, and so do I. Compliance and enforcement has

been a cornerstone of EPA’s programs to improve public health and

the environment from its beginning. The American people trust

and rely on EPA to protect the land, air, and water where they

live. I understand this important responsibility and, if confirmed,

will do everything in my power to meet this responsibility.

To this end, I believe my 25 years of experience in Federal and

State environmental regulatory agencies would provide a valuable

benefit to the Administration. I started my career at EPA at a field

office conducting environmental studies and investigations. While

developing permits and enforcement cases I learned first-hand the

importance of good science in environmental decisionmaking. As

chief of the Water Division Compliance Section in Region 5, I managed one of the most successful efforts to bring municipalities into

compliance with the Clean Water Act. We set records for the most

penalties and civil actions as compared to previous periods in the

Region. As a result, water quality improved across the region.

As director of Ohio EPA, I developed or expanded programs in

pollution prevention, technical assistance and environmental education. I improved the scientific basis for environmental decisionmaking. We implemented a program to evaluate the quality of all

6,000 public water supplies in Ohio, we placed inspectors at each

of Ohio’s commercial hazardous waste disposal facilities, and we

tripled the size of Ohio’s landfill inspection program. With the support of then-Governor Voinovich, we added nearly 400 new people

to the Agency, half of which were placed in the Ohio EPA’s district

offices where they conducted inspections and monitoring. We developed new programs to clean up Brownfields, manage and cleanup

tire dumps, ensure the safety of underground injection wells.

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Senator Jeffords, I was pleased to hear you are interested in energy conservation. Ohio was one of the first midwest States to join

EPA as an active participant in their Green Light Program to help

reduce energy in buildings across the State.

Throughout my service as director, I recognized the importance

of public involvement. I expanded public involvement in the rulemaking and program development processes, and started and supported 25 community-based groups to assist the Agency in studying

and improving water quality.

However, the real measure of success in these programs is not

in the outputs but in the outcomes. During my tenure as director

of Ohio EPA, one of the top manufacturing and energy producing

States in the country, air emissions of sulfur dioxide, particulate,

carbon monoxide, and lead were reduced substantially, and for the

first time all 88 counties in Ohio met the national air quality

standards. We had a 50 percent reduction in toxic releases to the

environment from 1988 levels, and we realized a 50 percent increase in stream miles fully achieving fishable/swimmable Clean

Water Act goals. I am proud of these accomplishments, but more

still needs to be done. I look forward to bringing the knowledge

gained from these successes to apply to the Office of Enforcement

and Compliance Assurance.

One area I believe is especially important for the compliance and

enforcement program is to focus on coordination with the other offices in the Agency to ensure the Administration has a clear, consistent national approach to environmental protection. A clear unified approach to environmental protection helps ensure there are

no surprises and no excuses to environmental compliance. Finally,

I will seek the involvement of the States and the public as we improve and develop new programs.

From my career in enforcement, I have learned an effective compliance and enforcement program involves far more than just enforcement orders and lawsuits. Compliance starts with a clear understanding of regulatory requirements and timeframes in which

they must be met. Education and compliance assistance are needed

to get the word out clearly and uniformly across the country. Incentives and voluntary programs can assist communities and businesses to achieve environmental controls in a cost effective manner.

Plans, goals, tracking, and accountability are essential to follow

progress. States, where delegated the national programs, must take

the lead. But if requirements are not met, then the full range of

administrative, civil, and criminal enforcement actions must be

considered. If you should honor me by your confirmation, I will

work to improve each one of these elements and thereby improve

public health and the environment in a cost effective manner.

I look forward to working with you, Governor Whitman, and

President Bush to make the environment better for all Americans.

Thank you for the opportunity to speak with you this morning.

Senator JEFFORDS. Thank you. You are going to have a tough job.

Mr. SCHREGARDUS. Yes, sir.

Senator JEFFORDS. I am concerned when I look at the budget

with respect to your role. The Administration’s budget for 2002

cuts 270 EPA enforcement personnel from the office that you will

be heading while providing $25 million for grants to States for enVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00144 Fmt 6601 Sfmt 6601 78075 SENENV1 PsN: SENENV1
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forcement programs. I would like you to tell the committee what

impact the personnel cuts will have on EPA’s ability to enforce our

environmental laws, and what the State Enforcement Grants Program will be designed to do.

Mr. SCHREGARDUS. Mr. Chairman, if confirmed by the Senate, I

will have the responsibility to support the President and the President’s budget, and I am committed to do that. I recognize the

issues that are being considered by the Congress at this time on

the issue of the President’s budget related to moving essentially $25 million from the Federal enforcement program to the State enforcement program. You have accurately described the Office of Enforcement and Compliance Assurance is scheduled to be reduced by

a total of 270 work year, 205 of those will be applied to the Agency

reduction to achieve 17,500 FTEs and 65 FTEs will be moved to

other programs.

With respect to this, Senator, I have worked at both the State

and national level and I recognize the importance and the leadership role that the States have in enforcing the national laws. I believe the $25 million proposed to be added to the State Grants Program can be an effective, important tool in improving State enforcement programs. I also recognize that a reduction of $25 million from the Federal

side will have a real impact on the enforcement program. But I certainly believe, and I believe strongly, that the resources that remain in the Office of Enforcement and Compliance Assurance are

substantial and we will carry out a vigorous enforcement program

based on meeting the priorities of the office.

And so, yes, I do believe that we can carry out a vigorous program. We will take actions against facilities that have multiple facilities in multiple States. We will take action when there is crossboundary issues. We will take actions where the States have not

been delegated the program. And we certainly will take actions

where the States are either unwilling or unable to take actions

within their States. But I also believe, as well as Governor Whitman, that the $25 million will substantially help the States carry

out their very important role in the environmental compliance and

enforcement. They currently take over 90 percent of the actions,

both inspections and enforcement, and we think through setting up

a grants program that requires accountability, a focus on environmental priorities, we will see a measured improvement in enforcement by the States.

Senator JEFFORDS. Well thank you. That is somewhat reassuring,

but I want to let you know that I intend to be watching very carefully over what the impact is. I have full faith in the Administrator. I believe she is a wonderful woman and I have respected

what she has done. But I want to make sure she has all those tools

necessary and available to her that she must have in order to do

the job. So I am going to be watching like a hawk soaring above

there to make sure that she has the ability and no hinderance

placed in her way to do the job she is supposed to do.

Well thank you all.

I turn now to Senator Voinovich for any questions he may have.

Senator VOINOVICH. I just was handed a note that said that Senator Bond said this morning the Senate Appropriations will not be

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cutting EPA’s enforcement budget. So, one of the things that the

Administration proposes and the Congress disposes.

[Laughter.]

Senator JEFFORDS. Of course, we are right.

[Laughter.]

Senator JEFFORDS. Thank you all.

Senator VOINOVICH. Mr. Chairman, I would like to just say one

thing. I would like to thank all of you for responding to the nomination of the Administration to take on these responsibilities. It is

a major sacrifice. I know it is disruptive to your families. They are

making a sacrifice right now while you are in this limbo period.

Hopefully, you will all be appointed, and they will continue to

make sacrifices as you serve our country. I just want to thank you

so much for your willingness to step forward and to serve our nation. We need outstanding people in our Federal Government, and

your willingness to serve is very much appreciated by your country.

Senator Jeffords. I have two obligatory questions that I have to ask

you. If I do not ask them, you cannot have your job, so I think I

better ask them.

Are you willing, and this is for all of you, at the request of any

duly constituted committee of the Congress to appear in front of it

as a witness? All nod your heads aye, I hope.

[Witnesses answered in the affirmative.]

Senator JEFFORDS. OK. Fine.

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 in your position?

[Witnesses answered in the negative.]

Senator JEFFORDS. Everybody is shaking their head no.

Thank you. Now you are on your way. We have to have a vote

on confirmation, but you are ready to go before that vote. So thank

you very much for appearing before us today. We look forward to

working with you.

[Whereupon, at 11:09 a.m., the committee adjourned, to reconvene at the call of the Chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF DAVID SAMPSON, NOMINEE TO BE ASSISTANT SECRETARY OF

COMMERCE FOR ECONOMIC DEVELOPMENT

Mr. Chairman, Senator Smith and members of the committee, Thank you for the

opportunity to appear before you this morning. I am grateful to Senator Kay Bailey

Hutchison and Congressman Martin Frost for their kind introductions, and to you

for the warm welcome you have given me and my family. Speaking of my family,

I would like to take this opportunity to introduce my wife, Karen, and my twin sons,

John David and Matthew Nicholas.

I also wish to thank the President for nominating me to this position, and express

my gratitude to committee members and their staffs for the many courtesies extended to me during my visits with you over the last month. In addition, I extend

my gratitude to Secretary of Commerce Don Evans and his staff and to the staff

at EDA for the support and assistance they have given me since my arrival here

in Washington.

I was born and raised in a rural farm community in southern Indiana, so I was

exposed firsthand at a young age to the economic challenges that confront many of

our nation’s communities even today. I witnessed the economic dislocation caused

by significant swings in farm commodity prices, drought and flood, the relocation

of manufacturing facilities outside of the Midwest, and the loss of population due

to lack of economic opportunity.

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I am passionate about economic development. I believe economic development is

of critical importance because it supports two important public policy objectives: creating wealth and minimizing poverty. The creation of wealth enables people to be

economically self-sufficient and provides the resources needed for building safe,

healthy, convenient and attractive communities in which people want to live and

raise their families. Minimizing poverty is important because poverty is not only dehumanizing, it is extremely costly in terms of underutilized human and capital resources, welfare transfer payments, soaring public health care costs, crime, and declining neighborhoods that lose their value. Thus, the public sector has a legitimate

interest in supporting those efforts to bring economic opportunity to all segments

of our society. As President Bush said last week in a speech before the World Bank,

‘‘A world where some live in comfort and plenty, while half of the human race lives

on less than $2 a day is neither just, nor stable.’’ But while I am passionate about economic development, I also realize it is not

the public sector that creates wealth and minimizes poverty, but the private sector.

Therefore, the public sector role is to foster a positive environment where the private sector will risk capital investment to produce goods and services and increase

productivity, thereby providing the high-skill/high-wage jobs that offer opportunity

for all Americans.

I have come to understand the nature and importance of economic development

over the past decade, during which I was actively involved in addressing economic

development issues at the local level. First as a staff member and later as President

and CEO of the Arlington, Texas, Chamber of Commerce, I was directly involved

in local economic development efforts because the Chamber functions as the city of

Arlington’s economic development department under a public-private partnership

agreement that has brought significant growth and opportunity to the City.

Arlington, Texas, is an interesting blend of old and new economy with a significant amount of tourism-based economic activity mixed in for good measure. In addition, the City has an economically diverse work force and population, and faces most

of the economic development challenges confronting the nation’s cities. During my

tenure as President and CEO, the Chamber’s economic development efforts on be- half of the city of Arlington resulted in the investment of $2.4 billion in private capital and the creation or retention of 28,465 jobs. This level of achievement was possible because of an effective public-private partnership, a bi-partisan working relationship with local, State and national officials, the outstanding team of professionals we had working on economic development in Arlington, and the strong performance-based management system the Chamber and City established to guide the

economic development program.

I have also been involved in a number of economic development activities at the

State level in Texas at the appointment of then Governor, now President, Bush. I

served as the Vice Chairman of the Texas Strategic Economic Development Planning Commission when we developed a 10-year strategic economic development plan

for Texas. That effort was charged by then Governor Bush to ensure the plan developed would help all regions of Texas achieve their highest economic potential and

share in the economic prosperity of the State. I subsequently chaired the Texas

Council on Workforce and Economic Competitiveness where we worked to implement the State’s plan to integrate its economic development and work force development efforts. This experience provided me a greater understanding of the need to

integrate economic and work force development efforts in order to support more efficient use of both sets of resources. It also provided me with an appreciation of the

potential and promise of the Workforce Investment Act and the role it can play in

bringing increased opportunity to Americans.

I believe these experiences and my prior experience with community-based organizations have prepared me to take on the duties of the position of Assistant Secretary

for Economic Development. I am committed to leading EDA to become the premier

standard bearer for economic developers across the country. I believe that EDA’s

programs provide an appropriate and critically needed service to America’s distressed communities. But, I am equally committed to the belief that the Government

is accountable for the funds it spends and the programs it carries out. I believe that

EDA must be able to demonstrate, through tangible outcomes and measures, how

it is performing and the value of its programs. And, as the premier economic development partner, EDA must set the standard for excellence with its own operations

and management.

Integration of mission, organization, budget, and performance form the basic loop

that drives success. EDA must reestablish its strategic context and focus by re-affirming the mission and vision of the Agency. We will work with a broad cross-section of experts, private and public, in the field of economic development, to analyze

trends and developments. We will work with our partners to develop a coherent and

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comprehensive vision and strategy to meet the challenges of the 21st century, and

we will be poised to address economic development issues as they begin to emerge.

EDA will be pro-active in addressing economic development in the future, not reactive.

The strategic vision and mission of EDA will, in turn, dictate the organization

necessary to achieve that vision. EDA commissioned a work force analysis study at

the end of fiscal year 2000 so the Agency could plan strategically for long range

human resource requirements, to effectively align the work force with organization

goals and objectives, and to provide a foundation for focused cross-organizational

placement, training, retraining and recruitment.

The study identified key work functions and activities, analyzed gaps between

workload and work force, detailed managerial, technical and core competencies, and

specified the competencies in which deficiencies exist. The study also found that 60

percent of EDA’s work force is eligible for retirement. Three key recommendations

were made. First, analyze work processes in greater detail, from a qualitative and

redundancy perspective, to streamline for greater efficiency and effectiveness. Second, reestablish the strategic context and focus for EDA by re-affirming the mission

and vision of the Agency. Third, implement a competency-based Human Resource

System to tie employees’ competency and behaviors to the mission and strategic

goals. Such a competency model incorporates succession planning, recruitment, selection and training and development.

If I am fortunate enough to be confirmed for the position of Assistant Secretary,

EDA will aggressively move forward to implement the recommendations of the

study. Let me assure you, however, that the findings of the study will not be used

to support requests for additional staff resources, but rather will help us make optimum use of available staff within current personnel ceilings. We will assess EDA

structure to ensure that we flatten management structures so there are fewer layers

between customers and senior policymakers. We will define the role of headquarters

and align and deploy resources to best serve the needs of communities. We will

streamline our processes, align competencies with activities, and explore new opportunities for technological solutions.

After vision and organization comes budget and performance. EDA will derive its

budget requests from the outcomes it hopes to achieve, and I assure you that if we

can’t demonstrate the value of an EDA program’s investments, we will not seek

funding for that program. I am convinced of the importance of performance-based

management systems and that program budget requests should be supported by

documented results. Whatever activities we are going to undertake with public dollars must be able to demonstrate benefit for the funds expended through measurable, quantifiable performance measures. EDA is assessing its performance measures, and is focusing resources to develop and define tangible outcomes and performance measures for our capacity building programs, planning and technical assistance. It is fundamental that solid, substantive planning is a prerequisite for sustainable economic development, but it is incumbent upon EDA to tangibly document

specific outcomes to be achieved, and then to measure our achievements.

The final recommendation from the work force analysis study addressed the need

for a competency based Human Resource System that ties employees’ competency

and performance to the Agency mission and goals and performance. A competency

based Human Resource system develops succession planning, recruiting, selection

and performance measurement around a competency model. I am a strong proponent of The Balanced Scorecard, which is a performance management approach

that assesses customer satisfaction, financial results, and internal processes in a

way that is practical and measurable and that reinforces the organization’s critical

competencies, goals and objectives.

Lastly, my view of management is that an organization functions best on the

basis of teamwork and partnerships. We can move EDA forward as long as we do

it as a team, and it would be my intention to work in a collegial manner with EDA’s

staff. Let me say that in the short time I have been serving as the Secretary’s Senior Advisor, I have been most impressed by the competence and dedication of the

EDA staff, and I look forward to joining them should I be honored by being confirmed as Assistant Secretary. The work force analysis study highlighted that, ‘‘The

commitment to facilitate economic development and provide superior customer service is pervasive throughout EDA.’’ It is important that the EDA team work in partnership with local, regional, State and Federal economic development organizations,

along with Members of Congress and their staffs, in order to maximize the benefit

derived from all our efforts. No one program, Agency, private non-profit, or governmental organization has all the resources or knowledge needed to meet the nation’s

distressed areas’ economic development needs. By working cooperatively, however,

we can make efficient use of all our resources to leverage greater private sector inVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00148 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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vestment and more businesses and jobs for those Americans who have not been full

partners in the nation’s economic growth.

In closing, I would like to thank my family for allowing me to uproot them from

Texas. I consider it a great honor having the opportunity to serve President Bush

and my country in this position. I appreciate the opportunity to appear before you

today and the courtesies you have shown me, and will be pleased to answer any

questions you may have.

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RESPONSES OF DAVID SAMPSON TO ADDITIONAL QUESTIONS FROM SENATOR BOB

SMITH

Question 1. In my State of New Hampshire, the town of Londonderry has an Ecological Industrial Park. The park’s natural gas power plant uses 4 million gallons

of treated waste water from the city of Manchester to cool the plant. This voluntary

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agreement is an excellent example of two industries joining forces to reduce waste

and improve our environment. The EDA has been very supportive of these projects

and provided a grant to assist in the development of the National Center for

EcoIndustrial Development. How do you intend to continue developing projects like

those in Londonderry?

Response. In the few weeks I have served as Senior Advisor to the Secretary, I

have learned that EDA has been one of the leaders in the implementation of the

ecoindustrial development concept in the United States. I was pleased to participate

in the ecoindustrial development briefing you hosted last week and to see EDA’s

leadership role recognized by many of the speakers. EDA staff report that the agency has been involved in ecoindustrial development projects based on the model of

the Londonderry, New Hampshire EcoPark, i.e., projects at which energy generation

is the basis for industrial exchanges in support of job creation and development in

economically distressed areas. Two examples they mention are:

• the Riverside EcoIndustrial Park and Business Incubator, located in Burlington, Vermont, where EDA provided $1,020,000 in funding for the construction

of a bioshelter greenhouse and infrastructure for capturing and using waste heat

from an electrical generating station through biomass gasification; and

• the Red Hills EcoPlex Industrial Park, located in Choctaw County, Mississippi

where EDA awarded a $1,500,000 grant for construction of infrastructure to facilitate heat exchanges between the anchor tenant (the Red Hills Power Plant: a

cleancoal lignitefueled electric generating facility) and the various industrial park

tenants.

Should I be confirmed as Assistant Secretary, EDA will continue to work in partnership with communities to fund similar projects where demand for such assistance has been identified by the communities and is consistent with the region’s economic development priorities, as articulated in the area’s Comprehensive Economic

Development Strategy (CEDS). I am convinced of the value of the ecoindustrial development approach. I also believe the agency’s support for the National Center for

EcoIndustrial Development will help disseminate information about the success and

value of these initiatives to local economic development officials throughout the

country, thereby encouraging development of more such projects.

Question 2. Further, ecoindustrial development is not only relevant to economic

development strategies but also efforts to promote resource conservation and environmental protection. As such, other Federal agencies including the Department of

Energy and the Environmental Protection agency have a role to play in the advancement of this exciting new concept. How do you intend to integrate the work of EDA

with that of these other agencies to establish a coordinated approach for the advancement of ecoindustrial development?

Response. During the time I have served as Senior Advisor to the Secretary, I

have been informed that EDA has already begun working with other Federal agencies in support of ecoindustrial development. While EDA is the lead funding source

for the National Center for EcoIndustrial Development you mentioned, the agency

was joined in that effort by both the National Oceanic and Atmospheric Administration (NOAA) here at Commerce and the Environmental Protection Agency (EPA).

EDA also invited other Federal agencies to join in support of the Center, but was

not successful in obtaining their support. The agency is currently in the process of

working with EPA to revise the existing Brownfields Memorandum of Understanding (MOU) to incorporate efforts to cooperate on ecoindustrial development initiatives, and EDA has an MOU with NOAA for cooperation on ecoindustrial development. In order to further advance interagency cooperation and coordination, if I am

confirmed as Assistant Secretary we will work with NOAA and EPA to invite other

appropriate Federal agencies to join us in moving the ecoindustrial concept ahead.

I have been informed by agency staff that EDA and the EPA also have collaborated in the past to support local communities in their efforts to redevelop

brownfield sites as ecoindustrial parks. Examples they have identified include:

• the Port of Cape Charles Sustainable Technologies Industrial Park, located in

Northampton County, Virginia where EDA awarded a $400,000 grant for the construction of infrastructure (roadways, storm sewer lines, water mains, a pumping

station, and other assorted improvements) to allow for the development of Phase 1

of the ecopark; on a former brownfield site (town dump) assessed by the EPA; and

• the Ft. Devens Army Base Reuse, located in Massachusetts, where EDA

awarded $2.1 million to the base redevelopment authority for infrastructure enhancements in support of brownfields redevelopment activities. Ft. Devens has developed a reuse plan that incorporates industrial ecology principles.

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The agency anticipates continued cooperation with EPA, NOAA and if confirmed,

I will actively seek the participation of other Federal agencies on the development

of additional ecoindustrial development projects.

STATEMENT OF ROBERT FABRICANT, NOMINEE TO BE GENERAL COUNSEL, ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman, Senator Smith, 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 as the President’s nominee to be General Counsel of the Environmental Protection Agency. I want to express to you and your staff my appreciation for the many courtesies extended to me in the preparation for this hearing. I

look forward to the opportunity, should I be confirmed, of working with all of you

and your staffs.

When Governor Whitman asked me if I would consider serving as General Counsel of the EPA, it took me but a moment to say yes. I have spent virtually my entire

professional career in the public sector, most recently as Governor Whitman’s chief

counsel in New Jersey. Prior to that, I served in several other positions in the Governor’s Counsel’s Office specializing in environmental matters. I have also served as

a deputy attorney general in New Jersey, providing advice and counsel to New Jersey’s Department of Environmental Protection. Since being admitted to the bar, the

primary focus of my career has been environmental law.

Given my professional experience in this area, the opportunity to serve the nation

at the EPA is a truly humbling thing. I am grateful to Governor Whitman, to the

President, and to you for this opportunity. Should you do me the honor of recommending my confirmation to the Senate, and should I be confirmed, I want you to

know that I will devote all of my energy and effort to doing the kind of job that

merits the confidence that has been placed in me for this very important position

at the EPA.

When Governor Whitman appeared before this committee as the President’s nominee for administrator, she spoke of the great goals to which the Bush Administration and the EPA are committed, goals that I believe the vast majority of the American people share. She spoke about making America’s air cleaner, its water purer,

and its land better protected. These are clear and simple concepts that are rarely

matched by clear and simple solutions. No one knows that better than environmental attorneys.

During the years I had the honor to serve as a member of Governor Whitman’s

administration, I had the opportunity to work on many of the most vexing environmental legal issues facing the State of New Jersey. Someone once said that New

Jersey is America writ small, and it’s true especially when it comes to environmental challenges. So I believe that my service in New Jersey has been good preparation for the job to which I have been nominated.

That being said, however, I come to this position with no illusions. I know that

the broad array of legal issues confronting the EPA are more than just complicated

legal questions. They are, at their root, questions that speak to our government’s

stewardship of the nation’s air, water, and land. Being true to our legal responsibilities requires that we be equally true to our moral responsibilities as environmental

stewards.

I have often heard Governor Whitman say that every dollar the EPA spends on

litigation is a dollar that can’t be spent cleaning up the environment. While talk

like that isn’t necessarily music to a lawyer’s ears, I do think it is an important

touchstone for a potential general counsel to keep in mind. I am a strong supporter

of the effort both the President and the Administrator are making to build new

partnerships among all environmental stakeholders and across some longstanding

traditional divides.

I believe the Office of General Counsel is well equipped to help the Administrator

build those partnerships. I have found in my years as an attorney that some of the

most constructive lawyering isn’t done in a courtroom, it’s done in a conference

room, where smart, committed lawyers bring all parties together and avoid the need

for litigation. Providing good, solid, legal advice and counsel to EPA’s senior staff

will, I hope, help my Agency colleagues do their jobs and meet their goals for America’s environmental progress.

The EPA is most fortunate to have a very dedicated, extremely capable staff of

lawyers in the Office of General Counsel. They not only work very hard, they care

very much about what they are doing. They adhere to the highest ethical standards

and embody the best of what the legal profession has to offer. They are results-oriented public servants, who not only know everything there is to know about enviVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00156 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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ronmental law, they also know the importance of keeping one’s attention on the ultimate goal and that’s environmental progress.

Mr. Chairman and members of the committee: as the committee with primary jurisdiction for writing the laws that the EPA is charged with enforcing, I know that,

should I be confirmed, I will have the opportunity to work very closely with you and

your staff. That’s an opportunity to which I eagerly look forward. But before I let

that eagerness run away with itself, I would like to pause here to again thank you

for welcoming me here today and to address any questions you may have for me.

Thank you, Mr. Chairman.

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STATEMENT OF G. TRACY MEHAN III, NOMINATED TO BE ASSISTANT ADMINISTRATOR

FOR WATER, ENVIRONMENTAL PROTECTION AGENCY

Thank you, Mr. Chairman, and members of the committee, for the privilege to address you as President Bush’s nominee for the position of Assistant Administrator

for Water at the United States Environmental Protection Agency.

I am very grateful to the President, Governor Whitman and this committee for

being considered for this tremendous responsibility to protect the waters of the

United States. I look forward to working with you all to insure that our children

continue to enjoy the fruits of America’s bounty, most especially its lakes, rivers,

wetlands and oceans.

I grew up on the Mississippi River and married a resident of the Lake Michigan

shores. My wife and children, even as we speak, are enjoying a summer’s respite

on a lake in northern Wisconsin. My parents are on their way to the coast of South

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Carolina for a well-deserved vacation. For my family, as for most American families,

water defines much of our lives, certainly the more enjoyable aspects. For many

Americans, water is even more important—it is the means by which they earn a

living, support a business, or feed themselves.

Given the importance of water in the lives and occupations of our citizens, it is

understandable that, starting in the 1970’s the nation began the work of restoring

its water quality with such great, albeit incomplete, success. The strength of our

economy in the postwar era, creating both the desire and the means of cleaning up

our waters, had a lot to do with it. But it wasn’t just the money. It was the love

of our country and its beautiful waters.

Many commentators have noted the evolving nature of the challenges to further

improvements in water quality. We need to look beyond the traditional discharge

pipe to more generalized, diffuse runoff. There is also the need to look at the entire

watershed to assess the most cost-effective means of reducing a target pollutant.

These and other challenges, such as restoring contaminated sediments and preventing air deposition of pollutants to water, will require new and creative ways of

meeting our responsibilities of stewardship.

I hope to contribute to the search for solutions to the water quality challenges of

the day, working closely with the White House, Governor Whitman and this committee to involve stakeholders from the public and private sectors, from State and

local government, and from inside and outside of government.

Working together, I believe we can identify and implement successful strategies

to maintain and restore the chemical, physical and biological integrity of our waters.

No doubt, many of these strategies will be tailored to specific problems in specific

communities. Hence, the importance of the watershed as a social and hydrological

reality. Here is where communities, neighbor to neighbor, can engage, educate and

persuade one another in a mutual quest for shared goals.

There are, of course, other problems, national in scope, where the Federal role is

a significant one. This committee has developed legislation directing the Environmental Protection Agency to work with States, tribes and other Federal agencies to

help finance water infrastructure, to set national drinking water standards, to protect wetlands, to control discharges from industries and sewage treatment plants,

and to reduce nonpoint pollution. The impact of air pollutants, such as mercury or

nitrogen, on water quality also requires national attention. This is a classic, crossmedia problem, and we will need a coordinated approach to addressing pollutants

which are a threat to both air and water.

Americans view conservation and environmental protection as important elements

of the public agenda. They look to public officials to harmonize these priorities with

social and economic objectives. This is a task of great difficulty, but one well worth

the effort.

I will strive to meet these challenges while relying on the best available science

and economic analysis with due regard for the statutory directives of the Congress.

I would be honored to work with this committee to accomplish the hard work of

protecting and restoring our nation’s water quality. Thank you for your time and

consideration.

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RESPONSES BY G. TRACY MEHAN III TO ADDITIONAL QUESTIONS FROM SENATOR

SMITH

Question 1. Water infrastructure was a priority when I was chairman and will

continue to be my priority because of the great need this country currently faces.

In the initial hearings it became clear that we are faced with a great economic need

in the area of drinking and wastewater infrastructure. How do you see the role of

the Federal Government in addressing the $1 trillion need that exists for drinking

and wastewater infrastructure over the next 20 years? What role do you see the

States, rate-payers, and the private sector playing in the goal of revitalizing our

water infrastructure?

Response. The Administrator has invited all interested parties to engage in a national dialog to address future needs for water and wastewater infrastructure. As

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a first step, we are conducting an analysis to make sure we understand the challenge facing us as clearly as possible.

I would prefer to wait until I see the results of that analysis before offering specific policy recommendations. However, as a general principle, I believe all stakeholders, including the Federal Government, will have to do their share I further believe that increased funding, by itself, is not the entire answer. We also need to consider technological and management innovations to reduce costs and to assure that

the available funding is used efficiently to meet the most important priorities.

Question 2. Do you feel the State Revolving Fund should be the source of financing for both drinking and wastewater infrastructure? What role do you see grants

playing?

Response. The Clean Water and Safe Water State Revolving Funds have been

highly successful mechanisms for financing wastewater and drinking water infrastructure. In terms of the Environmental Protection Agency (EPA), I think the State

Revolving Funds should be the vehicles for delivering infrastructure financial assistance. I would note that several other Federal agencies, for example, the Departments of Agriculture and Housing and Urban Development, also have significant

programs that provide financial assistance for infrastructure construction. I look forward to working with Congress and the Administration to delineate the right balance of grants, loans, and other funding mechanisms.

Question 3. Many of the current problems facing the water community fundamentally come down to a lack of resources. CSOs, SSOs, infrastructure, nutrient management all required huge financial commitments. One of the greatest challenges

we face is how to ensure clean, safe water with very limited budgets and without

forcing large increases on ratepayers. Therefore a certain amount of flexibility must

be worked into the system and new, more cost-effective technologies found. How can

we provide both flexibility and resources without heavily impacting small towns and

disadvantaged communities?

Response. I agree that a potential increase in user charges is a significant issue.

I think technological and management innovations to reduce costs and increase efficiencies are a necessary part of addressing future investment, as well as operation

and maintenance, needs. I also think that we should explore improvements in the

State Revolving Funds, for example, reduced or negative interest rates or principal

forgiveness, that would enable States to tailor more flexible funding packages for

small and disadvantaged communities.

Question 4. There has been a backlog of NPDES permits for quite some time and

now with the CAFO rule, Tulloch-fix rule, wetland NWP rule and others the States

and EPA will have even more permits to issue or reissue. How will you address this

problem?

Response. Eliminating the permit backlog will require intense management focus

to accomplish. This was the lesson learned in Michigan where the backlog was

eliminated. I hope to bring the same intensity to the challenge at EPA. EPA began

an aggressive effort to reduce the existing backlog of expired NPDES permits in late

1998. In 1999, the Office of Wastewater Management formed a workgroup to assess

the problem and to develop a national strategy in cooperation with its NPDES State

partners.

In addition to the national strategy, each EPA Region has developed State-specific

plans to describe how each State in the Region would meet the backlog reduction

targets. As new rules are finalized, the Agency will evaluate the adequacy of State

grant programs during its annual budget review. Overall, the Agency will continue

to rely on general permits where possible, rather than individual ones, to meet its

responsibilities under the law.

The Agency will continue to actively track and manage permit issuance efforts,

and will work closely with our State partners to implement the national and Statespecific backlog reduction strategies.

RESPONSES BY G. TRACY MEHAN III TO ADDITIONAL QUESTIONS FROM SENATOR

GRAHAM

Question 1. For many years we have focused on wastewater when we talk about

water infrastructure. I am concerned that we have not paid appropriate attention

to water supply. Last year there was a provision in the Estuaries bill which authorized an EPA pilot program for alternative water supply projects. What is the status

of developing regulations to administer this program?

Response. The Agency currently has general grant regulations that could be applied in the administration of this program should the program receive a direct apVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00184 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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propriation from Congress. Many of the types of alternative water source projects

envisioned by this program are currently eligible, at the discretion of the States,

under the Clean Water State Revolving Fund program. These include water conservation, wastewater treatment, and wastewater reclamation and reuse.

Question 2. What do you think is the role of the Federal Government, specifically

EPA, in ensuring adequate water supply to communities?

A. is EPA the best agency to deal with water supply?

B. Are other agencies better equipped to manage water supply projects?

Response. The Federal Government has provided substantial resources to ensure

adequate water supplies to communities. These resources have been provided by the

Bureau of Reclamation, the United States Army Corps of Engineers, the Rural Utility Service and in limited cases of water contamination, through EPA’s Superfund

program. I am willing to begin a dialog with you to explore what the future role

for the Federal Government is in ensuring adequate water supplies for communities.

RESPONSES BY G. TRACY MEHAN III TO ADDITIONAL QUESTIONS FROM SENATOR

VOINOVICH

Question 1. Currently, the EPA is considering publishing a proposed regulation

on sanitary sewer overflows. It is my understanding that the regulation as currently

drafted will place all municipalities in the United States in immediate noncompliance, and thus will face significant opposition and legal challenges from the regulated community, flow would you work with groups such as the Association of Metropolitan Sewerage Agencies and other associations to develop a sound and effective

proposal?

Response. Sanitary sewer overflows (SSOs) are a serious environmental concern

in some parts of the country. They can release pathogens in places where people

may be directly exposed to disease-causing microorganisms. I am interested in working with all interested parties to craft approaches that will address this problem.

The current draft of the proposed rule is consistent with, but adds more specifics

to, current requirements for control of SSOs. It resulted from numerous discussions

from 1995 to 1999 with a Federal Advisory Subcommittee that EPA formed to provide insights into potential regulatory approaches for SSOs. The Subcommittee.

which included several municipal groups in its membership, including the Association of Metropolitan Sewerage Agencies (AMSA), endorsed the above approach

unanimously.

EPA is currently considering how best to proceed with the proposed rule. EPA

staff has discussed several alternatives with AMSA and other interested parties and

I will discuss options with these stakeholders before recommending to the Administrator how best to proceed.

Question 2. Publicly owned treatment works (POTWs) should not be at risk of enforcement where reasonable water quality standards, including appropriate wet

weather standards, are attained. As you know, many POTWs, whether in a separate

or a combined sewer system, use recombination of treated and partially treated effluent to protect water quality standards cost-effectively. Full secondary treatment

in all flow conditions is not necessary. Will you provide flexibility in the recombination policy to ensure that the EPA does not require costly construction for treatment

that goes beyond reasonable water quality standards?

Response. NPDES authorities have considerable flexibility through the permitting

process to account for different peak flow scenarios that provide adequate capacity

consistent with generally accepted good engineering practices and criteria for longterm design. I believe that peak wet weather discharges from POTWs could be approved in an NPDES permit as long as the unique design considerations are clearly

outlined during permit development and where the permit ensures compliance with

the secondary treatment regulation (40 CFR Part 133) and/or any more stringent

limitations necessary to meet water quality standards.

STATEMENT OF JUDITH E. AYRES, NOMINATED TO BE ASSISTANT ADMINISTRATOR OF

THE OFFICE OF INTERNATIONAL ACTIVITIES, ENVIRONMENTAL PROTECTION AGENCY

Good Morning Mr. Chairman and members of the committee. I am honored to

have the opportunity to appear before this committee to seek your confirmation to

serve as the Environmental Protection Agency’s (EPA) Assistant Administrator for

the Office of International Activities. It is a distinct honor to have been nominated

by President George Bush and to have the support of Governor Christine Todd

Whitman. If the Senate confirms my nomination, I also look forward to working

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closely with the members of this committee, and other members of the Senate and

the House of Representatives.

I believe that the Office of International Activities in EPA is a place where a common understanding and approach can be developed to address the many global environmental problems that confront us. If confirmed, I pledge to use my experience

and talented staff to promote a spirit of environmental stewardship which reflects

Administration priorities.

Regarding my experience, with an academic background in the biological sciences

and public administration, I have worked in the environmental area, both in the

public and private sectors, since the 1970’s. My work has spanned from Washington,

DC. to Alaska and the Pacific Rim, and into Central Europe, Mexico and Central

America. The issues addressed have been numerous and varied, from the preservation of sea turtles and bird habitat to cholera outbreaks and Superfund. I have been

privileged to work both at the U.S. Department of Interior and the Environmental

Protection Agency. As Regional Administrator for EPA Region IX (1983–88), I managed a staff of some 950 career civil servants and a budget of $350 million, heading

an office that was responsible for regulating air and water pollution and hazardous

waste in Arizona, California, Hawaii, Nevada, Native American Tribes under U.S.

law, and the American Protectorates in the Pacific. The Regional Administrator’s office also managed international programs with Mexico.

Today, in seeking the committee’s confirmation, I offer as qualifications my academic background, my public and private sector environmental experience, and my

record in both venues as a proven and fair manager committed to doing the public’s

business in a public way in pursuit of the Administration’s environmental priorities.

Environmental protection and gain are at the heart of EPA’s major program

areas. Each program carries an essential international dimension: addressing air

pollution, water pollution, solid and hazardous waste, toxic chemicals, emergency response and pesticides. The international dimension is important because we know

that what goes on in backyards half-way around the world may also end up in our

own. For example, transboundary air pollution emanating from Asia can affect air

quality on our western shores;

• protection of the Rio Grande and the Great Lakes requires cooperation with

Mexico and Canada;

• disposal of hazardous waste is governed by our agreements with industrialized

countries around the world;

• the new treaty on Persistent Organic Pollutants (POPs), which Governor Whitman recently signed in Stockholm, addresses health and environmental problems of

pesticides, industrial chemicals and industrial by-products;

• imported food consumed by children and other vulnerable populations can be

contaminated by pesticides banned in the United States for health reasons but are

still in use in other food-producing countries; and

• international trade and investment rules and environmental rules will require

careful attention to assure that they are mutually supportive.

In short, it is increasingly difficult to protect human health and the environment

in the United States without simultaneously engaging with other countries to do the

same.

As a nation, we have learned that solving global environmental problems related

to the atmosphere, the oceans, and the earth’s biological wealth requires concentrated international efforts. For the International Office at EPA, environmental

gain is sought in the international arena outside our country’s boundaries through

the Agency’s collaboration with the Congress, other Federal agencies, scientists, the

financial and business communities, NGO’s, and philanthropic leaders.

I would also offer comments on the people of the Office of International Activities.

This is an exceptionally talented, dedicated and professional group of public servants who seek a well-managed office with challenging and interesting work, the resources to get it done, and a work environment that is fair and equitable. President

Bush, Governor Whitman, and I commit both to the committee and to the Office of

International Activities that going forward, the office will be well-managed, all managers and employees will be held accountable, the work will be challenging, and the

work environment will be fair and equitable.

In closing, I have chosen to seek confirmation and re-enter public service because

I believe public service to be the noblest of professions and I believe protection of

the environment, in all its many dimensions, to be the most vital of endeavors.

Thank you. I shall be pleased to answer any questions you may have.

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STATEMENT OF DONALD R. SCHREGARDUS, NOMINEE FOR ASSISTANT ADMINISTRATOR

FOR ENFORCEMENT AND COMPLIANCE ASSURANCE, ENVIRONMENTAL PROTECTION

AGENCY

Mr. Chairman, and distinguished members of this committee; it is an honor and

pleasure to appear before you this morning as the nominee to be EPA’s Assistant

Administrator for the Office of Enforcement and Compliance Assurance. I am honored and excited that President Bush and Governor Whitman have invited me to

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join the Administration to improve public health and the environment in this great

nation. I am especially pleased to be joined today by my daughter Sarah.

Compliance and enforcement have, and always will be, fundamental components

of our national environmental program. Governor Whitman has expressed her commitment to a strong Federal enforcement program and so do I. Compliance and enforcement has been a cornerstone of EPA programs to improve public health and

the environment from its beginning. The American people trust and rely on EPA

to protect the land, air, and water where they live. I understand this important responsibility and if confirmed will do everything in my power to meet this responsibility.

To this end, I believe my 25 years of experience in Federal and State environmental regulatory agencies would prove a valuable benefit to the Administration.

I started my career at EPA at a field office conducting environmental studies and

investigations. While developing permits and enforcement cases I learned first hand

the importance of good science in environmental decisionmaking. As Chief of the

Water Division Compliance Section in EPA Region 5, I managed one of the most

successful efforts to bring municipalities into compliance with the Clean Water Act.

We set records for the most penalties and civil actions as compared to previous periods at the Region. As a result, water quality improved across the Region. The keys

to this success were a clear, consistent, well publicized goal; accurate tracking of the

universe of facilities; and close planning and cooperation with States and the Department of Justice.

As Director of Ohio EPA, I developed or expanded programs in pollution prevention, technical assistance and environmental education. I improved the scientific

basis for environmental decisionmaking by establishing a program to evaluate the

safety of sport-caught fish, implementing a program to evaluate the quality of all

6000 public water supplies in Ohio, placing inspectors at each of Ohio’s commercial

hazardous waste disposal facilities, tripling the size of Ohio’s landfill inspection program and developing new protocols for monitoring the quality of wetlands. With the

support of then-Governor Voinovich, we added nearly 400 new people to the Agency,

half of which were placed in Ohio EPA’s district offices where they conduct inspections and monitoring. We developed new programs to clean up Brownfields, manage

and cleanup tire dumps, and ensure the safety of underground injection wells. On

the management side, I implemented a quality management program throughout

the Agency which improved processes, performance and customer satisfaction. The

program received unanimous endorsement by a public advisory group established by

the general assembly. Throughout my service as Director I recognized the importance of public involvement. I expanded public involvement in the rulemaking and

program development processes and started or supported 25 community based

groups to assist the Agency in studying and improving water quality.

The real measure of success of these programs is not in the outputs but in the

outcomes. During my tenure as Director, Ohio, one of the top manufacturing and

energy producing States in the country, for the first time met all national air quality

standards, saw a 50 percent reduction in toxic releases to the environment and realized a 50 percent increase in stream miles fully achieving fishable/swimmable Clean

Water Act goals. I am proud of these accomplishments, but more still needs to be

done. I look forward to bringing the knowledge gained from these successes to apply

to the Office of Enforcement and Compliance Assurance.

One area I believe is especially important for the compliance and enforcement program to focus is on the coordination with the other offices in the Agency to ensure

the Administration has a clear, consistent national approach to environmental protection. A clear unified approach to environmental protection helps ensure there are

no surprises and no excuses to environmental compliance. Finally, I will actively

seek the involvement of the States and the public as we improve and develop new

programs.

From my experience, an effective compliance and enforcement program involves

far more than just enforcement orders and lawsuits. Compliance starts with a clear

understanding of regulatory requirements and the timeframes in which they must

be met. Education and compliance assistance is needed to get the word out clearly

and uniformly across the country. Incentives and voluntary programs can assist

communities and businesses to achieve environmental goals in a cost effective manner. Plans, goals, tracking and accountability are essential to follow progress.

States, where delegated the national program, must take the lead. But if requirements are not met, than the full range of administrative, civil, and criminal enforcement actions must be considered. If you should honor me by your confirmation, I

will work to improve each of these elements and thereby improve public health and

the environment in a cost effective manner.

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I look forward to working with you, Governor Whitman and President Bush to

make the environment better for all Americans. Thank you for the opportunity to

appear before you today. I will be happy to answer any questions.

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RESPONSES OF DONALD R. SCHREGARDUS TO ADDITIONAL QUESTIONS FROM SENATOR

BOXER

Question 1. U.S. EPA was petitioned in 1997 to withdraw Ohio’s authority to administer the Clean Air Act, the Resource Conservation and Recovery Act and the

Clean Water Act. I understand the matter may be decided later this year. This petition raises questions about the past administration of the Ohio Environmental Protection Agency (OEPA) program.

Will you ensure if confirmed as Assistant Administrator for Enforcement that the

environmental laws are fully enforced, even if you disagree with them or believe

they should be changed?

Response. Yes, I will vigorously enforce all Federal laws and regulations.

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Question 2. What specific steps will you take to assure Federal environmental

laws are properly enforced throughout the United States?

Response. To ensure Federal laws are properly and consistently enforced throughout the country, I will follow the steps discussed in my testimony. Basically, I will

ensure that OECA helps implement all of the following:

• Assist the regulated community, States, Tribes and EPA Regional offices as

necessary, to clearly define national priorities and requirements through development and issuance of guidance, permits, training and technical assistance; • Develop, implement and track compliance monitoring programs, including selfmonitoring and reporting; EPA and State inspections; and compliance followup and

investigation; • Provide compliance assistance and incentives to encourage compliance with

regulatory programs, especially for small communities and businesses. This includes

training, speeches, guidance material, financial assistance, and individual assistance; • Ensure consistent application of Federal laws where States have been authorized to administer and enforce the Federal program. This role will include regular

tracking and evaluation of State programs, along with technical assistance, training

and financial support; • Make regular visits to the Regional Offices to evaluate performance and resolve issues. Develop guidance to assist new programs or address critical issues;

• Initiate Federal enforcement actions whenever necessary to support national

priorities, interstate or multi-State compliance problems, or where States have

failed to take timely and appropriate enforcement action.

Question 3. As you know, there is a Georgia Pacific Company plant (GP) located

in the south side of Columbus, Ohio. This plant has bad a history of problems-most

notably that it has exploded twice-first in 1984 (before you assumed the directorship

at OEPA) and again in 1997 (during your tenure as director). In between these two

explosions, the plant released tons of chemicals in spills and other un-permitted releases in numerous major incidents.

Please explain the circumstances surrounding chemical spills and other

unpermitted chemical releases from the GP plant and indicate when and how the

situation was rectified by OEPA. If the situation was not rectified, please explain

why OEPA did not rectify the situation.

Response. See below.

Question 4. Were the people of the south side of Columbus properly notified regarding these incidents at GP. If not, was OEPA aware of this deficiency and was

the situation rectified? lithe situation was rectified, please describe when and how.

In particular, what specific stops did OEPA take to ensure that the community was

informed of what steps OEPA would take to ensure that GP would operate safely?

Responses to Questions 3 and 4. At OEPA these types of activities are typically

handled at the Division level. For example, spills are routinely handled by the Division of Emergency and Remedial Response (DERR), and unpermitted air releases

would be monitored by the Air Office, and would be reported in the Toxics Release

inventory (TRI). While as Director I was not involved on a daily basis with the facility, my understanding of the facts regarding the issues you raised are as follows:

• In May 1991 (I was Director of Ohio EPA at this time), Georgia Pacific was

under orders from Ohio EPA to clean up a pipe line spill which had occurred in

1990 including pumping and treating groundwater to drinking water standards. Another spill occurred in August 1991 which required continuation of the pump and

treat system. The treatment and cleanup ended in December 1991 and a letter stating the company fulfilled its terms of the 1990 consent order was sent to the company in February 1992. OEPA subsequently tested 5 nearby residential wells in

March 1992 and verified all wells were below drinking water standards. The results

of all samples were sent to the residents and the company in July 1992.

• In December 1994, OEPA issued an Administrative Order to Georgia Pacific

to perform a complete a remedial investigation/feasibility study of the Columbus

Plant, based upon 8 known spills at the facility between 1976 and 1991. OEPA

issued a press release at that time that summarized the site’s operating history and

the terms of the orders. Interim results of the site investigation were sent from

OEPA in March 1997 to residents explaining the study and groundwater data collected to date. The second phase of the site assessment was temporarily interrupted

in September 1997 when the second explosion occurred at the plant.

• Regarding air emissions and odors, which were the major complaint received

by Ohio EPA from the neighbors, Georgia Pacific had unpermitted releases in March

1994, May 1995 and April 1996. As a result in May 1996, at the request of OEPA,

the Ohio Attorney General entered into a consent agreement with Georgia. Pacific

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that required them to test and upgrade their air pollution control equipment and

leak detection systems. Georgia Pacific was fined $86,250, of which up to $66,250

could be suspended for quick installation and testing of the pollution control equipment Ohio EPA explained the settlement and the status of the pollution control improvements at the site at an October 1996 meeting of the Marion Franklin Civil Association. • With respect to the September 1997 explosion of the reactor at the GP plant,

OEPA attended several public meetings on the matter, and regularly provided information to the public, through monthly meetings, on the explosion, the cleanup, and

the company’s regulatory responsibilities for restarting the facility. OEPA held a

public hearing on the permits-to-operate for the repaired kettles; public hearings

were not typical, but because of the level of community interest, we felt they were

appropriate in this instance. Also, based upon the recommendation of my staff, I required GP to apply for a new permit for the rebuilding of the reactor that was destroyed in the explosion. There was significant public interest in the facility at the

time, and the permit application process provides for additional public involvement

opportunities and a public hearing. When I left OEPA, GP had not yet submitted

a permit application to rebuild the damaged unit.

Question 5. Last October, a Federal Labor Department administrative law judge

that found that officials from the OBPA had ‘‘unlawfully retaliated’’ against an

OEPA employee, Paul Jayko, who was involved in the investigation of a high incidence of leukemia in Marion, OH.

In his decision, Judge Thomas Phalen, Jr. found that OEPA had limited the investigation into whether several contaminated sites in the community could be the

cause of the health problems, and retaliated against Mr. Jayko by coercing and restraining him in the course of his conducting an environmental investigation protected under the ‘‘whistleblower’’ portions of seven Federal environmental laws.

Please fully describe your involvement in any decisions to limit the scope of the

OEPA’s investigation into the potential environmental causes of the health concerns

in Marion.

Response. I had no direct involvement and limited indirect involvement in decisions to address the scope of the Marion investigation. Governor Voinovich placed

the Ohio Department of Health in charge of a multi-agency task force to investigate

the causes of higher leukemia rates among students graduating from Marion High

School. Based on the recommendations of the District Officer Chief Ed Hannett,

Paul Steers, Assistant Chief of the OEPA Northwest District Office, was placed in

charge of Ohio EPA’s team of scientists and investigators who worked with the Department of Health. Decisions on the scope and steps of the investigation were discussed and made at regular joint agency team meetings. The Department of Health

made the recommendation and the team concurred with the decision to focus the

investigation on chemicals suspected of causing leukemia (i.e. radiation and various

organic chemicals).

On one occasion, before a public meeting where potential pathways of exposure

were to be discussed, I directed Ohio EPA’s field team to collect drinking water samples at the school and in the community, and have them analyzed on a priority basis

for possible contamination. The results, which showed no chemical contamination of

the drinking water, were given to the public.

Question 6. Please fully describe your involvement in the decisions to discipline

Paul Jayko and remove him from his position as coordinator for the Marion site.

Response. Upon learning of allegations that Mr. Jayko consumed alcoholic drinks

while on duty for the State and had improperly charged the State for food and alcohol, I instructed the, employee’s manager to follow State personnel practices, investigate the incident and make recommendations based on the facts.

An incident report was prepared by Jeff Steers, OEPA Assistant District Chief,

and submitted to OBPA’s Human Resources Office. The Director of Personnel investigated the incident and held a predisciplinary hearing with Mr. Jayko. Immediately

after the hearing, Mr. Jayko announced to the newspapers that he was a whistleblower. Human Resources Office Chief, Bill Kirk, subsequently submitted a recommendation to me for disciplinary action against Mr. Jayko, based on his behavior

pertaining to the purchase and consumption of alcohol while on duty for the State,

I signed and approved the recommendation after obtaining continuation from

OEPA’s legal office that the recommendation was consistent with disciplinary responses for similar incidents and that whistle blower standards did not apply.

Question 7. Do you agree with the whistleblower protection provision of Federal

environmental laws?

Response. I agree with the Federal whistle blower protection provisions.

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RESPONSES OF DONALD R. SCHREGARDUS TO ADDITIONAL QUESTIONS FROM SENATOR

CHAFEE

Question 1a. Congress added the Innocent Landowner defense to CERCLA over

14 years ago. The purpose was to remove from liability purchasers of real estate

who, among other things, at the time of the purchase did not know or have reason

to know that, the property was contaminated. It is my understanding that EPA has

rarely, if ever, officially determined that a purchaser of contaminated real estate

was not liable under CERCLA because it qualified for the Innocent Landowner defense. In addition, no commercial real estate developer has ever qualified for the Innocent Landowner defense. Do you believe that the Innocent Landowner defense can

apply to a commercial real estate developer?

Response. The innocent landowner defense can apply to a commercial real estate

developer. If a commercial real estate developer acquires contaminated property,

after having made all appropriate inquiry, then they would qualify for the defense

to liability. In fact, EPA is aware of several cases in which a commercial entity has

qualified for the defense.

Question 1b. Under section 101(35)(B) of CERCLA, a purchaser of land establishes

that he had no reason to know that there were hazardous substances on the property if, at the time of the acquisition, he made ‘‘all appropriate inquiry into the previous ownership and uses of the property, ‘‘consistent with good commercial or customary practice’’ at the time of transfer. What factors do you believe EPA should

use to determine ‘‘good commercial or customary practice’’ at the time of transfer?

Response. Under current law, EPA evaluates all facts and circumstances surrounding a person’s inquiry into the property. In 1989 EPA published guidance concerning the Innocent Landowner defense. The guidance describes the statutory factors relevant to ‘‘good commercial or customary practice,’’ for example specialized

knowledge or experience, the relationship of the purchase price to the value of the

property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination, and the ability to detect such contamination by appropriate inspection.

Question 2. Do you believe that a real estate developer who, at the time of purchase, does not know and has no reason to know of the presence of hazardous substances on the property and then unknowingly moves during construction soil that

later is found to be contaminated, is liable under CERCLA as a ‘‘generator?’’ Response. It is difficult to fully evaluate the liability of a person from a brief hypothetical example. Therefore, I am unable to draw any conclusions about a person’s liability if he or she’’ . . . unknowingly moves during construction soil that later is

found to be contaminated . . .’’ As a general matter, however, CERCLA requires a

person to exercise ‘‘due care’’ with respect to hazardous substances on their property.

RESPONSES OF DONALD R. SCHREGARDUS TO ADDITIONAL QUESTIONS FROM SENATOR

CORZINE

Question 1a. In a November 7, 1998 letter to the Columbus Dispatch, you commented extensively on the ‘‘NOx SIP call’’ that the U.S. EPA had recently finalized.

You stated in that letter that ‘‘There are several fundamental flaws in the U.S.

EPA’s plan. The science is faulty. The Federal plan is based on the notion that air

pollutants from the Midwest cause ground-level ozone to form in the Northeastern

States.’’ Do you still consider the notion that air pollutants from the Midwest cause

ground to form in the Northeastern States to be faulty science?

Response. Regarding the impacts of air pollutants from the Midwest on groundlevel ozone in Northeastern States, Ohio utilized the same models agreed to and accepted by the 26-State committee called the Ozone Transport Assessment Group.

This model showed Ohio’s emissions bad a relatively small impact on ground-level

ozone in the Northeast. I do not know of any better air-quality modeling tool.

Question 1b. In that same letter, you stated that ‘‘Ohio industrial and utility emissions contribute less than 4 percent to smog formation along the eastern seaboard.’’ Do you still believe this to be the case? If not, what do you believe the contribution

of Ohio sources to eastern seaboard smog formation to be?

Response. I have not been involved with this issue since December 1998. However, I am not aware that U.S. EPA ever directly disputed Ohio’s relative contribution to Northeast air quality.

Question 1c. You also speculated in that letter that ‘‘it appears that the U.S. EPA

intentionally set an unreachable deadline so that the Federal Government can come

in and usurp the States’ rights under the Federal Clean Air Act and enforce the

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U.S. EPA plan.’’ You further referred to the plan as ‘‘draconian,’’ and stated that

it ‘‘lacks both common sense and sound science.’’ Do you still hold these views?

Response. I still believe the time given to the States to develop a control program

was too short to adequately consider control options, develop rules, including potentially an emission-trading program and to provide adequate public involvement in

the rulemaking process.

Question 1d. Earlier this year, the Supreme Court decided in EPA’s favor on the

NOx SIP call. Not all of the States have submitted revisions for their State Implementation Plans, and the deadline is approaching. Are you committed to enforcing

the plan by ensuring that U.S. EPA prepares and implements a Federal Implementation Plan for States that fail to submit their own plans?

Response. Initially, U.S. EPA’s Office of Air and Radiation will have the lead in

preparing Federal Implementation Plans (FIPs). OECA will support the Office Of

Air and Radiation as needed in preparing FIPs. OECA monitors compliance with the

FIP and if necessary, enforces the requirements of the FIP. I am fully committed

to carry out OECA’s responsibility under the Clean Air Act.

Question 2a. U.S. EPA was petitioned in 1997 to withdraw Ohio’s authority to administer the Clean Air Act, the Resource Conservation and Recovery Act and Clean

Water Act. Region 5 has been investigating this matter and plans to conclude its

review later this year. If you were confirmed as Assistant Administrator, would you

recuse yourself from any discussions regarding this issue?

Response. I have not worked for the State of Ohio for over 2 years and I have

never had any direct involvement in this review. While there appears to be no legal

reason to recuse myself; to avoid any appearance of impropriety, if confirmed, I will

recuse myself from any discussions on this matter.

Question 2b. If the U.S. EPA were to withdraw any of these authorities, would

you move in aggressively to enforce these laws in Ohio?

Response. I would make every effort to vigorously enforce those laws in Ohio.

Question 3. During your tenure as director of Ohio EPA, you moved staff from enforcement to the State’s Voluntary Action Program for brownfields. If confirmed as

Assistant Administrator, would you seek to make similar changes at OECA (i.e.,

moving staff from enforcement to compliance assurance)?

Response. I have not yet reviewed and evaluated the resources within OECA.

Based on a recent GAO report, however, one of my early priorities will be to evaluate resource allocations based upon national priorities and regional needs. I will

seek to make the best use of public funds. At this time, I have no plan to move resources from Superfund enforcement to brownfields.

Question 4a. When you testified before the U.S. House of Representatives on February 14, 1997, you stated that Superfund should be changed to ‘‘eliminate the duplicative oversight by both the Federal and State governments’’ and that ‘‘Superfund’s efficiency suffers from the current overlapping statutory roles for the Federal

and State governments.’’ With respect to the so-called ‘‘finality’’ issue at non-Superfund sites, you further stated that ‘‘we would need to be satisfied that the Federal

Government would not be dictating the administrative process States choose to

achieve protective cleanups.’’ In light of these statements, what are your views of

S. 350, the Brownfields Revitalization and Environmental Restoration Act of 2001,

which has been endorsed by Administrator Whitman?

Response. I support S. 350, and share Governor Whitman’s desire and the President’s desire to see brownfields legislation enacted this year. With respect to the

process that States use to ensure protective cleanups, S. 350 would allow the States

the flexibility to use their own procedures for cleaning up brownfields sites, provided

the State program is designed to protect public health and the environment.

Question 4b. Notwithstanding the above-referenced statements from your 1997

House testimony, do you commit to using Federal authorities at brownfields sites

under the conditions outlined in S. 350 if you are confirmed and S. 350 becomes

law?

Response. If I am confirmed, I commit to fully enforce all environmental laws, including S. 350 if enacted. As for the Federal authorities reserved in S. 350, I commit

to using them in all appropriate circumstances.

Question 5a. As the Director of the Ohio EPA, you had the U.S. EPA behind you

as an enforcement ‘‘backstop.’’ As the Assistant Administrator at OECA, you would

be in charge of this Federal backstop. How would this fundamentally different role

affect your view of the proper balance between enforcement and compliance assistance? Do you believe that State environmental agencies and the U.S. EPA should

have the same approach in this regard?

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Response. As you point out in your question, U.S. EPA has a key enforcement role

of backing up the States when they are unwilling or unable to enforce Federal law

Regarding compliance assistance, I believe OECA has an important role in developing technical materials and training to assist the States with providing compliance assistance. EPA needs to recognize and support States’ compliance assistance

programs and to provide direct assistance in States that are not delegated the Federal program. OECA focuses compliance assistance on priority sectors and environmental issues while encouraging States to provide most of the direct assistance.

Question 6. The U.S. EPA took New Source Review enforcement actions against

32 power plants last year. As Assistant Administrator, would you advocate continuing these actions? Would you advocate bringing similar actions in the future?

Response. I have had no prior involvement with this issue, however, I am aware

that EPA has been enforcing the New Source Review (NSR) requirements in a number of industry sectors, including power plants. The U.S. EPA, led by the Office of

Air and Radiation, and the U.S. Department of Justice are currently reviewing the

NSR program, therefore, it is premature to advocate any position regarding future

actions until the reviews are complete and I can assess them.

Question 7. As Director of Ohio EPA, you opposed the 1997 U.S. EPA standards

for ozone and particulate matter and supported Ohio’s efforts to overturn these

standards in court. As the head of OECA, will you aggressively enforce the implementation of these standards?

Response. f confirmed, I will vigorously enforce all Federal regulatory requirements.

Question 8. Under your leadership at Ohio EPA, the Ohio EPA Small Business

Assistance Office developed a written confidentiality policy that states: ‘‘Recognizing

the importance of helping businesses feel comfortable about using the services of the

SBAO, written confidentiality procedures for the office were finalized in 1996. The

SBAO’s internal confidentiality procedures means that information provided to the

office is not turned over to agency inspectors or enforcement staff:’’ As Assistant Administrator, would you advocate development of a similar policy at the U.S. EPA?

Response. EPA offers many resources—which small businesses may use anonymously—to assist small businesses comply with environmental laws. For example,

EPA’s existing Small Business Ombudsman (SBO) is a well-known resource in the

small business community which small businesses may access anonymously. EPA’s SBO administers a free hotline answering fast-specific compliance questions; callers

may remain anonymous at their own discretion. EPA’s Small Business Policy also

allows a small business to obtain anonymous government-sponsored compliance assistance, or confidential compliance assistance from an independent State compliance assistance provider, and still get penalty reductions or even complete waivers

if the small business discloses and corrects their violations. I would want to consult

with the Agency and review the success of these programs before advocating any

specific changes to the program.

Question 9. As director of Ohio EPA you supported Ohio’s audit privilege law,

which allows polluters to decide if certain information about pollution can be kept

from Ohio EPA; it also gives companies immunity for certain violations As Assistant

Administrator, would you advocate development of a similar law at the Federal

level?

Response. I support incentives that encourage companies to evaluate their own

compliance and take necessary actions to return to compliance if problems are identified. I also understand the Federal Government’s responsibility to ensure that delegated State programs have the necessary authorities to enforce those delegated

programs. I do not believe that Federal audit legislation is necessary. Most States

are already operating under an audit policy or law that is consistent with the minimum requirements for authorization of Federal environmental programs.

Question 10. As Assistant Administrator, how would you handle enforcement

issues that arise in States that have immunity and/or audit privilege? If a State

grants immunity to a violator, what criteria would you use to decide whether US

EPA should take an enforcement action against the violator?

Response. Under current Federal law, States must have adequate authority to enforce the requirements of any Federal program they are authorized to administer.

EPA retains its independent authority to enforce environmental protection law in

States with audit privilege and immunity laws. If a State grants immunity to a violator, I would support EPA taking into consideration whether that action is consistent with the program requirement as authorized under Federal law. I would use

the criteria that are provided in current EPA regulations, which specify’ the requirements for compliance evaluations and enforcement authority for specific programs,

for example, 40 C.F.R. 271.15–16 (RCRA). If these criteria are not met, EPA has

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the authority, and I would certainly consider, taking an. independent enforcement

action against the violator. In all instances, I would ensure that EPA continues to

work closely with any State where this issue arises, to reach a workable solution.

Question 11. Last October, U.S. Administrative Law Judge Phalen found that you

and other Ohio EPA officials had improperly removed Paul Jayko from his job after

Mr. Jayko undertook an investigation into a leukemia cancer cluster in Marion,

Ohio. In his ruling, Judge Phalen stated that OEPA issued public statements that

‘‘constitute a misrepresentation of possible threats to human health. . .’’ and that

‘‘It is clear . . . that OEPA held him {Jayko} in. particular disfavor for reasons that

may only be attributed to his vigorous prosecution of the Marion Investigation . . .

while OEPA management wanted to do something graduated and far less effective.’’

Do you agree with these findings? How would you handle similar situations as

OECA Assistant Administrator?

Response. I do not agree with the Judge’s statement that OEPA misrepresented

possible threats to human health. . I believe that OEPA’s investigation into the leukemia cluster, under the direction of the Ohio Department of Health (ODH), was

appropriately carried out. Governor Voinovich placed the Ohio Department of

Health in charge of a multi-agency task force to investigate the causes of higher leukemia rates among students graduating from Marion High School. Based on the recommendations of the District Officer Chief Ed Hannett, Paul Steers, Assistant Chief

of the OEPA Northwest District Office, was placed in charge of Ohio EPA’s tam of

scientists and investigators who worked with the Department of Health. Decisions

on the scope and steps of the investigation were discussed and made at regular joint

agency team meetings. The Department of Health made the recommendation and

the team concurred with the decision to focus the investigation on chemicals suspected of causing leukemia (i.e. radiation and various organic chemicals).

It is my understanding that last week the Ohio Department of Health concluded

their 4-year study of leukemia in Marion and did not find a scientific link between

the contamination at the school football field and the occurrence of leukemia in the

students. Direct or second-hand exposure to tobacco smoke was the most common

factor linking the leukemia victims.

Regarding the findings pertaining to Mr. Jayko, if presented with similar facts as

the OECA Assistant Administrator I would act similarly. In other words, I would

request a fact-based inquiry, consult legal counsel regarding external factors (such

as the whistleblower protection provisions), follow appropriate personnel disciplinary procedures, and weigh the recommended course of action against the particular

facts of the case, before making a final decision.

(205)

NOMINATIONS OF THE 107th CONGRESS,

FIRST SESSION

THURSDAY, SEPTEMBER 21, 2001

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 Jeffords (chairman of the

committee) presiding.

CONSIDERATION OF THE NOMINATIONS OF BRIG. GEN.

EDWIN J. ARNOLD, BRIG. GEN. CARL A. STROCK, NILS J.

DIAZ, MARY E. PETERS, MICHAEL PARKER, PATRICK

HAYES JOHNSON, CRAIG MANSON, AND MARIANNE LAMONT HORINKO

Present: Senators Jeffords, Cochran and Carper.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS,

U.S. SENATOR FROM THE STATE OF VERMONT

Senator JEFFORDS. The committee will come to order.

I want to welcome our witnesses this morning.

This is an important day as we move forward in this unusual

time. This is the first time the committee has met since the attack

on our country last week, an attack that has changed us all. In

these days ahead, we are going to have to stand together to show

the strength of this country and our people.

We are having this hearing today to get on with the work of the

committee, the Congress and the country. I want each of you to

know that your commitment to public service which is being demonstrated here today is admirable.

I would like to let everyone know how we are going to proceed

this morning and then I will recognize my fellow committee members for opening statements. We have two panels. The first panel

will come to the table, each nominee will be recognized for 5 minutes to give their statement and your full written statement will

be included in the record.

Before you begin, if you could recognize those members of your

family that are with us today, I would have appreciate it. Do you

have members of your family here with you today? Please introduce

them.

Mr. JOHNSON. My name is Pete Johnson. I’m from Mississippi.

I am the nominee for the Federal Co-Chairman of the Delta Regional Authority. I have with me my wife of 31 years, Margaret;

I have my daughter, Mary Margaret; and my youngest daughter,

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Ann Clark, Ann Clark Downing who was married 3 weeks ago.

Three weeks ago, Mary Margaret announced she would be getting

married as well, so we are really excited. There is a lot going on

in our family.

Thank you.

General ARNOLD. Mr. Chairman, I don’t have any family members here, though I know my wife, Margaret, would love to be here.

She is currently in Mississippi. My oldest daughter is home taking

care of my granddaughter who was born a month ago, so they are

not with us today.

General STROCK. I am Brigadier General Carl Strock, Director of

Military Programs of the Corps of Engineers. I do not have any

family here with me except for my brother in arms, Ed Arnold. My

wife is unpacking boxes as we have recently moved to the D.C.

area.

Mr. DIAZ. Mr. Chairman, I am by myself. My wife decided to stay

in Florida to take care of the kids and send me in harms way on

an airplane on Wednesday night so I could do my duty. I thank you

for the opportunity.

Senator JEFFORDS. I would recognize my fellow colleague, Senator Cochran.

STATEMENT OF HON. THAD COCHRAN, U.S. SENATOR FROM

THE STATE OF MISSISSIPPI

Senator COCHRAN. I am glad to be here this morning to introduce

to the committee two of my good friends who have been nominated

for important positions in the Administration. Pete Jackson is in

this first panel and the other nominee, Mike Parker, who will be

in the second panel.

Pete has been nominated to be the Federal Co-Chair of the Delta

Regional Authority. As you recall, this was an Agency established

by Congress 2 years ago when President Clinton signed the legislation. It provides an opportunity for economic development in the

lower Mississippi River Valley. The Delta region has substantial

problems of poverty and infrastructure requirements that this Authority is charged with addressing.

I am delighted to let the committee know of my high regard for

Pete Johnson. I have known him a long time, he is a close personal

friend. He is very well qualified, in my opinion, for this important

position. He will be working with the Governors of all of the States

in the region and with local development districts, and other elected officials at the local level throughout that region in order to

identify ways to move this region forward economically.

It is a big challenge but he has the background, experience, the

intellectual capacity and the determination to make this succeed

that will ensure that this Authority will be a very important contributor to the economic growth and development of that region.

Pete has served in local responsibilities at the Chamber of Commerce in his hometown of Clarksdale in Coahoma County; he has

been head of the Industrial Foundation; he was also named as

chairman of the Mississippi Marketing Council. He has served our

State in an elected capacity winning a statewide election as State

Auditor. During that period of time, he served with distinction, he

reflected credit on all of his friends who supported his election and

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he has been someone has been looked to for leadership at the State

and local level for sometime in our State. He is a lawyer. He has

had experience as a banker.

With that and his public experience, I think he is equipped to do

a wonderful job in this new and challenging office.

Let me mention also my high regard for Mike Parker who is

nominated by the President to be Assistant Secretary of the Army

for Civil Works.

Mike is a former Congressman, served 10 years in the House of

Representatives. He is also a good friend of mine and I have known

him for a long time. I think he would be a fine choice in this job.

He has the practical experience of a landowner, a farmer, a businessman who understands the practicality of government responsibilities in this area. He is a conservationist. He is someone who

has served on committees with responsibilities for oversight of the

activities of the Corps of Engineers and other Federal agencies

with whom he will be working closely in this capacity.

He is a person who has a lot of determination to succeed, to do

a good job in whatever he is asked to do. He is well educated. I

just think he would be one of the best in this job that I can think

of in my history of serving in the Congress.

Without qualification or hesitation, I recommend him highly to

the committee and hope the committee will look with favor on his

nomination and be able to report him to the Senate for confirmation at an early date.

Senator JEFFORDS. Thank you. I want to thank you all.

We will interrupt temporarily for the two votes. As soon as I get

back, we will go right at it. Sorry for this interruption.

[Recess.]

Senator JEFFORDS. We will go through the formal process now of

listening to you. After each of you has given your statement, I will

ask you two obligatory questions, then members will be recognized

to ask questions. When questions have been completed, we will call

the second panel to the table.

There may be members who are unable to be here today who

may want to submit questions to you, to answer for the record. I

would like to have all questions from the members by the end of

the day so that each of you can answer them as soon as possible

and we can move things along as expeditiously as possible.

The committee ha scheduled a business meeting for next Tuesday. If we have received your answers by then, we will consider

your nomination at that time.

Before us today, we have Brigadier General Edwin J. Arnold to

be a member and President of the Mississippi River Commission;

Nils J. Diaz to be a member of the Nuclear Regulatory Commission; Patrick Hayes Johnson to be Federal Co-Chairperson of the

Delta Regional Authority; and Brigadier General Carl A. Strock to

be a member of the Mississippi River Commission.

I will start first with General Arnold.

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STATEMENT OF BRIGADIER GENERAL EDWIN J. ARNOLD,

NOMINATED TO BE A MEMBER AND PRESIDENT OF THE MISSISSIPPI RIVER COMMISSION

General ARNOLD. I have a statement I would like to submit for

the record and I would like to make some brief remarks.

Senator JEFFORDS. Your statement will be accepted as part of the

record. Please proceed.

General ARNOLD. Let me begin by saying I am extremely honored

to be here and I would like to thank the committee for conducting

these hearings in these very troublesome times.

I would also like to state that I am extremely proud to be an

American and doubly proud to be able to wear this uniform in the

service of our country. I have worn the uniform for 291⁄2 years and

I feel the training I have received in the military has made me very

qualified not only to lead but to also analyze situations and to act

decisively and confidently in times of emergency.

I have learned through my military experience how to keep focused, how to review problems, seek input, build consensus, but

most importantly how to serve the people of this great nation.

These traits that I have learned in my military training have well

prepared me to assume division command in the U.S. Army Corps

of Engineers, first, in 1998 in the Southwestern Division in Dallas,

Texas serving the people of Texas, Oklahoma, Arkansas and Louisiana.

In 2000, a year ago, I moved over to the Mississippi Valley Division in Vicksburg, Mississippi where my responsibilities require me

to watch over the Mississippi River and the entire valley. I will tell

you in that year I have learned quite a bit about the Mississippi

River, but more importantly I have learned there is much more to

be learned. It is an extremely challenging environment that the

Mississippi River Commission has been charged to work in and to

try to understand.

Some of the significant challenges we face are that the Mississippi River has been declared both a nationally significant ecosystem and a nationally significant navigation system. Those two

designations can very often be competing.

Our challenge and what we believe is our mission is how to make

those two aspects work in harmony so that we can preserve them

both, not only for ourselves but for the people who follow us. We

are not necessarily talking about balance or compromise in that

harmony but developing synergy so that we have a win-win situation.

Trying to do that development is especially critical now as we

look at the economic stability of the nation and the value of waterborne transportation to that stability through the center part of the

country. I believe the Mississippi River Commission is well suited

to help us achieve that balance. The Commission conducts public

meetings twice annually at major cities along the river where people come to tell us what they believe the needs of the valley are.

Seeking that public input and getting stakeholders to the table are

extremely important as we manage this important resource for the

nation. It helps develop those win-win alternatives. If I am confirmed as the President of the Mississippi River Commission, I will

209

pursue those goals and work diligently to keep that resource viable

for the nation.

Once again, thank you for this opportunity to speak with you

today and I would be glad to answer any of your questions at this

time.

Senator JEFFORDS. Thank you.

Mr. Diaz?

STATEMENT OF NILS J. DIAZ, NOMINATED TO BE A MEMBER

OF THE NUCLEAR REGULATORY COMMISSION

Mr. DIAZ. Thank you, Mr. Chairman.

I too appreciate the opportunity to appear before you at this difficult and taxing time for our nation. Continuing government functions is one of the many ways of showing the strength of America.

Ten days ago seems like a long time. I provided a written statement summarizing my qualifications as well as a few pertinent

views. I would respectfully request that it be entered into the

record.

Senator JEFFORDS. It will be done.

Mr. DIAZ. Mr. Chairman, I believe I have the experience and I

am committed to fulfill the responsibilities of the office of Commissioner of the United States Nuclear Regulatory Commission. I am

prepared to face both the existing and the new challenges with the

requisite accountability and transparency. There are many important issues with which the Commission will be dealing in the coming months. In particular, although I have not been a member of

the Commission since June 30, I recognize that the recent terrorist

attacks on our country affect all of us and affect all we do. I am

certain the Commission is and will be giving its utmost attention

to assessing implications for the Commission’s programs. I believe

the safeguarding of nuclear facilities and material is of vital concern to the nation and is a key component of the Agency’s mission

to protect public health and safety and the common defense and security.

I stand ready to serve the nation and if confirmed, I can assure

you that I will be devoted to addressing the complex and emerging

issues before the Commission. I will be available, as I have always

been, to members of the committee.

Again, thank you. I would be pleased to answer any questions

you may have for me.

Senator JEFFORDS. Mr. Johnson?

STATEMENT OF PATRICK HAYES JOHNSON, NOMINATED TO

BE FEDERAL COCHAIRPERSON, DELTA REGIONAL AUTHORITY

Mr. JOHNSON. Thank you, Mr. Chairman.

I have some prepared remarks as well that I would like to submit for the record and I would like to make some other comments

if I may.

Senator JEFFORDS. They will be accepted.

Mr. JOHNSON. Mr. Chairman and members of the committee, I

want to join with my fellow panelists in saying how truly proud I

am to be an American on this day and of our President and this

Congress as we meet the challenges ahead of us as a nation and

a people.

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I appear before you, Mr. Chairman, and this committee, as the

nominee of the President to be the Federal Co-Chairman of the

Delta Regional Authority, a newly created Agency which is charged

with jump starting the economy of the Mississippi Delta region.

There are some eight States involved in our region. I have spent

almost three decades in that region participating in business activities, practicing law, as a part of State government and as a part

of the USDA Farm and Home Administration.

I know the region very well. I know its people and I know its

challenges. This indeed will be the challenge of a lifetime. Too, it

is the opportunity of a lifetime to impact the lives of so many for

so many generations to come. I welcome that opportunity. I believe

that I am up to the occasion and I hope, should the committee see

fit to recommend me and should the Senate confirm me, that I will

live up to the expectations of those who have encouraged my nomination and that of the President.

Thank you.

Senator JEFFORDS. Thank you, Mr. Johnson.

General Strock?

STATEMENT OF BRIGADIER GENERAL CARL A. STROCK, NOMINATED TO BE A MEMBER OF THE MISSISSIPPI RIVER COMMISSION

General STROCK. Mr. Chairman, I too am deeply honored to appear before the committee this morning. As a soldier, engineer and

lifelong public servant, I am truly excited about this opportunity to

serve the nation in this capacity.

I have also prepared a written statement that lays out my understanding of the Mississippi River Commission and its mission, the

significance of the Commission to the people of the Valley and the

nation and also my role in that Commission. It also lays out my

qualifications. With your permission, I will submit that for the

record and confine my remarks to my qualifications.

Before I begin, I would like to take this opportunity to express

my appreciation on behalf of the Army and the other Services for

the support that this Congress has given to the nation’s armed

forces. In this time, as we react and respond to this attack on our

nation, we are truly going to need your assistance. The assistance

is not only the legislative assistance you have offered, but the

moral support you have demonstrated through your personal presence at the site of the Pentagon incident as well as in New York

City.

I can tell you firsthand that the responders out there deeply appreciate your being there and they know the significance of your

presence. Thank you very much for that, sir.

As for my qualifications, in terms of education, professional

qualifications, experience and commitment to public service, I have

everything necessary for this important position. I have Bachelor’s

and Master’s degrees in Civil Engineering; I am a registered professional engineer and a member of numerous engineering societies.

It is my experience in the Army and the Corps of Engineers that

has prepared me for this position. I have been in the Army for 30

years and during that time I have had extensive experience in comVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00218 Fmt 6601 Sfmt 6601 78075 SENENV1 PsN: SENENV1
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bat engineer units but I have also had the opportunity to serve on

three different occasions for the Army Corps of Engineers in its domestic support. These assignments include from 1980–83 in the

Mobile District where I was the Project Engineer on the Tennessee

Tombigbee Waterway and projects associated with that project in

Mississippi and Alabama.

It is my service as a senior officer in the Corps of Engineers that

has benefited me most and I think will benefit the Commission. In

the last 4 years, I have served as Division Commander both in the

Pacific Ocean Division with responsibilities for the Far East and

the States of Hawaii and Alaska as well as the Northwestern Division in Portland, Oregon with responsibility for engineer support in

14 States from the Mississippi River to the Pacific Ocean.

In that capacity, I have developed relationships with leaders and

agencies at the local, State and national level, nongovernmental organizations and many private citizens. I have a very deep knowledge of the authorities and legislative processes that guide our

work and I believe these relationships and knowledge will enable

me to really contribute in a balanced way to resolving the complex

problems of the people, the nation and the region.

It is my experience in the Northwestern Division where I had responsibility for operation and maintenance of the Missouri River

Project that will best help here. The Missouri River contributes at

times up to 70 percent of the water in the Mississippi River between St. Louis and Cairo, so the interaction between the two rivers is very important.

If confirmed for this position, I look forward to playing a key role

in enhancing the economic vitality and the environmental quality

of this great river and its tributaries.

Thank you and I am prepared to answer any questions you may

have.

Senator JEFFORDS. Thank you very much. I want to thank all of

you for your fine statements and to commend you all. This past

week has been a very memorable and very disturbing week. I was

never more proud of the United States than I was working with the

Army Corps and all of the people involved from the other emergency agencies in making sure we faced our difficulties as best we

could. I’m proud to say we have come a long way in this past week.

I want to thank you all and all of your men for exemplary service.

Mr. Diaz, the nuclear regulatory area is of great concern to all

of us as to the security and safety of our lives. In Vermont, we have

our own nuclear plant which I was involved with when it started

up and I know a number of people have raised deep concerns about

the safety and what would happen and how are we as far as being

able to protect those plants. I would appreciate any comments you

might have.

Mr. DIAZ. I think the Commission has always been concerned

about the security in the plants. This is not a new issue for us. It

is an issue we have been dealing with for many years and I’m sure

we are going to be dealing with it in the years to come. I believe

that we have in the past, when I was in the Commission, upgraded

the security of local power plants to make it more and more difficult for any terrorist or intruder to cause damage. That doesn’t

mean the systems are perfect, and I believe the present cirVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00219 Fmt 6601 Sfmt 6601 78075 SENENV1 PsN: SENENV1
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cumstances would require the Commission to take a completely

new look at what these security requirements are and how can we

work better with our licensees and with our government and the

designated agencies to ensure that the plants are at the appropriate level.

I do believe we have plans in place that actually address this. I

know in the last week all nuclear power plants in the country have

been put on maximum alert. We have a series of plans to deal with

emergencies and incident response coordination for emergencies

that I believe provide a very good backbone for what we need to

do. I’m sure those things will be improved and I can assure you if

I am confirmed, I will make this issue one of my top priorities.

Senator JEFFORDS. I would like comments from all of you on any

concerns you have after this past week as to observations of available manpower, training and whatever else. Do you have anything

of note that you would like to report to this committee?

General ARNOLD. As you know, the Corps of Engineers operates

many very important facilities across the nation. We have quite a

few inside the Mississippi Valley that are critical to us. After the

events of the past week, we have done security reviews of those to

make sure they are safe. Some were very difficult for us. You can’t

just block them off from the public because as a lock and dam, it

may have a Federal highway that runs across the top of it or a

State highway. We believe we have taken prudent security measures without denying those facilities the access the public needs as

we pass through them.

We will continue to analyze the facilities in the Valley that we

are charged to maintain and preserve to make sure we are doing

the right things so that the benefits derived from those facilities

will not be denied to the nation.

General STROCK. In a similar fashion, at this very moment, we

are convening a forum of construction and engineering industry to

talk about the implications of this disaster, not only on our military

and civil works missions but on our construction and engineering

profession throughout the United States. We are trying to assess

where we go from here.

On the military side, every one of our installations has done a

very detailed threat assessment and vulnerability analysis and

we’re putting into place actions and structures that will protect us

better in the future. We will certainly be providing the details of

the requirements. This will come as a resource requirement for the

military forces and we will be providing that to Congress very

shortly.

Senator JEFFORDS. For Generals Arnold and Strock, the Mississippi River Commission has been around a long time. Much has

changed in that time including our focus on balancing navigation

and flood control needs with environmental protection and restoration. How does the Commission strike that delicate balance?

General ARNOLD. As I mentioned earlier, one of the ways we try

to do that is constantly seeking public input and very open discussion and discourse with various stakeholders. As we look at challenges along the river, we need to develop ways, as you try to optimize environmental effects or navigation effects, that you don’t do

damage to one of the other aspects of the river. There are many

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people in the Valley and across the nation at large who have expertise and knowledge about the different aspects for environmental

restoration, navigation and/or flood protection. The Commission facilitates the discussion in bringing that expertise to the table in the

process of the public meetings. We do those semiannually in a very,

very open process right in the river itself, which is a great natural

workshop. That is what the Commission brings to the table, setting

the forum for public discourse where we can get competing interests talking, take advantage of their expertise and then develop the

win-win solutions to the problems we face.

General STROCK. The Mississippi River Commission when it was

founded in 1879 was really focused on development of the Mississippi River as a transportation corridor. Since that time our mission has evolved. The Commission has been called upon to readjust

priorities. With the great floods in the early part of the 20th century, the Commission was called upon to institute flood control. We

did that very successfully.

Currently, as I see it, the nation is calling on us to have more

involvement in environmental quality and to integrate that more

into how we operate this river. It’s an evolutionary process and I

feel very comfortable with how it’s working. As an example, on a

recent inspection tour of the river, we hosted all the EPA regional

directors who have any responsibility in the area aboard the Motor

Vessel Mississippi to discuss how we will work with the Environmental Protection Agency as we put our engineering works into the

river. I am very confident we are addressing the evolving needs of

the nation in the Mississippi Valley in a very effective way.

Senator JEFFORDS. Now I am going to ask you all the obligatory

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

General ARNOLD. Yes.

Mr. DIAZ. Yes.

Mr. JOHNSON. Yes.

General STROCK. Yes.

Senator JEFFORDS. Do you know of any matters which you may

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

conflict of interest if you are confirmed in your position?

General ARNOLD. No.

Mr. DIAZ. No.

Mr. JOHNSON. No.

General STROCK. No.

Senator JEFFORDS. We have another panel, but thank you very

much.

[Recess.]

Senator JEFFORDS. The committee will come to order.

I want to welcome you all before the committee. I believe you

were probably here through the first part of our hearing, so you understand what we will be doing.

First of all, I want to welcome you before the committee. The positions to which you desire to ascend are very important ones and

thus we take our job very seriously to make sure that you have an

opportunity to let us know how well you can perform. We want to

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help make sure you understand we are available to try and help

you in any way we can.

Again, if you have members of your family here whose presence

you would like to announce, please do.

Mr. Manson?

Mr. MANSON. Mr. Chairman, my wife Penny is back in Sacramento today and was unable to be here. She is with our dog and

our two cats.

Ms. HORINKO. Mr. Chairman, I am especially proud to introduce

my husband, Tim Horinko; my two children, Catlin and Hunter;

my parents, John and Joanna Mascini; and my in-laws, Larry and

Terry Horinko. I further have many friends and colleagues here I

would also like to recognize and thank for their support.

Senator JEFFORDS. Fine.

Mr. Parker?

Mr. PARKER. Mr. Chairman, I have my wife, Rosemary, of 31

years here.

Senator JEFFORDS. Pleased to meet you.

Ms. Peters?

Ms. PETERS. Mr. Chairman, due to recent events, I did not ask

my family to travel here from Arizona for today’s hearing as important as that hearing is. Please know, while they are not here with

me in person, they certainly are in my heart and I am very blessed

to have their love and support as I am considered for this position.

Senator JEFFORDS. I am sure of that.

I want to welcome you all. It is a pleasure to have you with us.

We want to allow you to make your statements and we will then

ask a few questions. We will proceed as before. Mr. Manson?

STATEMENT OF HAROLD CRAIG MANSON, NOMINATED TO BE

ASSISTANT SECRETARY FOR FISH, WILDLIFE, AND PARKS,

DEPARTMENT OF THE INTERIOR

Mr. MANSON. Mr. Chairman, I am honored and humbled to appear before you as the President’s nominee to be Assistant Secretary of the Interior for Fish, Wildlife and Parks. I am deeply

grateful for the confidence shown in me by the President and Secretary Norton. I also want to say a word of thanks to Secretary of

Agriculture, Ann Venneman, who is a colleague from Sacramento

and who has supported and encouraged me in this process.

I appreciate that the committee has taken the time to hold this

hearing in this time of great national crisis. You may know that

the Department of Interior’s personnel, including the U.S. Park Police and law enforcement elements of the U.S. Fish and Wildlife

Service have played roles in responding to the current crisis.

Most regrettably a U.S. Fish and Wildlife Service employee,

Richard Guadagno, lost his life in the crash of the jet in Pennsylvania. Mr. Guadagno was a native of New Jersey, a refuge manager of the Humboldt Bay National Wildlife Refuge in my home

State of California. He was highly regarded by all who knew him

and he embodied the very best attributes of the talented people in

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

I ask that everyone’s prayers be with his family as they are with

the families of all who have been affected by this great tragedy.

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Senator JEFFORDS. We will take a moment to provide everyone

an opportunity to have some thoughts. Let me express my special

thanks from Members of Congress and all of us who know that if

not for the heroic efforts to bring that plane down, we might all

have been affected more dramatically.

Mr. MANSON. I want to tell you that as a proud American, I am

a descendant of Africans, Europeans and Native Americans. I was

born in Missouri and have resided in the western part of the

United States for most of my life.

I received my undergraduate education at the United States Air

Force Academy and following graduation there, I served 2 years as

a Minuteman Missile launch officer. The Air Force then sent me

to law school at the University of the Pacific, McGeorge School of

Law in Sacramento. After that, I served in various Air Force Judge

Advocate positions in the United States and overseas, including a

tour in the Department of Law at the United States Air Force

Academy. During that tour, I was assigned with other faculty

members to report to the Secretary of the Air Force concerning the

state of Air Force compliance with environmental laws on its overseas bases.

After I left active duty in 1989, I practiced with a major Sacramento law firm and then I was appointed by California Governor

Pete Wilson to the then newly created position of General Counsel

of the California Department of Fish and Game. I held that position for 5 years after which the Governor appointed me to be a

judge. I’ve served on the Superior Court in Sacramento since 1998.

I have also been a faculty member of the McGeorge School of Law

since 1992 and I have continued my military service in the Air National Guard and I hold the current rank of Colonel.

Apart from the unmitigated enthusiasm I have for what I think

is the best job in Washington, I offer my experience in natural resources law and policy, an ability to build consensus across diverse

interest groups and a judicial approach to decisionmaking. During

my tenure with California’s Department of Fish and Game, we conserved hundreds of thousands of acres of wildlife habitat in an innovative multispecies planning program in southern California’s

Coastal Sage Scrub Habitat. That Habitat is the home to hundreds

of potentially at risk plant and animal species. It stretches across

the five counties in California where growth and development pressures are the most intense.

Our natural community’s conservation program had bipartisan

support as well as the support of landowners, resource users, local

governments and environmental groups and also had the assistance of the U.S. Fish and Wildlife Service.

As to the largest plans under that program, the San Diego Multiple Species Conservation Plan, the Los Angeles Times said on

March 19, 1997, ‘‘A committee composed of local businesses, including Bank of America and Greater San Diego Chamber of Commerce, concluded the cost to the public is modest given the benefits.’’

In addition to the large scale programs during my tenure at California Fish and Game, we pioneered habitat conservation plans

under our State Endangered Species Act. At one point during the

1990’s, we had more habitat conservation plans under State law

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than existed in the entire rest of the country under Federal law.

These plans, based upon the scientific judgments of our biologists,

involved the cooperation of landowners and again, hundreds of

thousands of acres of habitat were conserved while allowing economic activities to proceed.

I have spent most of my adult life in public service and during

that time I’ve had no prouder moment than when Governor Pete

Wilson in 1997 signed amendments to the California Endangered

Species Act. I had been entrusted with the Wilson Administration’s

negotiating portfolio on that and we worked for 4 years to build a

consensus among environmental groups, landowners, local governments and agricultural interests. We listened to everybody and

eventually our legislation conceived by a Republican administration

was introduced by three Democratic State legislators and won bipartisan support.

I mention my experiences in California to illustrate my commitment to work through environmental and natural resource public

policy issues on a consensus basis wherever possible. In that regard, I am completely committed to what Secretary Norton describes as the four Cs, communication, consultation and cooperation, all in the service of conservation. I strongly support Secretary

Norton’s philosophy that the Federal Government must be a partner with State and local governments, individuals and non-governmental organizations.

If I am confirmed, I will apply my judicial experience to the

issues involving natural resources and natural parks. Every interested party will get a fair hearing—environmental groups, landowners, farmers, ranchers, sportsmen, State and local government.

Second, any decisions or recommendations I give to the Secretary

will be based on the weight of the evidence.

One of the aspects I most look forward to if I am confirmed is

the opportunity to work with the talented and dedicated employees

of the U.S. Fish and Wildlife Service and the National Park Service. I have great respect for these professionals who ensure the

preservation of our treasures every day.

Mr. Chairman, I love our great country and the physical resources with which we have been blessed. If I am confirmed, I will

do my best to ensure these resources remain a perpetual resource

of enjoyment for the American people.

Thank you and I will be pleased to answer any questions.

Senator JEFFORDS. Thank you, Mr. Manson. I will leave the

questions until last.

Ms. Horinko, please proceed.

STATEMENT OF MARIANNE LAMONT HORINKO, NOMINATED

TO BE ASSISTANT ADMINISTRATOR, OFFICE OF SOLID

WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL

PROTECTION AGENCY

Ms. HORINKO. Thank you for the privilege of coming before you

and the distinguished members of the committee today. I am honored that President Bush nominated me to be Assistant Administrator for the Office of Solid Waste and Emergency Response at the

U.S. Environmental Protection Agency. I believe that all the public

and private sector positions that I have been fortunate enough to

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hold in the past have set the stage for this opportunity to serve our

country. If confirmed, you have my word that I will bring thoughtful deliberation, integrity and enthusiasm to the challenges that

loom ahead.

I am particularly attracted to this opportunity to serve EPA because thanks to my father, I probably have some groundwater running in my veins. My dad is a geologist who worked for many years

as a university professor and a career civil servant at the National

Science Foundation. He taught me to love science and by example

showed me that public service was not merely a job but a higher

calling. My mother provided strong support and reinforcement of

our love of science and curiosity about our natural environment.

Their great respect for the natural treasures of our lands impressed me deeply and it is because of their early influence that

I chose the protection of the environment as my calling.

In my statement today, I would like to share some of the key

themes and approaches I would bring to this position if confirmed.

They include innovation, information sharing and partnership. One

of my principal observations is that there has been a sea change

in Federal attitudes and approaches to managing waste. The old

command and control method has been supplemented in some

measure by partnerships and consensus building as the means of

cooperative problemsolving.

An example of that innovation is the emerging linkage between

environmental cleanup and community revitalization. The

brownfields story is all about a new way of doing the government’s

business. Like Governor Whitman and President Bush, I wholeheartedly support passage of brownfields legislation during this

session of Congress. With a strong brownfields bill and working in

tandem with our State and local brownfields efforts, there is no

limit to what we can accomplish.

Significant challenges face the EPA work force. Much as been

made about the baby boomer retirement outflow and the need for

a newly energized and well equipped work force to address the

challenges of the future.

I think there is also great opportunity on the information side of

the equation. More emphasis needs to be placed on ensuring that

all stakeholders have access to clear and understandable information about the health and environmental risks they face. Policymaking cannot and should not exist in a vacuum. I believe the people who create Federal regulations should be required to meet face

to face with the citizens whose lives they affect. What better way

to experience firsthand how the policies we make here in Washington can affect the comfort and quality of life in our towns and

cities across the United States.

If confirmed, I plan to work closely with our State and tribal

partners to ensure that all cleanups are both protective of human

health and the environment as well as implemented with an eye

toward community revitalization.

Finally, given the tragic events of September 11, I feel I must

take a moment to talk about a key role for the Office for Assistant

Administrator as EPA’s lead on counter terrorism. I spent virtually

all of that fateful day with Governor Whitman and the outstanding

staff at the Emergency Operations Center on Pennsylvania Avenue.

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Amid an ocean of chaos, we observed with wonder and awe an island of calm, steady professionals who make up EPA’s emergency

response team. These individuals are not only technically and substantively competent but have pulled together an organized approach to dealing with the horror of chemical, biological or nuclear

attacks on our citizens. When terror struck on Tuesday, they

sprung into action and made certain that the public health and

safety of our people were protected and ensured. They are truly the

unsung heroes of our Agency. If confirmed, I pledge to give our

counter terrorism activities the highest priority and to do all that

I can to make their jobs easier.

I realize that I’ve not even scraped the surface of all the issues

and challenges that await me but I can assure this committee that

if confirmed, I will tackle each one with enthusiasm and equanimity. I will work hard to meet these challenges in a fair, balanced, open and honorable fashion. I look forward to working closely with the Congress and especially the members of this committee

on the stewardship of our environment.

Thank you for considering me for this position.

Senator JEFFORDS. Thank you for an excellent statement.

Mike, I guess you came to the House the hear I left.

Mr. PARKER. I took over when you left.

[Laughter.]

Senator JEFFORDS. Pleased to have you with us. Please proceed.

STATEMENT OF PAUL MICHAEL PARKER, NOMINATED TO BE

ASSISTANT SECRETARY OF THE ARMY FOR CIVIL WORKS,

DEPARTMENT OF DEFENSE

Mr. PARKER. It is a great honor and privilege to appear before

this committee as the nominee to be the Assistant Secretary of the

Army for Civil Works. I am very grateful to the President, the Secretary of Defense and the Secretary of the Army for the trust and

confidence they have placed in me.

If confirmed, I pledge that I will work as hard as I possibly can

to serve the soldiers, civilians and families that make the United

States Army, the most powerful and professional army in the

world.

I especially want to also publicly thank Senator Cochran for his

kind words in introducing me earlier.

Senator JEFFORDS. I know Senator Lott was hoping to be here

but he asked me to express his regrets. He was unable to be here.

Mr. PARKER. Thank you.

The Corps of Engineers has a proud history stretching back to

the beginning of the country. Over the years, the Corps has evolved

to emphasize its major civil works responsibilities of today, conservation and development of the nation’s water resources which

include flood control, navigation, shore protection and environmental restoration. All of these tasks are important. All are complex and demanding and all require significant resources. With

competing demands for limited dollars, fulfilling these requirements becomes more and more challenging. However, I am committed that should I be confirmed, environmental considerations

will remain a key factor in determining our civil works stance for

the nation.

219

The dedicated and able staff of military and civilian employees

who make up the Corps of Engineers has risen to every challenge

in the past and I am sure will continue to carry out their responsibilities to the people of this country in these vital areas.

In the last week, you can see the value of the Corps to this nation and the dedication of its people as we recover from the recent

tragedies at the World Trade Center and at the Pentagon. The

Corps is heavily involved in determining structural integrity and

debris management in both locations and continues to serve as the

nation’s premiere engineers during this time of crisis. Should I be

confirmed, I will be proud to work alongside these ultimate professionals.

In the 10-years during which I had the honor of representing the

Fourth District of Mississippi in the U.S. House of Representatives,

I applied my commitment to finding practical, realistic solutions to

problems and issues of importance to my constituents. Having

served on various House committees which deal with a range of

issues I can expect to face as Assistant Secretary, I understand

both the civil works and the military program aspects of the Corps

of Engineers and appreciate the challenges facing the Corps.

Should I be confirmed, I look forward to serving with the Army and

the Corps during this landmark era of change and transformation.

I look forward to serving with the Army team of active, reserve and

National Guard soldiers who distinguish themselves every day by

their dedication and hard work. I am prepared to undertake the

important responsibilities of this post and am enthusiastic about

the opportunities it presents to me to continue to serve this great

country.

I am committed to working closely with and consulting with the

various stakeholders in the ongoing Corps projects, including the

Members of Congress who represent the American people. If confirmed, I look forward to a strong working relationship with you

and this committee.

I would be pleased to answer any questions at the appropriate

time.

Senator JEFFORDS. Thank you, Mr. Parker.

Ms. Peters, Senator McCain wanted to be here and he has given

me glowing remarks on your capacity, so that will be made a part

of the record, but he was disappointed he could not be here. Please

proceed.

STATEMENT OF MARY E. PETERS, NOMINATED TO BE ADMINISTRATOR OF THE FEDERAL HIGHWAY ADMINISTRATION,

DEPARTMENT OF TRANSPORTATION

Ms. PETERS. Mr. Chairman, Senator Carper and members of the

committee, I do very much appreciate the opportunity to appear before you today as you consider my nomination for Administrator of

the Federal Highway Administration. I do recognize the many competing demands on your time at this time in our country and I appreciate that you have carved out this time today.

I too am honored to have been nominated by President Bush and

with the concurrence of Secretary Mineta, who I think has demonstrated in this past week his tremendous capacity as Secretary

of the Department of Transportation.

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Should you choose to confirm me, I look forward to working with

this committee, with each of you, with your very capable staffs and

many other stakeholders to administer the Federal Highway Program.

Transportation affects everyone in our country. Each one, every

man, every woman, every child has the right to expect a safe, accessible, affordable and reliable transportation system. Transportation that is responsive to the citizens and the businesses we

serve is vitally important to our nation’s economic health, quality

of life and the safety and security of every American. The tragedy

of September 11 graphically demonstrated this very important

point.

There are a number of factors to be considered in ensuring that

transportation meets these requirements. To respond to these factors, if I am confirmed, I would immediately focus on several priority areas. Among these are highway safety and security, environmental stewardship and streamlining processes, the stewardship of

public funds to ensure that every dollar that is entrusted to the

Federal Highway Administration is used appropriately in the diligent performance of our duties, relieving congestion and bottlenecks, and finally, the very important reauthorization of the Transportation Act.

I have spent more than 15 years in the transportation field. I

have had the opportunity to be involved in a number of local, regional and national transportation issues as State Director of

Transportation in Arizona. In that capacity, I had responsibility for

highway, transit, rail and aviation transportation functions as well

as motor carrier programs, driver licensing, vehicle registration,

tax collection and tax distribution.

This experience afforded me the opportunity to recognize the importance of dealing systemically and inclusively with these issues,

remaining mindful of the integration of the various modal functions

in arriving at solutions that meet transportation demand. I bring

this experience to the position for which I have been nominated, as

well as knowledge of the technical aspects of planning, building, operating and maintaining transportation systems, the use of technology in arriving at solutions, and a background in the finance

and economics of those systems.

Recognizing the many demands on your time, I will make my

statement very short today. I have submitted for the record a

longer statement and again, I sincerely appreciate the opportunity

you have given me to appear before you today and would be

pleased to answer questions at the appropriate time.

Senator JEFFORDS. All of you, your entire statements will be

made a part of the record.

I have just a question or two to ask of each of you and then we

also have obligatory questions we have to ask before we can go on

to confirmation.

Mr. Manson, with the possible exception of phosphorous pollution, nonendemic nuisance species are the biggest problem facing

Lake Champlain in Vermont. Sea lampreys have decimated the

fishery there. Milfoil and water chestnuts have made much of the

Lake inaccessible and zebra mussels are beginning to flourish. The

USFWS’ Lake Champlain office is working to address these probVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00228 Fmt 6601 Sfmt 6601 78075 SENENV1 PsN: SENENV1
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lems but needs more resources. What do you see as the role of

USFWS in working on nuisance species issues?

Mr. MANSON. I’m not familiar with the specific Lake Champlain

issues but I am aware from my prior experience that invasive mutant species issues exist throughout the country in various ecosystems and the Fish and Wildlife Service has a very important

role to play in that arena. If I am confirmed, I will certainly a close

look at the allocation of resources to deal with those types of problems across the board.

Senator JEFFORDS. That is one of the advantages. As chairman,

I get to get a little of my own personal problems involved here.

[Laughter.]

Senator JEFFORDS. How do you feel about this role for USFWS

being formally authorized during the upcoming reauthorization of

the Lake Champlain Special Designation Act?

Mr. MANSON. Again, I am not familiar with that particular piece

of legislation but I will look into that and I would certainly be

happy to provide you an answer for the record about that issue.

Senator JEFFORDS. I just want to raise your awareness of it and

hopefully you will remember that.

Ms. Horinko, I understand that at least 50 percent of the Superfund sites in New England are slowed down by the lack of either

total or partial funding. How much funding should Congress appropriate annually to meet the timely cleanup needs of the Superfund

Program, the whole program?

Ms. HORINKO. You are touching upon one of the most important

issues the Agency is facing as the Superfund Program matures. If

I am confirmed, I will be taking a hard look at the Superfund

budget and engaging in a dialog with you and your colleagues on

the future of the program and how should we prioritize these sites

so that they get cleaned up as quickly as we possible can, especially

including sites in the New England region.

Senator JEFFORDS. Mr. Parker, you are sitting on a panel today

with many of the people you will be working with in order to carry

out the commitment you made in your statement that environmental considerations will remain a key factor in determining our

civil works stance. Will that commitment involve consulting with

your counterparts at the Department of Interior on endangered

species and the Department of Transportation on highway projects

impact on our waterways and wetlands, and the Environmental

Protection Agency?

Mr. PARKER. Yes, it will. As a matter of fact, before the hearing

started, Mr. Manson and I were talking about getting together if

we are both confirmed. We have to sit down and talk because one

of the problems that we have had—and everyone is guilty of this

to some degree—are these turf battles where they sit around and

worry about their own turf so much sometimes they forget to consult or they consult in a very shallow way with other agencies.

They worry so much about turf that they don’t really solve the

problem.

Especially in this time of national distress of being under attack

as we have been and are, I think it becomes even more imperative

that all agencies, especially the Corps, not create a situation for

themselves where they just sit back and say this is our turf, we’re

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the only ones that can control it and we’re going to make the decisions. They have to truly reach out, truly have others involved and

everybody have a part in the solutions that we have to find.

Senator JEFFORDS. Ms. Peters, we need to balance the surface

transportation system in this country with highways, transit and

rail, all providing service. ISTEA and T20 through their flexibility

problems have allowed States to begin to create this balance. Do

you support these flexibility provisions and will you work to retain

and strengthen the flexibility in the upcoming reauthorization process?

Ms. PETERS. I have discussed this very issue with Secretary Mineta and other members of the Department of Transportation, including my colleagues who are administrators of transit, rail and

other modes. We do intend very much to work together to preserve

and enhance the flexibility provisions of the law so the communities can use the best tools available to them to respond to transportation issues and not be driven by money or silos.

Senator JEFFORDS. Senator Carper, do you have any comments

or questions you want to ask?

OPENING STATEMENT OF HON. THOMAS R. CARPER,

U.S. SENATOR FROM THE STATE OF DELAWARE

Senator CARPER. To our witnesses, our nominees, welcome. We

are delighted you are here and congratulations on your nominations.

I am especially pleased to welcome Mike Parker, a colleague with

whom I was privileged to serve for two terms in the House. I may

be the only person on this panel who was fortunate to have been

on his data base as a Congressman, as a Democrat, as a Republican.

Mr. PARKER. You contributed when I was a Democrat.

[Laughter.]

Senator CARPER. I understand our witnesses were given the opportunity to introduce their families earlier when they were seated.

I missed that portion. There are a couple of kids here, a little boy

I can see back there and whose child is that? Ms. Horinko? Would

you reintroduce your family for us?

Ms. HORINKO. Thank you, Senator Carper. I am delighted to.

There is my husband, Tim Horinko and my two children, Hunter

and Caitlin.

Senator CARPER. How old are they?

Ms. HORINKO. Hunter is two and Caitlin is four.

Senator CARPER. They are good kids.

Ms. HORINKO. Yes, they are. Thank you.

Senator CARPER. I don’t know that I would be as brave as you.

When my boys were two and four I don’t now that I would have

brought them in here.

Thank you for being here and for your willingness to share your

wife and your mother with the rest of our country.

Congressman Parker, do you have anyone from your family here?

Mr. PARKER. My wife, Rosemary.

Senator CARPER. Thanks for sharing Mike with us for a long

time.

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I have a couple of questions. Ms. Peters, you look familiar. I was

Governor of Delaware for the last 8 years and a woman named Ann

Canby was our Secretary of Transportation. Do you know her at

all?

Ms. PETERS. Mr. Carper, I know her very well.

Senator CARPER. I have a question for you if I could and it relates to the use of congestion mitigation money. States get money

for a variety of things in transportation and one of the things we

get money for is for congestion mitigation. We can use that money

to build roads, intersections, for improving the throughput of traffic

and integrated traffic management systems. In our State we use

some of the money for bicycle paths or you can use it for freight

railroads.

We don’t have discretion in our State governments to use the

money for passenger rail. In our judgment that seems to make

sense to mitigate traffic congestion. Do you have any thoughts at

all about whether States should have that kind of flexibility?

Ms. PETERS. I do believe that the States should have the maximum flexibility available to them to use funds so they can meet

their transportation demand in the manner which best serves the

citizens of their State.

The whole issue of passenger rail funding and the source of that

funding, as you are well aware, has been a source of a lot of discussion recently. How this money is collected, the user fees, and how

it is spent is something I would look forward to discussing with you

further as we go forward. I have had the opportunity to discuss

that briefly with the Deputy Secretary and it is something he is interested in, as I am.

Senator CARPER. When Tommy Thompson, now Secretary

Tommy Thompson, was Governor of Wisconsin and chairman of the

Amtrak Board, he put forth a proposal to earmark half a penny of

the gasoline tax to be used to provide the only supplemental appropriation for Amtrak. Any thoughts about that idea? I’m not trying

to put you on the spot. Whether you support or not, I’m to support

your nomination but I’m interested in your perspective.

Ms. PETERS. I do think passenger rail has to be a very important

part of the solution to meet transportation demand. I was involved

in several of the policy discussions with regard to allocation of

funds to Amtrak. The objection appeared to be the user fee basis

of doing that.

As I indicated earlier, I think we need the maximum flexibility

we can have to spend on transportation. Demand needs to be met

whether it’s met with a highway, with passenger rail, with telecommuting or with other programs that disperse the amount of demand we have. I think are all important considerations.

I would look forward to working with you and with the Secretary

to determine if that allocation of money would be appropriate.

Senator CARPER. I’ve just come from a caucus meeting where the

legislation is being reviewed with the members of our caucus on

the potential cost of assistance for the airline industry in the wake

of last week’s tragedy. The amount of money we will probably be

asked to invest as a country in the airline industry to help them

in their time of need is going to be enormous. When we compare

the amount of money we put into passenger rail for the whole life

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of Amtrak, I think will put that whole issue in a different context

going forward.

Senator JEFFORDS. I agree with you on that. I believe very

strongly as you do that the rail alternative, especially for transit

from DC to New York and places like that makes so much more

sense than the airways.

Senator CARPER. One more question, maybe two. Ms. Horinko,

what part of EPA has jurisdiction or owns the issue of recycling

solid waste?

Ms. HORINKO. That is my part of the Agency.

Senator CARPER. This is kind of a broad question and you can

take it where you want. Talk to us a bit about your interest in recycling solid waste? Where do you and your family live, what

State?

Ms. HORINKO. We are in Virginia, Centerville, Virginia, right in

the D.C. area.

Senator CARPER. How do families recycle in your community?

Ms. HORINKO. In Fairfax County where we live, we have curbside

recycling, we source separate and one day a week along with the

regular trash, the aluminum, glass and newspaper are picked up.

Senator CARPER. Do you want to share some thoughts with us as

a citizen on your take on recycling, what you all do as a family and

maybe use that to talk about what we should be doing as a country?

Ms. HORINKO. What I told Governor Whitman when I interviewed with her to take this job was that if you walk into a video

arcade that has older video games in Ocean City, Maryland or in

Bethany Beach——

Senator CARPER. Have you been to Bethany Beach?

Ms. HORINKO. I am a local to the Washington area and grew up

as a child going to Bethany Beach.

Senator CARPER. We love Bethany Beach, Bethany Beach, Delaware, just north of Fenwick Island and south of Rehoboth.

Ms. HORINKO. It is a lovely, idyllic beach town and a wonderful

place to go to the beach.

If you put your two quarters into a video game that is more than

7 or 8 years old, up pops the EPA logo and it says ‘‘Reduce, reuse,

recycle, William K. Riley, Administrator.’’ So I told Governor Whitman, at a minimum, we would get that changed to ‘‘Christine Todd

Whitman’’ but while I have Sony and Sega on the phone, perhaps

we could talk to them about extending that to playstations, game

boys and maybe they would be interested in a cooperative agreement on electronics waste recycling while we are working on that.

Maybe there are things we can do to get folks engaged at the

schools in recycling.

I think recycling is an important issue, not necessarily in terms

of the risk reduction or environmental protection but that it engages consumers at the hands-on level in environmental issues.

Once they start thinking about if they are recycling and source reducing, they take the next step and start thinking about what kind

of car am I driving, where am I choosing to live and what is the

air quality in my area. Recycling is like a gateway issue that engages people at the retail level in environmental protection.

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If I am confirmed, you will have my commitment that we will do

a number of interesting and fun things to promote recycling and

get people thinking about the broader issues as well.

Senator CARPER. I have had the opportunity to talk with Congressman Parker a time or two in the last couple of weeks about

an issue near and dear to our hearts in Delaware. There is a canal

that was built that cuts the State of Delaware literally in half

called the Chesapeake and Delaware Canal which connects the

Delaware Bay to the Chesapeake Bay and provides a short cut for

ships trying to get from the Atlantic Ocean to Baltimore.

Our State is not very big, a lot smaller than Vermont but this

canal cuts our State in half. It uses a big swath of our land and

disrupts commerce because we have to figure out how to get over

this canal.

The Army Corps of Engineers or the Federal Government took

over the canal back in the early part of the twentieth century and

has owned and operated it for a number of years. Under Federal

law, the Corps has responsibility from time to time to provide adequate crossings over this canal.

For us in Delaware, we’d like to line up and fill the canal in, line

up citizens on either side, fill in the canal, give us an appropriation

for shovels and we will fill it in and that way ships won’t have a

short cut to get to Baltimore, they can use the Port of Wilmington.

Moreover, we wouldn’t have our commerce disrupted and our way

of life disrupted as it has been for over 100 years.

The Corps built a new bridge and as you come off 95 to head

south you cross that bridge about 10 miles south of I–95. There is

a bridge not far away in a little town called St. Georges where the

Corps continues to own, maintain and operate the older bridge

which is over 50 years old but has refused to take over ownership

and operation of the new bridge about 3 or 4 years old.

One concern I expressed to Congressman Parker is to resolve the

ownership issue around that bridge as well as the old bridge. Initially, I think the Corps wanted to tear down the old bridge. As it

turns out, traffic is increasing so quickly, we will need that capacity from the old bridge as well as the new one and about 10 years

we can have another fight to build another bridge or we can leave

the one that is there and keep it in some kind of usable capacity

so when we need it, it will be there.

I would ask Congressman Parker to share a thought or two on

this with us today.

Mr. PARKER. You and I have discussed this. I don’t know everything about the issue as far as all the details and legal ramifications, but at the same time, some general statements I think would

be good to share with you and the committee.

It is very important that the Corps not put burdens on local municipalities or local States that should not be borne by them. It is

also important that the Corps of Engineers follow through with obligations and promises they have made and responsibilities they

have taken. From that standpoint, I look forward to working with

you to resolve this.

I know this is a longstanding problem that you have had and if

confirmed, I look forward to working with you to resolve that in an

equitable way and something that will be good for this country and

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also good for the citizens of Delaware because the Corps did accept

some responsibility that it should follow through with. I can assure

you I will work to that end.

Senator CARPER. I appreciate those assurances and look forward

to working with you to resolve the issue of ownership and to move

forward.

Thank you.

Senator JEFFORDS. Now it comes down to the obligatory questions. Are you willing at the request of any duly constituted committee of the Congress to appear in front of us as a witness?

Mr. MANSON. Yes, I am.

Ms. HORINKO. Yes, I am.

Mr. PARKER. Yes.

Ms. PETERS. Yes, sir.

Senator JEFFORDS. Do you know of any matters which you may

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

conflict of interest if you are confirmed in this position?

Mr. MANSON. No, sir.

Ms. HORINKO. No.

Mr. PARKER. No.

Ms. PETERS. No, sir.

Senator JEFFORDS. That ends the hearing. We assure you we are

going to take up your nominations in a timely process. We know

you are all anxious to get to work and we need you at work, so we

will be working very rapidly to get you cleared.

Thank you all. The hearing is adjourned.

[Whereupon, at 10:40 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

[Additional statements submitted for the record follow:]

STATEMENT OF HON. JOHN MCCAIN, U.S. SENATOR FROM THE STATE OF ARIZONA

Thank you, Chairman Jeffords, for permitting me to introduce Mary Peters, who

has been nominated to serve as the Administrator of the Federal Highway Administration (FHWA).

I am very pleased the President has selected such an experienced and capable individual to fill this important position within the Department of Transportation.

Mary is a fourth generation Arizonan and I know that transferring her residency

from Peoria to Washington D. C., must come with some trepidations. But while Arizona will miss her, the rest of the Nation will certainly benefit from Mary’s leadership and willingness to take on this new challenge.

As you all know, the FHWA Administrator plays a critical role in overseeing our

nation’s roads and highways, administering the Federal grant programs. These programs provide billions of dollars in funding to the States to construct and improve

the National Highway System, urban and rural roads, bridges, as well as funding

for roads in to our national parks, Indian reservations and other public lands. Critical to carrying out the administrative responsibilities of these grant programs is

the stewardship of high-dollar transportation projects, such as the Big Dig and the

Woodrow Wilson Bridge. This must be a top priority for the FHWA Administration

and I know Mary is well prepared to carry out such a responsibility.

Mary Peters has first hand knowledge of the highway program having served in

the Arizona Department of Transportation (ADOT) for 16 years. She started at

ADOT in 1985 and was appointed Director in March 1998. Mary has a long and

accomplished record and has often received well deserved recognition for her efforts.

For example, she was named the 1994 Women’s Transportation Seminar Woman of

the Year as well as their 1998 Person of the Year, was profiled by the Arizona Business Journal in 1996, recognized as one of the Top 100 Who’s Who of Arizona

Women in Business, and as the Most Influential Person in Arizona in Transportation.

One of Mary’s big accomplishments has been her success in accelerating Arizona’s

Regional Freeway System project by 7 years. It was originally scheduled to be comVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00234 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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pleted in 2014, but through her leadership, it is now projected to be finished in

2007. Under her direction, ADOT has been a successful leader in ‘‘design-build’’

projects, using innovative techniques such as contractual incentives to complete road

projects with minimal inconvenience to travelers.

ADOT also has received many awards under Mary’s leadership for its attention

to the environment and visual impact of construction projects. And of course Mary

was very instrumental in getting the Hoover Dam Bypass project underway with

the cooperation of Nevada and the Federal Government. Early on she recognized

this project as Arizona’s No. 1 priority.

On a personal side, Mary is one of the kindest persons you’d ever want to know.

She is a great humanitarian and is genuinely interested in the lives of all of her

employees. I am told Mary not only knows every ADOT employee by their names,

but she also knows the names of their spouses and children. She understands the

importance of family and friends and she shows it every day in her care and concern

for those around her.

And finally, I cannot resist mentioning an interesting tidbit about Mary’s past

which is a very good indication that she is definitely the right person for this job.

Before Mary became involved in the transportation field, she was in the butchering business. She made her living by cutting pork. This background should come

in very handy for Mary in the months ahead and I urge her to rely heavily on her

past porkcutting expertise as she works to carry out her responsibilities. Mary will

undoubtedly face unlimited requests to support and fund members pork projects but

to the extent of her authority, those projects would more appropriately deserve the

same treatment that she mastered as a butcher.

Thank you.

STATEMENT OF HON. BLANCHE L. LINCOLN, U.S. SENATOR FROM THE STATE OF

ARKANSAS

As the lead sponsor of S. 1622, the Delta Regional Authority Act, I would like to

thank Chairman Jeffords for scheduling this hearing on the nomination of Pete

Johnson to serve as Federal co-chair. Installing a Federal co-chair is critical to

prompt establishment of the Delta Regional Authority, and I hope the committee

will swiftly confirm Mr. Johnson.

While I do not know Mr. Johnson personally, my research indicates that his experience has prepared him well for this job. Working with the Farmers Home Administration, Mr. Johnson became familiar with the needs of the Delta region. And his

accounting background gives me confidence that he will ensure that the Delta Regional Authority utilizes the Federal dollars that have been appropriated to it wisely. I look forward to working with Mr. Johnson in the coming months as he convenes Governors of the States in the Delta region to organize the Authority.

As members of this committee may know, the lower Mississippi Delta suffers from

a greater measure of poverty and unemployment than any other region of the country. Per capita income in distressed counties of the Delta is only 53 percent of the

U.S. average, and over half of the 219 counties and parishes within the Delta Region have had poverty rates above 20 percent for the past four decades. I proposed

the Delta Regional Authority to provide long-term coordination among Federal,

State and local entities committed to economic development in the Lower Mississippi Delta region.

The creation of jobs, the expansion of existing businesses, and the development

of local economies are essential to achieving economic growth in the region. In order

to achieve this growth, resources such as an adequate physical infrastructure, a

skilled and trained workforce, enhanced local leadership, and greater opportunities

for development and entrepreneurship are needed.

The Delta Regional Authority will:

• provide technical assistance to small localities that have only part-time staff

to negotiate the complicated application process necessary for acquiring Federal

funding for critically important transportation, housing, infrastructure and economic

development projects;

• aid needy localities in meeting the matching fund requirements of Federal programs that require such funds; and

• foster cooperation among State, localities, private sector interests and charitable, non-profit groups to determine region-wide solutions to regional problems.

I thank the chairman and I look forward to working with this committee on reauthorization of the Delta Regional Authority next year.

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STATEMENT OF BRIGADIER GENERAL EDWIN J. ARNOLD, NOMINATED TO BE A MEMBER

AND CHAIRMAN OF THE MISSISSIPPI RIVER COMMISSION

Mr. Chairman and members of the committee: I am honored to appear before you

as the nominee for president and member of the Mississippi River Commission.

Mr. Chairman, I would like to make a brief statement about the Mississippi River

Commission, the Mississippi River and Tributaries (MR&T) project, and my qualifications for the position for which I have been nominated.

The Mississippi River Commission, established by Act of Congress on June 28,

1879, consists of seven members, all of whom are appointed by the President of the

United States subject to confirmation by the Senate. Three members are Corps of

Engineers officers, one of whom serves as president; one member is from the National Oceanic and Atmospheric Administration; and three members are from the

civilian sector, two of whom must be civil engineers.

From its inception in 1879, the Commission has been charged with the task of

planning and implementing a program of flood damage reduction projects and navigation improvements on the Mississippi River. More recently, project purposes have

been expanded to include environmental restoration. This task continues to be conducted in concert with the myriad of political institutions, individuals, and public

entities which have major interests in seeing that the water resources needs and

opportunities of the Mississippi Valley are evaluated, planned, designed, constructed, and maintained.

As established in 1879, the Commissioners were to serve as advisers in planning

and implementing water resource projects and programs on the Mississippi River

between the Head of Passes below New Orleans to its headwaters. Since 1928, the

Commission has focused on the Mississippi River and Tributaries project, authorized by the Flood Control Act of May 15, 1928, to be implemented under oversight

of the Commission. The MR&T project extends generally from the confluence of the

Ohio River to the Head of Passes below New Orleans and covers portions of seven

States. It receives water from all or portions of 31 States and part of two Canadian

provinces, or roughly 41 percent of the contiguous United States. Effective planning,

design, construction, and operation of the widespread and complex MR&T project

have been assisted greatly by the Commission’s active consultation with the public,

particularly on its semiannual lower Mississippi River inspection trips, and by the

high degree of professionalism that has been developed in its staff.

A major flood on the lower Mississippi River would have catastrophic effects on

the inhabitants of the Mississippi Valley and the economy of the nation were it not

for the protection provided by the levees and other flood control works along the

main stem of the Mississippi and Atchafalaya Rivers. Many have noted that the

comprehensive project on the lower river provided for passage of major floods in

1973, 1983, 1997, and other years without the extensive damage suffered in the

upper river area during the 1993, 1995, and 2001 flood events.

In addition, the navigation features of the project help to maintain the river for

shipping import and export commodities between inland ports and world markets.

Reorganization of the Corps of Engineers in April 1997 placed the entire length

of the Mississippi River within one Division of the Corps of Engineers. I serve as

Commander of this Mississippi Valley Division of the Corps. Command of the Division office traditionally has also included duties as President of the Mississippi

River Commission. The reorganization of the Corps now allows management of the

Mississippi River as a single and unified system and enables the President and

members of the Commission to more effectively serve as advisers to the Chief of Engineers as authorized in the 1879 legislation.

The Commission members have been active as advisers to the Corps on the Upper

Mississippi River since the reorganization in 1997. The Commission has conducted

inspection trips on the Upper Mississippi River in August 1997–2001, holding a series of public meetings in the St. Paul, Rock Island, and St. Louis Districts each

year, in addition to the semiannual inspection trips and public meetings in the

Memphis, Vicksburg, and New Orleans Districts.

In regard to my personal qualifications, I am a graduate of the University of

Texas at Austin where I was commissioned in 1972 into the U.S. Army Corps of

Engineers. I hold both a Bachelor of Science degree in Geology and a Master of

Science degree in Civil Engineering from the University of Texas at Austin. I am

also a graduate of the U.S. Army Command and General Staff College, School of

Advanced Military Studies, and the Army War College.

Since September 2000, I have served as Commander of the Mississippi Valley Division and also as president designee of the Mississippi River Commission. In this

position, I have led and managed the Corps’ water resources program in the Mississippi River Valley. The boundary of the Mississippi Valley Division extends from

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Canada to the Gulf of Mexico, includes portions of 12 States, and encompasses

370,000 square miles. The program and activities overseen by the Mississippi Valley

Division and Mississippi River Commission are conducted by district offices located

in St. Paul, Rock Island, St. Louis, Memphis, Vicksburg, and New Orleans.

I have served over 29 years in the uniformed military service as an Army Engineer. I have commanded at all levels from platoon through Division. I served as

Resident Engineer, U.S. Army Engineer Division, Europe, with duty in Athens,

Greece. I was the Battle Lab Director and Deputy Commandant at the U.S. Army

Engineer School, Fort Leonard Wood, Missouri, before I assumed command of the

Southwestern Division of the U.S. Army Corps of Engineers in Dallas, Texas, my

last tour of duty before being assigned to my current command of the Mississippi

Valley Division of the Corps of Engineers, with its headquarters located in Vicksburg, Mississippi.

In my role as Commander of the Mississippi Valley Division, I have responsibility

for Federal involvement in the areas of flood protection, navigation, and environmental preservation along the Mississippi River. I directly supervise the programming and expenditure of Federal resources through the Army Corps of Engineers

Civil Works budget within the Mississippi River Valley. My knowledge of the various programs and my daily involvement with constituent groups throughout the

valley make me well qualified for the position of President and member of the Mississippi River Commission.

If confirmed to the position, Mr. Chairman, I would look forward to playing a key

role in the continual improvement of the Mississippi River system and the Mississippi River and Tributaries project by applying the most modern practices in

water resources engineering. I would also look forward to being the President of a

Commission that focuses not only on the traditional roles of safely passing the Mississippi River Basin floodwaters to the Gulf of Mexico, plus providing a safe and dependable navigable waterway, but also incorporates programs and projects for environmental protection and restoration.

Mr. Chairman, for your information, I have attached my complete biography. This

completes my prepared statement, and I would be pleased to respond to any questions.

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STATEMENT OF NILS J. DIAZ, NOMINATED TO BE A COMMISSIONER, NUCLEAR

REGULATORY COMMISSION

Mr. Chairman, members of the committee: It is a pleasure to appear before you

today. I am honored by President Bush’s nomination and by the Senate’s consideration of my qualifications for a second term as Commissioner, U.S. Nuclear Regulatory Commission (NRC). I also appreciate that this complex and thorough process

was started and continues with bipartisan support.

You may be aware of my credentials from previous appearances before you, so

rather than take your time, I will briefly state that I am a nuclear scientist and

engineer by profession. Before coming to the NRC in 1996, I was Professor of Nuclear Engineering Sciences at the University of Florida, Director of the Innovative

Nuclear Space Power Institute (INSPI)—a national consortium of industries, universities and national laboratories—and President and Principal Engineer of Florida

Nuclear Associates, Inc. My experience includes thirty-four years designing, researching, teaching, training, evaluating and managing the engineering, technology

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and economics of the peaceful uses of atomic energy. I have been formally trained

in and have practiced nuclear medicine in both academic and clinical environments

and have also owned and operated a few small businesses.

To the above, I have added 5 years of regulatory experience, participating in the

exercise and direction of the Commission’s licensing and regulatory functions. The

mission of the Nuclear Regulatory Commission is to ensure adequate protection of

the public health and safety, the common defense and security, and the environment

in the use of nuclear materials in the United States of America. This mission is carried out by an exclusively regulatory mandate. If confirmed, I pledge to continue to

carry out this mandate and to work for a consistently more effective and efficient

regulatory framework. There is no doubt that the people of the United States want

and must benefit from effective regulatory operations that assure safe nuclear

power, radiological and medical industry activities.

The issue of effective regulation touches every American in our increasingly technological society. The effects of a safety-focused, efficient NRC regulatory framework

are applicable across the board, to nuclear power reactors, to fuel manufacturing facilities, to nuclear medicine and the radiological industry, to the safe handling,

transportation and storage of radioactive wastes, and to the NRC itself.

During my first term as Commissioner, many of NRC’s activities were centered

on the safe operation and license renewal of existing nuclear power plants. The NRC

established initiatives to increasingly focus the prescriptive, deterministic regulatory

regime on the most safety-significant matters, employing a more risk-informed and

performance-based approach. By focusing on the most safety-significant matters,

through a risk-informed approach, the NRC has developed a more effective licensing, inspection and enforcement process. Now, it appears that the challenge of new

power reactor applications could be added to the Commission’s deliberations. I am

prepared to face both the existing and the new challenges with the requisite accountability and transparency.

The Commission is also responsible for assuring that the people of the United

States, and the Congress as their representatives, are fully informed of how its responsibilities are discharged, and for maintaining its decisionmaking process fully

accessible to all concerns. I have been, and will continue to be, especially attentive

to this responsibility.

I would be honored by the opportunity to help the Commission address these

issues in a manner consistent with the responsibilities assigned by the Congress to

the Agency. If confirmed, I will assume the Office of Commissioner of the Nuclear

Regulatory Commission fully cognizant of these obligations and pledging to discharge them to the best of my ability.

Mr. Chairman, Senators, thank you. I am prepared to answer any questions that

the committee might have.

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RESPONSES OF NILS J. DIAZ TO ADDITIONAL QUESTIONS FROM SENATOR CORZINE

Question 1. The September 11th terrorist attacks have focused attention on the

potential vulnerability of U.S. critical infrastructure. As a general matter, how do

you assess the vulnerability of U.S. commercial nuclear reactors to terrorist attacks?

Response. Nuclear power plants are designed, constructed, and operated with

many safety features for the protection of public health and safety, such as robust

containment buildings, redundant safety systems, and highly trained operators.

They are among the most hardened industrial structures in the country and are designed to withstand extreme events, such as hurricanes, tornados and earthquakes.

All NRC licensees with significant radiological materials have emergency response

plans to enable the mitigation of impacts on the public in the event of a radioactivity release. These emergency plans include provisions for the coordination of

State, local and Federal actions to enhance the protection of the public. However,

the NRC requirements for public protection do not specifically incorporate the consequences of large aircraft impacts such as those used in the September 11, 2001,

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terrorist attacks on New York and Washington. Detailed engineering analyses of a

deliberate large airliner crash have not yet been performed, but I understand the

Commission intends to critically review pertinent information, and I support this effort.

If confirmed, I intend to consider this issue as a priority for review and deliberation.

Question 2. Recent reports have questioned the adequacy of the NRC’s Operational Safeguards Response Evaluations. What is your assessment of the adequacy

of the OSREs?

Response. The NRC has been considering improvements to its safeguard programs

for nuclear power plants. The Operational Safeguards Response Evaluation (OSRE)

program, which is performance-based, was designed to improve security inspection

efforts by using force-on-force exercises conducted by licensees as a method of evaluating their response capabilities. While licensees are responsible for identifying

vulnerabilities in their security programs, their tactical response capability has been

enhanced by NRC’s OSRE program. This program has been revised and improved

over time as new information was learned, and it has proven to be effective in evaluating licensee programs to meet design basis threats. The OSRE program has identified a number of weaknesses in licensee performance. Where weaknesses were

identified, NRC ensured that corrective actions were taken.

NRC security and safeguards oversight activities are not limited to the OSREs.

The NRC has and will continue to implement the baseline safeguards inspection

program conducted by NRC inspectors, which includes reviews of areas such as access authorization, access control measures, audit programs and responses to contingency events.

A reassessment of the adequacy of the OSREs and other elements of NRC’s safeguards requirements will be conducted, as discussed in Question 3 below.

Question 3. In July, the NRC announced it was starting a 1-year pilot program

of the Safeguard Performance Assessments. It has been reported that the SPA will

be used to determine if the SPA has merit as a possible replacement for the OSRE.

Do you think that would be a good idea?

Response. It is my understanding that a decision to replace the OSRE with the

Safeguards Performance Assessment (SPA) has not been made. Earlier this year,

the Commission recognized that improvements could be made to its safeguards activities and, therefore, decided to consider alternative potential improvements to the

safeguards evaluation process. One approach that is being pursued is the SPA pilot

program, which will be conducted in addition to the ongoing OSRE program. For

the year 2002, the Commission approved conducting six OSREs and eight SPAs. At

the conclusion of this program, a comprehensive review of the results will be conducted. One aspect of this effort will be an evaluation of the effectiveness of safeguards requirements and the oversight process.

If confirmed, I intend to objectively evaluate the agency’s safeguards and security

requirements and oversight programs, including the results of the SPA pilot program, OSREs, and the lessons learned from the terrorist attacks on America, and

work with the Commission to finalize a decision on our licensees’ safeguards and

security requirements.

Question 4. One of the ideas currently under consideration in Congress is Federalization of airport and airline security. Do you think that Federalization of security at nuclear reactors is an idea that Congress should consider? Are there any

other security-related ideas or additional authorizations that you believe that Congress should consider?

Response. Federalization of security at nuclear reactors has been previously considered as part of the agency’s safeguards and security programs. For example, in

1976 the NRC conducted a study, the Security Agency Study, which was transmitted to Congress on August 19, 1976. This study examined whether security

forces should continue to be employed by individual licensees with reliance on local

law enforcement personnel for emergency assistance or whether a Federal security

force should be created within the NRC to perform security functions. The Security

Agency Study concluded that the creation of a special security force would not result

in a higher degree of guard force effectiveness than that which could be achieved

through the use of private guards who have been trained and properly certified. To

this day, this conclusion has been in effect.

Recently, the Commission made several legislative proposals to the Congress to

provide Federal authority in the safeguards and security area. These recommendations would 1) authorize guards at NRC-licensed facilities to carry and use weapons

to protect property of significance to the common defense and security located at facilities owned or operated by a Commission licensee; 2) make it a Federal crime to

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introduce dangerous weapons, explosives or other dangerous instruments into facilities subject to NRC’s licensing or certification authority; and 3) make it a Federal

crime to commit certain acts of sabotage during the construction of a production,

utilization, or waste storage facility. I believe it would be appropriate for Congress

to consider these recommendations.

Furthermore, even before the September 11th attacks, I had urged that we study

how the term ‘‘enemies of the state’’ (10 CFR 50.13 ‘‘Attacks and Destructive Acts

By Enemies of the United States; and Defense Activities’’) has been interpreted by

the agency. I believe that in light of the terrorist attacks of September 11, 2001,

it is appropriate for that interpretation to be reassessed, as well as other ideas regarding Federalization of security.

If confirmed, I am ready to work with my fellow Commissioners and the Congress

to consider what is necessary for the common defense and security as applicable to

nuclear reactor safeguards.

RESPONSES OF NILS J. DIAZ TO ADDITIONAL QUESTIONS FROM SENATOR REID

Question 1. In your view, what is the role of the Nuclear Regulatory Commission

(NRC) with respect to site suitability, licence application, waste acceptance and closure of a geologic repository?

Response. My understanding of the NRC’s role for the issues cited above is as follows:

a) Site Suitability: The NRC role is to provide preliminary comments on the sufficiency of DOE’s at-depth site characterization and waste form proposal information

which could be used to support the License Application. NRC is required by statute

to conduct prelicensing actions, including interactions with Department of Energy

(DOE) and other stakeholders to provide the basis for any comments. NRC also is

required to comment on the required Draft Environmental Impact Statement (DEIS)

which accompanies a Site Recommendation. The NRC’s initial comments on the

DEIS have been provided to DOE and made public.

b) License Application: NRC has established procedures to receive and review license applications for completeness. If an application is submitted, the NRC must

determine whether it is complete. If it is complete, NRC would docket it and notify

the public. NRC would then conduct a thorough safety review of the application and

publish its results in a safety evaluation report. NRC would also determine whether

it is practical to adopt DOE’s Environmental Impact Statement and would conduct

a formal hearing before a licensing Board. Then, the Commission would, after deliberation on the evidence presented, including the findings of the Board, make a decision on the application, with respect to whether or not to authorize construction.

c) Waste Acceptance: NRC review and approval would be required before any

waste is authorized to be received at the site. A process similar to the process for

a construction authorization discussed above would be followed. DOE would have to

update the safety analysis report and the NRC would conduct a new hearing to

make a decision as to whether to approve receipt and possession of waste onsite

based on compliance with the EPA standard. The NRC would conduct inspections

to assure that the waste received was in compliance with the specifications contained in the application.

d) Closure: NRC review and approval of DOE’s amendment for closure would also

be necessary. NRC would repeat the process discussed above and the DOE’s amendment would include an appropriate update with any new information.

If confirmed, I intend to make a fair, open-minded and objective evaluation of the

information on the record with respect to site suitability and, if an application for

a geologic repository is submitted, and on any decisions on a license application concerning construction, waste acceptance and closure of a geologic repository.

Question 2. Do you believe that the NRC should require full-scale testing of casks

used for the transportation of high-level nuclear waste?

Response. The NRC staff believes the current regulatory approach of relying on

modeling, analysis and/or physical testing, as well as scale model testing of transportation casks, is adequate to demonstrate the acceptability of the cask design and

compliance with the requirements of 10 CFR 71 without requiring that all casks be

subjected to full-scale testing. The casks are required to pass the design basis accident testing requirements of 10 CFR 71 which are rigorous and include a 30 foot

drop test on an unyielding surface, followed by puncture, fire, and submersion tests.

The staff is also initiating a new study, referred to as the Package Performance

Study, which will examine the ability of transportation casks to withstand severe,

beyond design basis accidents. This study is planned to include physical testing to

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evaluate the cask’s performance under accident conditions more severe than the hypothetical accident tests. The staff will use the results of this study to verify and

validate the transportation accident modeling and analysis, and will propose any

changes in the regulatory approach, as appropriate. In addition, the staff is following closely the examination of the recent Baltimore tunnel train fire to learn any

information that should be considered relevant to NRC requirements.

If confirmed, I will review the results of staff analyses to ascertain the adequacy

of the approach, and will also assess the results of the tests to ensure that adequate

protection of the public is maintained. If I conclude that additional full-scale testing

is necessary, I will make such a recommendation to the Commission.

Question 3. If the evidence presented by the Department of Energy in their licence

application for Yucca Mountain appears to indicate the health and safety of Nevadans cannot be secured, would you be willing to disapprove a license? What type of

evidence do you believe is sufficient to disqualify the site?

Response. I will disapprove a license application for Yucca Mountain if adequate

protection of health and safety cannot be secured for Nevadans. The decision to approve or disapprove will be made solely upon an assessment of the safety merits

of the application and of all pertinent information.

If confirmed, I will insist that the information provided is comprehensive, valid

to state-of-the-art standards, and that DOE has satisfied the burden of proof that

EPA’s standards will be met.

Question 4. The Environmental Protection Agency’s radiation protection standards

for the Yucca Mountain site limit the compliance period to 10,000 years. If the maximum exposures are shown to occur after 10,000 and they are larger than the standards set by the EPA for the first 10,000 years of the repository, should the Nuclear

Regulatory Commission consider disqualifying the site?

Response. The Energy Policy Act of 1992 required the EPA to establish specific

radiation protection standards for a mined geologic repository at Yucca Mountain.

The Act requires that the NRC make an assessment of the application to ensure

compliance with EPA standards. In June, 2001, the EPA promulgated its standards

which established a 10,000 year compliance period. Under the Act, the EPA standards, and NRC’s conforming regulations, applicable to a repository at Yucca Mountain, establish the standard for adequate protection of the public health and safety.

Presently, the EPA standards, including the 10,000 year compliance period, are

being challenged in the courts. It is possible that this could result in changes that

would require a new determination of adequacy by the NRC. Also, the U.S. Congress may determine, based on pertinent health and safety information, that a different compliance period is necessary.

If confirmed, I will be bound by the NRC regulations and the EPA standards applicable to Yucca Mountain as they stand at the time of decisionmaking.

Question 5. Reports indicate that the proposed pebble bed modular reactors would

be built without a containment structure. In light of the recent terrorist attacks in

New York City and Washington, DC, do you think the Nuclear Regulatory Commission should require containment structures for these designs?

Response. The Commission has required that a containment structure be included

for all licensed light water reactors (LWRs) as a last physical barrier for protection

against the release of radioactivity. As more detailed information is acquired for potential accident scenarios for pebble bed modular reactors (PBMR), decisions about

the necessary protective systems and structures will be made. I believe that the protective systems for the PBMRs should be capable of providing an equal or greater

level of protection against the release of radioactivity as that provided by LWRs. Additional requirements could be needed based on analyses of the recent terrorist attacks.

Question 6. In light of the recent terrorist attacks and the reported failure of

many plants during NRC training exercises, should the NRC reconsider implementing a self-regulated, industry training program?

Response. The NRC has been considering improvements to its safeguards program

for nuclear power plants. The Operational Safeguards Response Evaluation (OSRE)

safeguards program, which is performance-based, was designed to improve security

inspection efforts by using force-on-force exercises conducted by licensees as a method of evaluating their response capabilities. While licensees are responsible for identifying vulnerabilities in their security programs, their tactical response capability

has been enhanced by NRC’s OSRE program. This program has been revised and

improved over time as new information was learned, and it has proven to be effective in evaluating licensee programs to meet design basis threats. The program has

identified a number of weaknesses in licensee performance. Where weaknesses were

identified, NRC ensured that corrective actions were taken.

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It is my understanding that no decision has been made to replace the OSRE with

the Safeguards Performance Assessment (SPA). Earlier this year, the Commission

recognized that improvements could be made to its safeguards activities and, therefore, decided to consider alternative potential improvements to the safeguards evaluation process. One approach which is being pursued is the SPA pilot program,

which will be conducted in addition to the ongoing OSRE program. For the year

2002, the Commission approved conducting six OSREs and eight SPAs. At the conclusion of this program, a comprehensive review of the results will be conducted.

One key aspect of this effort will be an evaluation of the effectiveness of safeguards

requirements and the oversight process.

NRC security and safeguards oversight activities are not limited to the OSREs

and the SPAs. The NRC has and will continue to implement the baseline safeguards

inspection program conducted by NRC inspectors which includes reviews of areas

such as access authorization, access control measures, audit programs and responses to contingency events.

If confirmed, I intend to objectively evaluate the NRC’s safeguards oversight activities including the SPA pilot program and the OSREs, and work with the Commission to finalize a decision on whether to implement a self-regulated, industry

training program.

Question 7. If economics will play the greatest role in the decision to license and

build new nuclear reactors, what are the most important factors affecting the economic competitiveness of proposed and existing nuclear power plants?

Response. Economics will play a dominant role in the industry decision to build

a new nuclear power plant, but the Commission has no statutory role in aiding the

industry’s economic decision. NRC has the responsibility to license and regulate nuclear power plants, and to maintain a regulatory regime that, first and foremost,

protects the public health and safety, and the environment. I believe it must do so

in an efficient and effective manner.

Although the intricacies of business decisions are outside our role as a health and

safety regulator, I would expect that the factors which are an important part of the

business decision associated with a new electricity production facility would include

a broad range of issues. One of the most important considerations would logically

be the need for electricity in a specific area of the country. Other considerations

would likely include the costs associated with planning, construction and operation

of the facility; an evaluation of alternatives for electricity production such as natural

gas, coal, or purchase agreements with other producers; State, local and Federal license and permit approvals; and the public environment or attitudes related to the

primary alternatives being considered.

Question 8. Do you expect the nuclear power industry to apply for a license to construct a new nuclear power plant within the next 10 years? If so, do you expect that

this will be a pebble bed modular reactor, a conventional light-water reactor, or another type?

Response. The industry has expressed their intention to explore the addition of

new nuclear power plants. There are various possible scenarios, but it appears that

a new power plant within the next 10 years is not out of the question. The type

of reactor that could be selected would depend on factors such as the need for power,

plant economics as well as other industry requirements, including the lead time for

plant operation, and NRC’s licensing requirements. In the short term, utilizing the

existing certified light water designs could expedite bringing a new plant online. On

the other hand, applications for new advanced designs, such as the pebble bed modular reactor, could necessitate significant analysis but could offer other advantages.

STATEMENT OF PATRICK HAYES (PETE) JOHNSON, NOMINATED TO BE CO-CHAIRMAN

OF THE DELTA REGIONAL COMMISSION

Mr. Chairman and members of the committee: Thank you for the opportunity to

appear before you this morning as you consider President George W. Bush’s nomination of me as Federal Co-chairman of the newly created Delta Regional Authority.

I am especially appreciative and humbled by my long time friends Senator Thad

Cochran and Senator Trent Lott being here today in support of my nomination. In

fact it is they who recommended me to the President and should this committee

choose to recommend me to the full Senate I will work diligently to live up to their

expectations and those of the President as well as those of this committee and the

entire Congress.

As a point of personal privilege I would like to take this opportunity to introduce

to the committee my family who is here with me today. My wife Margaret of 31

years, our daughter Mary Margaret Johnson who currently lives and works in AtVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00280 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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lanta and Anne Clark Downing and her husband of 3 weeks Steve Downing. They

too live and work in Atlanta. The weekend Anne Clark and Steve were married

Mary Margaret became engaged and we are excited about having another son-inlaw.

When I was first approached about this position I said I was not interested but

after prayerful consideration and talking with those whose opinions I value it became apparent that I could not pass up the opportunity to make a positive impact

on the lives of the people throughout our region for generations to come. When I

was a young trust officer of our home town bank I was charged with settling the

estate of one of our prominent local elected officials. When I sat at the desk he toiled

over for his entire life I noticed a small piece of paper under the glass on top of

his desk and on it he had typed ‘‘What you do for yourself dies with you and what

you do for others lives on.’’ Indeed, as I come before you today hoping you will find

favor in my nomination I come with a desire to be part of building an economy in

our region that will change the lives of our citizens for generations to come.

Public service in my family is not a casual undertaking. In fact I am the third

generation in our family to be involved in public service. My grandfather was a

Member of Congress serving the 6th District of Mississippi in 1918 through 1922.

He returned home to serve our State as a Judge and later Governor. My uncle

served our State as Lt. Governor and Governor and I have served our State as State

Auditor and our nation as State Director of USDA’s Farmers Home Administration.

I spent the early years of my life on a small farm in south Mississippi. My family

was unable to put me through college however I graduated from the University of

Mississippi in 1971 after working my way through waiting tables and a variety of

other jobs. Law school was no easier. I complete night law school while holding

down a full time job with the First National Bank of Jackson, Mississippi. At age

26 I was named to head one of the State’s largest trust departments with the Bank

of Clarksdale in Clarksdale, Mississippi.

For almost three decades I have been active in trying to make our community,

State and region a better place to live. The Delta Regional Authority holds great

promise for our region and I believe that with your help we can change the lives

of millions of Americans for generations to come.

Again, thank you for the opportunity to appear before you today. I’ll be glad to

try and answer any questions you may have.

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RESPONSES OF PATRICK HAYES (PETE) JOHNSON TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. Please explain in detail the operation of Correction Systems of Mississippi, Inc. Please include the explanation your relationship to the corporation before your nomination as Federal Co-Chair of the Delta Regional Authority and how

the relationship will change if confirmed to the position.

Please include in your response information on the following:

a) ownership interest in Correction Systems;

b) payment of management fees to you by Correction Systems;

c) dividends received/to be received by you from Correction Systems;

d) promissory notes issued to you by the company; and

e) any other relevant information regarding your relationship with Correction Systems.

Response. As State Auditor of Mississippi from 1988 to 1992 my staff conducted

a study concerning the feasibility of privatizing correctional facilities. The conclusion

was that there would be substantial savings to the State if privatization was implemented. Two years after leaving office a State Senate committee called and asked

me to appear before it and discuss my findings. At that time the State was under

a court order to relieve prison overcrowding and a Federal Judge had imposed a

penalty on the State of $500 per inmate per day. During conversations with Department of Corrections staff I was asked if I knew of anyone who could provide a restitution correctional facility for female prisoners in the Jackson, Mississippi area.

I personally embarked on the task and formed Correction Systems of Mississippi,

Inc. Which now leases the facility to the State of Mississippi. I own 100 percent of

the company. I am compensated in the form of a management fee which is paid on

a monthly basis. Should I be confirmed by the Senate I will withdraw from active

participation in the company at which time any compensation received by me from

the company will be in the form of dividends. Presently the company owes me funds

loaned to it by me which were used by the company to settle contractor claims. The

company pays me $5,415.10 per month to service that debt and I in turn pay to Valley Bank $3,301.70 per month. The contract with the State will expire in 3 years

unless re-negotiated prior to that time.

Question 2. Please explain your relationship with the Clarksdale Country Club.

Please include in your response:

a) any ownership interest you have had or currently have in the organization;

b) your current relationship with the club;

c) a detailed description of the Clarksdale Country Club’s policy for voting on new

prospective members including past practices and current practices;

d) a detailed description of current or past Clarksdale Country Club by-laws or

practices that may have discriminated against persons based on race, creed, color,

religion, or sex; and

e) any other relevant information regarding your relationship to or membership

in the Clarksdale Country Club.

Response. Over the past 25 years I have been a member of the Clarksdale Country Club. When I left Clarksdale in 1988 to assume the State Auditor post in Jackson, Mississippi I sold my stock. Upon moving back to Clarksdale in 1991 my wife

was given stock in the Country Club which is now in her name. Twenty 5 years

ago any 3 members could deny anyone membership for any reason and a prominent

local accountant was denied membership for what some of us thought was because

he was Jewish. I was part of a group that led an effort to change the by-laws so

that this would not happen again. The negative votes requirement was raised to 25

and since that time a number of our Jewish friends have become members. Recently

an African American physician applied for membership. He received 25 negative

votes and was denied membership. Once again I joined an effort to change the bylaws to raise the threshold so that a small group could not thwart the will of the

entire membership. Our proposal to raise it to 200 was too ambitious and the membership voted the change down. Since that time I have successfully negotiated a

compromise with those opposing the 200 requirement. The compromise included

that those opposed to the 200 requirement would recruit, if necessary, sponsor and

support an African-American family in the Clarksdale Country Club.

Question 3. Please detail your service as chairman of the Mississippi Marketing

Counsel. Please include in your answer your role and responsibilities as chairman.

Was this an appointed position? If so, who appointed you?

Response. I was appointed to this position by Governor Bill Allain. At one time

it had the responsibility of marketing and promoting Mississippi products however,

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upon assuming the position I realized that it essentially had no power. I convened

the counsel on two may be three occasions and concluded that it was not a good

use of the Taxpayers money and recommended that it be abolished. To my knowledge my recommendation was eventually followed.

Question 4. Please detail your service as the State Director of the Farmers Home

Administration. Please include in your answer your role and responsibilities as

State director.

Was this an appointed position? If so, who appointed you?

Response. I was appointed by former President Bush to this position in 1992. I

oversaw the farm and rural development programs in Mississippi for USDA. That

included loan and project approval. Loans were made for struggling farmers and low

income housing and grants were made to rural communities for sewer, water and

business and industry development programs. It was one of the largest State offices

in the United States at that time. Since serving in that position the responsibilities

have been divided into separate agencies.

STATEMENT OF BRIGADIER GENERAL CARL A. STROCK, NOMINATED TO BE A MEMBER

OF THE MISSISSIPPI RIVER COMMISSION

Mr. Chairman and members of the committee: I am deeply honored to appear before you as a nominee for membership on the Mississippi River Commission. As a

soldier, an engineer, and a life-long public servant I am excited about this opportunity to serve the nation in this important capacity. Mr. Chairman, I would like

to make a brief statement about the Mississippi River Commission, the Mississippi

River and Tributaries (MR&T) project, and my qualifications for this appointment.

The Mississippi River Commission, established by Act of Congress on June 28,

1879, consists of seven members, all of whom are appointed by the President of the

United States subject to confirmation by the Senate. Three members are Corps of

Engineers officers, one of whom serves as president; one member is from the National Oceanic and Atmospheric Administration; and three members are from the

civilian sector, two of whom must be civil engineers.

From its inception in 1879, the Commission has been charged with the task of

planning and implementing a program of flood damage reduction projects and navigation improvements on the Mississippi River. More recently, project purposes have

been expanded to include environmental restoration. This task continues to be conducted in concert with the myriad of political institutions, individuals, and public

entities which have major interests in seeing that the water resources needs and

opportunities of the Mississippi Valley are evaluated, planned, designed, constructed, and maintained.

As established in 1879, the Commissioners were to serve as advisers in planning

and implementing water resource projects and programs on the Mississippi River

between the Head of Passes below New Orleans to its headwaters. Since 1928, the

Commission has focused on the Mississippi River and Tributaries project, authorized by the Flood Control Act of May 15, 1928, to be implemented under oversight

of the Commission. The MR&T project extends generally from the confluence of the

Ohio River to the Head of Passes below New Orleans and covers portions of seven

States. It receives water from all or portions of 31 States and part of two Canadian

provinces, or roughly 41 percent of the contiguous United States. Effective planning,

design, construction, and operation of the widespread and complex MR&T project

have been assisted greatly by the Commission’s active consultation with the public,

particularly on its semiannual lower Mississippi River inspection trips, and by the

high degree of professionalism that has been developed in its staff.

A major flood on the lower Mississippi River would have catastrophic effects on

the inhabitants of the Mississippi Valley and the economy of the nation were it not

for the protection provided by the levees and other flood control works along the

main stem of the Mississippi and Atchafalaya Rivers. Many have noted that the

comprehensive project on the lower river provided for passage of major floods in

1973, 1983, 1997, and other years without the extensive damage suffered in the

upper river area during the 1993, 1995, and 2001 flood events.

In addition, the navigation features of the project help to maintain the river for

shipping import and export commodities between inland ports and world markets.

I am well qualified to serve as a member of the Mississippi River Commission by

virtue of my education, professional qualifications, experience, and commitment to

public service. I hold a Bachelor of Civil Engineering degree from The Virginia Military Institute and a Master of Civil Engineering degree from Mississippi State University. I belong to a number of engineering societies and am a registered professional engineer in the State of Missouri. I am also a graduate of the Army’s ComVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00297 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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mand and General Staff College and the National War College, institutions that develop leadership, strategic thinking, and decisionmaking in a values-based environment.

In addition to my formal education my 30 years of service in the United States

Army have prepared me for the responsibilities I will assume as a member of the

Mississippi River Commission. Besides extensive service in combat engineer assignments I have three assignments in the Corps of Engineers and considerable experience in engineering and construction from the project to the corporate level. From

1980 to 1983 I served in Mobile District as a Project Engineer multiple projects on

the Tennessee-Tombigbee Waterway in Mississippi and Alabama. I also served as

Resident Engineer on Columbus Air Force Base in Mississippi. My service as a senior officer in the U.S. Army Corps of Engineers has provided me with the opportunity to work with leaders and agencies at the local, State, and national level and

with non-governmental organizations. These relationships coupled with my sound

working knowledge of authorities and legislative processes will enable me to help

fashion balanced solutions to complex problems that best serve the interests of the

people and the nation.

From 1997 to 1999 I commanded the Pacific Ocean Division in Honolulu, Hawaii.

In that capacity I had responsibility for the construction and maintenance of numerous shallow and deep draft harbors, navigation channels, coastal protection structures and flood control ,works—most in environmentally sensitive areas of Alaska

and Hawaii.

From 1999 to 2001 I commanded the Northwestern Division in Portland, Oregon.

The Northwestern Division covers 14 States and has responsibility for two major

drainage basins, the Columbia and the Missouri. While my experience in the Northwest contributed dramatically to my understanding of the economic, engineering,

and environmental considerations of major rivers, it is my experience on the Missouri that will be most valuable to the Commission. I have a detailed understanding

of the Missouri River and its impact on the Mississippi River. During certain periods of the year the Missouri contributes up to 70 percent of the flow of the Mississippi in the reach between St. Louis and Cairo. This fact illustrates the value of

a Commissioner who has an understanding of the interaction between these two

great rivers. Over the past 2 years I served on the Commission as a member-designee. During this time I participated in four inspection trips and became very familiar with the Mississippi River and Tributaries project and those works that make

the system so effective in flood damage reduction and navigation. I have worked

hard to develop a true understanding of the interests of the many groups who use

and enjoy the River and depend on the Corps to address their concerns—navigators,

farmers, sportsmen, port operators, levee boards and drainage districts, environmental interest groups, and others.

If confirmed for this position, Mr. Chairman, I look forward to playing a key role

in enhancing the economic vitality and environmental quality of the Mississippi

River and its tributaries.

Mr. Chairman, for your information, I have attached my complete biography. This

completes my prepared statement.

Again, thank you for your consideration. I would be pleased to respond to any

questions.

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STATEMENT OF MARIANNE LAMONT HORINKO, NOMINATED TO BE ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL

PROTECTION AGENCY

Mr. Chairman, Senator Smith, and distinguished members of the committee:

Thank you for the privilege of coming before you today. I am honored that President

Bush nominated me to be Assistant Administrator for the Office of Solid Waste and

Emergency Response (OSWER) at the US Environmental Protection Agency

(USEPA). I believe that all of the public and private sector positions that I have

been fortunate enough to hold in the past have set the stage for this opportunity

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to serve our country. If confirmed, you have my word that I will bring thoughtful

deliberation, integrity, and enthusiasm to the challenges that loom ahead.

I am especially proud to introduce my husband, Tim Horinko, my children,

Kaitlyn and Hunter, my parents, John and Johanna Maccini, and my in-laws, Terry

and Larry Horinko. Finally, I would also like to thank my many colleagues and

friends who have given so generously of their support and friendship—not just

today, but always.

I am particularly attracted to this opportunity to serve EPA because, thanks to

my father, I probably have some groundwater running through my veins. My dad

is a geologist who worked for many years as a university professor and career civil

servant at the National Science Foundation. He taught me to love science, and by

example, showed me that public service was not merely a job, but a higher calling.

My mother provided strong support and reinforcement of our love of science and curiosity about our natural environment. Their great respect for the natural treasures

of our lands impressed me deeply, and it is because of their early influence that I

chose the protection of the environment as my own profession.

In my testimony today, I would like to share some of the key themes and approaches I would bring to this position, if confirmed. They include: innovation, information sharing, and partnerships.

One of my principal observations is that there has been a sea change in Federal

attitudes and approaches to managing waste since I left EPA. The old command and

control method has been supplemented, in some measure, by partnerships and consensus building as the means of cooperative problem solving.

The expansion of Brownfields approaches to other OSWER programs is a symbol

of that new way of thinking, and it carries the message of productive future land

uses as determined by local communities to all of our waste efforts.

An example of that innovation is the emerging linkage between environmental

cleanup and community revitalization. The Brownfields story is all about a new way

of doing the government’s business. Like Governor Whitman and President Bush,

I wholeheartedly support passage of Brownfields legislation during this session of

Congress. With a strong Brownfields bill and working in tandem with State and

local brownfields efforts, there is no limit to what we can accomplish.

Significant challenges face the EPA work force. Much has been made about the

baby-boomer retirement outflow, and the need for a newly energized and wellequipped work force to address the challenges of the future. We need to build a

work force that cherishes diversity, rewards innovative thinking and creates an atmosphere where programmatic risk-taking is encouraged.

I think that there is also great opportunity on the information side of the equation. More emphasis needs to be placed on ensuring that all stakeholders have access to clear and understandable information about the health and environmental

risks they face. Policymaking cannot and should not exist in a vacuum. I believe

that the people who create Federal regulations should be required to meet face-toface with the citizens whose lives they impact. What better way to experience, first

hand, how the policies we make here in Washington, can affect the comfort and

quality of life in our towns and cities across the United States?

People outside the Agency tell me that it’s impossible to figure out who does what

in government in order to get simple answers to their questions. Through partnerships and collaboration, the sharing of information and practices among our cleanup

programs will reduce the inconsistencies that often plague our stakeholders. If confirmed, I plan to work closely with our State and Tribal partners to ensure that all

cleanups are both protective of human health and the environment, as well as implemented with an eye toward community revitalization.

Finally, given the tragic events of September 11, I feel that I must take a moment

to talk about a key role for the OSWER Assistant Administrator as EPA’s lead on

counter-terrorism. I spent virtually all of that fateful day with Governor Whitman

and the outstanding staff at our Emergency Operations Center on Pennsylvania Avenue. Amid an ocean of chaos, we observed, with wonder and awe, an island of calm,

steady professionals who make up EPA’s emergency response team. These individuals are not only technically and substantively competent, but have pulled together

an organized approach to dealing with the horror of chemical, biological or air attacks on our citizens. When terror struck on Tuesday, they sprung into action and

made certain that the public health and safety of our people were protected and assured. They are truly the unsung heroes of our government. If confirmed, I pledge

to give our counter-terrorism activities the highest priority, and to do all that I can

to make their jobs easier.

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RESPONSES OF MARIANNE LAMONT HORINKO TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. This past July, Resources for the Future released a publication titled

‘‘Superfund’s Future: What Will It Cost?’’ One of the major findings is that considerable work remains to be done at sites already on EPA’s National Priorities List, and

that EPA’s Superfund costs will not decline before 2006 at the earliest. These conclusions are contrary to views that the Superfund program is ‘‘winding down.’’ I am

interested in your understanding of the progress of the Superfund program. What

is the current revenue remaining in the Superfund Trust Fund? How many sites

will be added to the NPL this year? How many NPL sites will achieve construction

complete listing this year? What do you believe is the future of the Superfund Program?

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Response. EPA expects that the balance of revenue remaining in the Superfund

Trust Fund at the end of fiscal year 2001 will be approximately $955 million.

EPA has proposed listing 45 sites on the National Priorities List (NPL) this fiscal

year. EPA has also finalized 29 sites on the NPL this fiscal year. No additional sites

will be proposed or listed in fiscal year 2001.

The Agency is working to complete construction, before the fiscal year ends, at

as many sites as possible to reach the Agency’s goal of 75 construction completions.

While the Agency is making much progress on cleaning up these sites, the Agency

expects the final number of construction completions, for a variety of reasons, to be

lower than the original goal. One key factor affecting the final number of construction completions is that many of the sites with remaining work tend to be more complex, on average, than those already completed. Nonetheless, the Agency is committed to and will continue to work at these and other Superfund sites to ensure

that they are cleaned up as quickly as possible.

As I stated in my testimony, my key themes would be innovation, information

sharing, and partnerships. These concepts will be applied to the Superfund program

through expanding Brownfields, better involving the community in such things as

future land use, and ensuring better access to environmental information. If confirmed, I plan to work very closely with this committee, and look forward to our cooperative efforts to speed Superfund cleanups.

Question 2. Under RCRA, EPA has a statutory responsibility, with the Office of

Federal Procurement Policy, to ensure that Federal agencies and all political subdivisions using appropriated Federal dollars are purchasing products containing recovered content. In addition, there is still a operative Executive Order (no. 13101),

which requires EPA to provide advice to Federal agencies on and require those

agencies to buy environmentally preferable products. A recent GAO report was critical of the implementation of the program, including the availability of useful data

that Congress can use to effectively oversee the program and determine whether the

Agencies are in compliance. Will you support continuation and strengthening of

these procurement efforts?

Response. Yes, I support the continuation and strengthening of the procurement

efforts of Federal agencies and am committed to working with The Office of Federal

Environmental Executive to promote the use and purchase of products made with

recycled content and to assist agencies across the Federal Government, to comply

with the Executive Order 13101.

I recognize that a recent GAO report was critical of the implementation of this

program, and the Agency is reviewing this report carefully. I do know however, EPA

is currently developing a secure, internet-based data base with the names of product

suppliers and manufacturers that will be accessible by users from any web browser

connected to the internet. This project ensures that EPA will be better able to provide procuring agencies with up-to-date information they can use to buy recycledcontent products.

Question 3. Recently, EPA issued a Chemical Safety Advisory which said, at this

time of heightened alert, the U.S. Environmental Protection Agency (EPA) in coordination with the U.S. Department of Transportation and the Federal Bureau of Investigation (FBI) suggests that those who manufacture, distribute, transport or

store hazardous chemicals should be especially vigilant regarding the physical security of those chemicals.

You may be aware of the accident prevention provisions (section 112(r)(7)) of the

Clean Air Act, as amended by PL106–40. OSWER has been given the primary responsibility at the Agency for implementing these provisions, which include providing access to information on the offsite consequences of accidents, including those

caused by criminal or terrorist acts, to local emergency response personnel, qualified

researchers and limited access to the public. That law also requires EPA to assist

the Attorney General in preparing and submitting to Congress an overdue report

on the vulnerability of the facilities mentioned above to criminal and terrorist activities.

Question 3a. What steps will you take to ensure that the owners and operators

of facilities addressed in the Agency’s Advisory have acted or are acting to comply

with their general duty under section 112(r)(1) to identify hazards, design and maintain safe facilities, prevent releases and to minimize the consequences of releases

that do occur?

Response 3a. I look forward to exploring with EPA and other government decisionmakers the policy, resource and legal issues relevant to determining what steps

should be taken to safeguard hazardous chemicals from criminal and terrorist acts,

and will keep you informed of our progress. To date, EPA has taken prudent steps,

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tential for criminally caused releases and to advise them of available measures for

increasing site security. The Agency has yet to take an enforcement action against

any facility for failure to adequately secure its site.

EPA is also assisting the Department of Justice in its study of the vulnerability

of chemical facilities to criminal and terrorist activity and current industry practices

regarding site security. From the study, we expect to learn more about possible

measures for increasing site security and to communicate those measures to industry.

Question 3b. Will you provide the committee with a regular update on the Agency’s efforts to ensure that this general duty requirement is being actively implemented?

Response 3b. If confirmed, I will certainly update the committee on the Agency’s efforts to ensure that this general duty requirement is being actively implemented

4. Question: I am pleased by your enthusiasm for recycling. At today’s hearing, you

spoke of recycling being a ‘‘gateway’’ to engage consumers. I agree and look forward

to working with you on this important issue. How can we promote an increase in

nationwide recycling efforts? What additional administrative actions can be taken

by EPA that are not already in place? What type of legislation is necessary at the

Federal level?

Response. To increase recycling nationally, attention must be directed to two

fronts simultaneously: fostering the viability of markets for secondary or recycled

materials; and helping local governments learn how to reduce the cost burden of collecting and processing recyclable materials. In partnership with government and industry, EPA can foster extended product responsibility and product stewardship, encouraging voluntary efforts by manufacturers to reduce waste, use secondary materials as feedstock, and to take back products at the end of their useful life. Through

training and outreach, EPA can help transfer lessons learned from one community

to others. EPA can publicize new and expanding recycling technologies. Assistance,

outreach, and education can go far to advance recycling across the natin. If confirmed, I look forward to working with the committee to advance the cause of recycling.

Question 4. I am pleased by your enthusiasm for recycling. At today’s hearing, you

spoke of recycling being a ‘‘gateway’’ to engage consumers. I agree and look forward

to working with you on this important issue. How can we promote an increase in

nationwide recycling efforts? What additional adminstrative actions can be taken by

EPA that are not already in place? What type of legislation is necessary at the Federal level?

Response. To increase recycling nationally, attention must be directed to two

fronts simultaneously: fostering the viability of markets for secondary or recycled

materials; and helping local governments learn how to reduce the cost burden of collecting and processing recyclable materials. In partnership with government and industry, EPA can foster extended product responsibility and product stewardship, encouraging voluntary efforts by manufacturers to reduce waste, use secondary materials as feedstock, and to take back products at the end of their useful life. Through

training and outreach, EPA can help transfer lessons learned from one community

to others. EPA can publicize new and expanding recycling technologies. Assistance,

outreach, and education can go far to advance recycling across the nation. If confirmed, I look forward to working with the committee to advance the cause of recycling.

RESPONSES OF MARIANNE LAMONT HORINKO TO ADDITIONAL QUESTIONS FROM

SENATOR SMITH

Question 1. The Toxic Release Inventory (TRI) data base and public information

program has been in place for some time. Recent addition of the waste services industry to the TRI system appears to invite confusion about the entities responsible

for reported chemical releases to the environment and where such releases actually

occur.

For example, a company shipping waste containing TRI chemicals to an offsite

RCRA Subtitle C TSD facility must report this ‘‘transfer’’ to a permitted facility as

an ‘‘offsite release.’’ This transferred amount is then added to the generator’s actual

releases to air, land, and water to determine the company’s ‘‘total releases.’’ In reality, however, the transferred chemicals were managed at a permitted RCRA facility distant from the community (or even State) which must itself report the TRI

chemicals as a release to the environment where they are located. EPA later corrects for this double counting in determining overall totals. This raises a number

of important questions:

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a) Is this an accurate summary of the current TRI reporting requirement for such

waste transfers?

b) Is this approach required by statute or regulation? If so, please provide specific

citations. If a matter of agency policy, please confirm.

c) Why is a company which transfers TRI chemicals contained in waste shipped

to a permitted RCRA Subtitle C facility for final disposition (which may include disposal or recycling) required to report this transfer as a release to the environment?

d) Isn’t the current reporting requirement likely to confuse and misinform the

local community and other members of the public about releases to the environment

in the geographic area where the transfer originated?

e) Wouldn’t it be more informative to the public to require the company transferring TRI chemicals in the manner described above to report them as a ‘‘transfer’’

to a permitted offsite management facility (e.g.; a RCRA treatment, storage and disposal facility) rather than as releases to the environment?

e) Wouldn’t the alternative approach suggested under Question 5. above improve

TRI program administration efficiency by eliminating the need to later correct for

double counting by the company and the offsite facility?

f) As Assistant Administrator, will you support an improved approach that improves program efficiency and provides more accurate and informative public reporting?

Response. In answer to (a) through (g), as you know, the Toxics Release Inventory

(TRI) is run by EPA’s Office of Environmental Information (OEI), and does not fall

under the responsibility of the Office of Solid Waste and Emergency Response

(OSWER). Pursuant to conversations with your staff, OSWER will work with OIE

to provide detailed responses to your questions. If confirmed as Assistant Administrator, you have my commitment that I will work closely with OEI to achieve improved approaches that advance program efficiency and provide more accurate and

informative public reporting.

Question 2. In 42 USC 9619 (Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the provision on ‘‘response action contractors’’,

provides the following:

‘‘(f) Competition—Response action contractors and subcontractors for program

management, construction management, architectural and engineering, surveying

and mapping, and related services shall be selected in accordance with title IX of

the Federal Property and Administrative Services Act of 1949 [40 U.S.C. 541 et

seq.]. The Federal selection procedures shall apply to appropriate contracts negotiated by all Federal Governmental agencies involved in carrying out this chapter.

Such procedures shall be followed by response action contractors and subcontractors.’’

a) Even though this provision was enacted in 1986, it is my information that EPA

has issued any guidance or regulation to implement this provision in law. To what

extent has EPA implemented this provision, particularly with regard to contracts

and subcontracts for mapping services through guidance to private contractors and

EPA contracting officers or promulgated an EPA Supplement to the FAR or what

will EPA do to assure proper implementation and enforcement of this provision of

law?

b) The ‘‘Brooks Act’’ (40 U.S.C. 541 et. seq.) and the Federal Acquisition Regulations (48 C. F. R. 36.601–4 Implementation) specify that a broad range of mapping

services, including ‘‘Mapping associated with the research, planning, development,

design, construction, or alteration of real property is considered to be an architectural and engineering service and is to be procured pursuant to 36.601.’’ This clearly

provides for use of the Qualifications Based selection (QBS) process for more than

just services related to design and construction. However, there have been numerous instances in which EPA is not using the QBS process for mapping services (See,

for example, SOL U41045, PSA#2900 NDN–186–0172–2551–1, RFQ-GA–01–00004,

RFQ EPA–039–00, and RFQ-RT–98–00065). What is EPA doing, or what does EPA

propose to do, to assure that the law and regulations are properly implemented with

regard to using the QBS process for mapping contracts?

Response for Questions 2a and 2b. EPA has followed Federal contracting procedures in awarding response action contracts. In terms of mapping services, the

Superfund program of OSWER had an Interagency Agreement with the Federal

Emergency Management Agency, and did not procure mapping services directly. If

confirmed, I would be happy to work with this committee to address concerns in this

area to the extent they involve OSWER programs.

Question 3. Is it the policy of EPA to retain contractors to support regulatory oversight of those same agencies who are contracted to other Federal Agencies—specifiVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00322 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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cally under CERCLA and/or RCRA corrective action programs? What is EPA policy

on potential conflict of interest in similar situations?

Response. EPA contract policies do not allow contractors for responsible parties

under CERCLA to perform work for EPA. Contractors can, however, work for multiple Federal agencies, since it is a Federal policy that in a unified Federal Government there is no conflict of interest in this situation. If the committee knows of an

issue in this area, if confirmed, I will work with you to address it.

RESPONSES OF MARIANNE LAMONT HORINKO TO ADDITIONAL QUESTIONS FROM

SENATOR BOND

Question 1. The Office of Solid Waste (OSW) developed a methodology to assess

the potential hazard of organic compounds, which relies upon a criteria of persistence, bioaccumulation and toxicity (PBT). OSW keeps a list of compounds meeting

the PBT criteria. EPA offices, and many States, use the PBT list for various regulatory actions, including recently increased reporting requirements for metals.

There is concern in the scientific community over the appropriateness of applying

the PBT methodology to metals. Scientific experts, including EPA scientists, described the problems of applying the PBT methodology to metals at an EPA co-sponsored ‘‘Experts Workshop’’ in January 2000. In May 2000, the EPA Science Advisory

Board used an Advisory Opinion on risks surrounding smelters to take the opportunity to state that EPA’s proposals to classify metals as PBTs was problematic because the methodolgy did not accurately describe metals’ environmental characteristics.

In July 2000, the House Science Committee, in a bipartisan letter signed by the

Majority and Ranking members of the full committee and appropriate subcommittee, noted the scientific controversy. The committee strongly urged EPA to

seek independent peer review and refer the question of the scientific appropriateness of applying the PBT criteria to metals to the SAB before deciding whether to

include metals in any of the Agency’s PBT programs or lists.

In the fiscal year 2001 VA/HUD Conference Report, I proposed, and the conferees

and Congress accepted, language urging EPA to submit the question of PBT and

metals to independent peer review. Specifically, we urged EPA to seek independent

peer review and refer to the SAB the question of the scientific appropriateness of

applying the PBT criteria and methodology to metals before any application of the

PBT criteria and methodology to metals.

EPA subsequently disregarded these congressional directives by finalizing increased reporting regulations based upon application of the PBT methodology to

metals without ensuring the scientific validity of the action by submitting the issue

to independent peer review.

Question 1a. If confirmed, will you support any EPA actions which disregard my

VA/HUD language or Congress’ bipartisan direction to submit the question of the

appropriateness of applying the PBT methodology to metals for independent peer review by the SAB?

Response. If confirmed I have no intention of disregarding the direction you supplied to EPA.

Question 1b. If confirmed, would you support any lesser action by EPA, such as

a consultation, which would fail to meet EPA’s Independent Peer Review Guidelines?

Response. I would seek to ensure that EPA’s peer review guidelines are met.

Question 1c. If EPA is confident of the scientific underpinnings of the application

of the PBT methodolgy to metals, what does the Agency have fear by submitting

the issue to the SAB for peer review?

Response. The specific charge to the SAB is currently being worked out within

the Agency.

Question 1d. If confirmed, what actions will you take to ensure that scientific discussion and debate on this issue within EPA, especially by the Office of Solid Waste,

is open, free and fully represented alongside other non-scientific and policy concerns?

Response. If confirmed, I assure you that EPA will have an open and fully representative discussion and debate on all concerns.

Question 1e. If confirmed, will you take steps to discourage EPA regional offices,

as well as States and localities, from characterizing metals as PBT substances before EPA completes SAB review? Answer: OSWER is trying to focus the waste minimization program on reducing hazardous constituents of highest concern from the

waste streams sent for disposal. In carrying out that program, the Agency will cerVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00323 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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tainly work to keep regions, States and localities from inappropriately characterizing any substances.

Question 2. This summer, EPA announced its intention to issue an action plan

in response to recommendations made by Resources for the Future (RFF) in a study

estimating the Federal costs of Superfund from fiscal year 2000 through fiscal year

2009. The RFF study raised some very serious questions about where Superfund

dollars are being spent and how much is going to site cleanup. Many other studies

of the Superfund program, including those done by the US General Accounting Office, the Congressional Budget Office, and Business Roundtable, have found similar

program and fiscal management problems, while also concluding that the program

has matured and will not require the same level of funding needed in the past.

Of the four major recommendations made by Resources for the Future, two concerned the need for EPA to get its financial house in order. A third focused on the

uncertainty surrounding the nature, number and cost of future NPL sites. Clearly,

a number of significant questions remain about current program management as

well as the future workload and makeup of the program. A Superfund action plan

also presents opportunities for this Administration to revitalize and expand on

Superfund Administrative Reforms begun in the past reforms aimed at making

Superfund fairer, more efficient, and more cost-effective.

Question 2a. Will you have an opportunity to shape the Superfund action plan before the EPA Administrator approves it?

Response. I have met with the principal author of the Resources for the Future

report on Superfund costs and have been briefed on the action plan the Agency is

developing. I believe that the action plan will address the key recommendations in

the report, as well as address some of the related issues facing the program. If confirmed, I plan to take an active role in refining and implementing the Agency’s Superfund action plan, and look forward to working closely with this committee on

the future of Superfund.

Question 2b. What are your priorities for Superfund administrative reform?

Response. If confirmed, my key administrative reform themes will be innovation,

information sharing, and partnerships. These concepts will be applied to the Superfund program through expanding Brownfields, better involving the community in

such things as future land use, and ensuring better access to environmental information. I will also take an active role in implementing the Superfund action plan.

I plan to work very closely with this committee to improve the Superfund program.

Question 3. In 1992, Congress directed EPA to revise the Mixture and DerivedFrom Rule. On May 16, 2001, EPA issued final regulations re-promulgating the

original rule with one minor new revision.

In the preamble supporting the rule, the Agency expressed it’s intent to ‘‘continue

to pursue actions to reduce any overregulation of low-risk wastes arising from the

mixture and derived-from rules.’’ Specifically, the preamble discusses EPA’s intent

to develop ‘‘two targeted exemptions: one for certain solvents destined for wastewater treatment and discharge under the Clean Water Act, and another for slagged

combustion residues from hazardous waste combustors.’’ The preamble also describes other targeted exemptions being assessed for development. Materials supporting EPA’s 2002 budget request also discussed the Agency’s intent to develop approaches to exempt low-risk wastes from full Subtitle C regulations.

The environmental management world has changed dramatically since waste

management regulations were promulgated in the early 1980’s. Industry has invested enormous sums in improved waste management infrastructure and commitment to environmental protection. State program capabilities have increased significantly in their ability to manage wastes. Finally, the breadth of other statutory and

regulatory programs such as the Clean Air Act, Clean Water Act, and the Superfund

program have matured such that many waste streams are also regulated under nonRCRA authorities. We support EPA’s intent to revisit RCRA regulations, particularly the mixture and derived-from rules, to tailor them to better reflect current

wastes and waste management capacities. However, since these statements were

made prior to your nomination as Assistant Administrator:

Question 3a. What are your goals for addressing any over-regulation of low-risk

waste by the current RCRA program? Do you have thoughts on a timetable for such

proposals?

Response. I am firmly committed to examining possible over-regulation of low-risk

waste streams that are subject to the RCRA hazardous waste program, and I am

committed to exploring the possibility of regulatory change in this area. I am certainly aware of the concerns industry has expressed, and I know EPA staff have

met with industry representatives to better understand their perspective. If confirmed, I plan to continue that dialog. EPA has also invited States to participate

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in the discussions, and has also notified waste management industry and environmental groups about planned activities, and will invite a broader participation from

these groups as the proposals progress.

Regarding timeframes for proposed rulemakings, EPA expects to propose at least

a first round of changes in 2002. One category of wastes high on EPA’s list is certain

solvents undergoing wastewater treatment under the Clean Water Act. In addition,

EPA is also evaluating other possible targeted exemptions. Depending on what preliminary analyses reveal, EPA hopes to develop additional proposals in 2003.

Question 4. When we passed the original Resource Conservation & Recovery Act

twenty-five years ago, our goal was ‘‘to recover valuable materials and energy from

solid waste’’ as well as to assure that hazardous waste was managed to protect

human health and the environment. Since then, EPA has used its authority to

greatly improve waste management. In fact, most of the work that RCRA explicitly

assigned OSWER in this regard has been accomplished. However, work to encourage the recovery of materials and energy before they become waste has barely

begun.

The former Administration, through initiatives such as Project XL and the Common Sense Initiative, demonstrated that there are other ways to obtain desired environmental performance without the inflexibility of command-and-control regulations. These initiative as well as a series of reports and studies, have also demonstrated that in some cases, the very regulations promulgated to manage waste

can discourage recycling. Over the last decade the Agency has acknowledged the disincentives to recycling embodied in the RCRA hazardous waste rules, has conducted

numerous studies, has evaluated numerous recommendations with broad, bipartisan

stakeholder support, and yet has failed to take any meaningful action to remedy the

problem. The courts have been very critical of EPA for its overly broad regulation

of the recycling of secondary materials as well. No efforts have been made to conform the recycling regulations to these court decisions. At the same time, industry

has vastly increased its efficiencies in converting raw materials to products. Technological innovation has led to the ability to reuse and recycle formerly discarded materials and to avoid the generation of wastes.

Based on recent work on material flows conducted by the World Resource Institute, work on life-cycle impacts of recycling, landfilling and incineration conducted

by Environmental Defense, and a commentary on overcoming barriers to Waste Utilization prepared by EPA’s own Science Advisory Board, it seems there is both a

need and opportunity to encourage the recovery of materials and energy before they

enter the waste stream, so that material or energy value, that would otherwise be

discarded, would be put to higher and better use.

Question 4a. Can you discuss with us your vision for bringing ‘‘resource conservation and recovery’’ into RCRA?

Response. I see RCRA as having two principal goals: (a) protecting human health

and the environment and (2) reducing waste and conserving energy and natural resources. Although reducing pollutants at their source is EPA’s highest priority for

conservation, recycling is a very close second. I am very eager to promote the recycling of solid and hazardous waste because such recycling makes good economic and

environmental sense. It can conserve virgin resources, and save time and money as

well.

EPA recently has been engaged in an effort to remove or eliminate regulatory disincentives for recycling, while maintaining protection of human health and the environment. EPA’s actions include national rulemakings which have streamlined regulations to encourage recycling for several kinds of wastes, including batteries, pesticides, thermostats, mercury-containing lamps, and circuit boards. EPA is preparing to propose in the next few months a rule which would promote recycling of

cathode ray tubes from computers and televisions, along with mercury-containing

devices. The Agency’s Project Excellence and Leadership (Project XL), the State of

New Jersey’s Goldtrack Program (an XL project), and other projects have allowed

State and local governments, businesses and Federal facilities to develop with EPA

innovative strategies to test better or more cost-effective ways of achieving environmental and public health protection. I believe there are other innovative ways EPA

can increase opportunities for environmentally sound recycling, and look forward to

working with this committee in this regard.

Question 4b. Do you believe that the Agency has enough statutory authority to

revamp its ‘‘definition of solid waste’’ rules to remove the current impediments to

recycling?

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cling. I look forward to continuing these efforts and to work closely with States to

identify and implement further opportunities.

Question 4c. How do you plan to accommodate the ruling of the DC Circuit in the

Association of Battery Recyclers case?

Response. The Association of Battery Recyclers v. U.S. EPA (ABR) decision vacated a portion of an 1998 EPA rule that expanded EPA’s jurisdiction over certain

types of mineral processing materials stored on the land prior to being reclaimed

in production processes. Currently, EPA is finalizing a rule codifying the mineral

processing vacatur, as directed in the ABR Decision. In the final rule preamble, EPA

also intends to discuss plans for a future rulemaking to revise the definition of solid

waste. As discussed above (e.g., XLs), EPA is engaged in a number of efforts to remove or eliminate regulatory disincentives for recycling while maintaining protection of human health and the environment. ABR provides an opportunity to revise

EPA’s approach to jurisdiction over recycling in a way that will further promote recycling of hazardous secondary materials. If confirmed, I look forward to working

with this committee in an effort to implement the ABR decision.

Question 4d. Will these issues be a priority to you?

Response. Yes, I intend to make these issues a priority.

Question 5. Many of the Office of Solid Waste’s regulations have a serious impact

on small businesses. As Ranking Member on the Small Business Committee, I am

always concerned about how EPA handles their obligation to take into account small

business concerns during rulemakings under the Small Business Regulatory Enforcement Fairness Act (SBREFA), or what I call the Red Tape Reduction Act.

Under this law, EPA is required to convene panels to take comments from small

businesses that will be affected by a regulation while the regulation is still in draft

form. Although this provision has proven to help EPA formulate more effective and

narrowly tailored regulations without sacrificing the objective or the benefits to public health of the regulation, there have been rulemakings where EPA did not do as

much as I believed they should.

Question 5a. If confirmed, will you vigorously pursue exploration of small business

concerns during rulemakings, as well as, ensure your office’s full compliance with

SBREFA?

Response. Yes, I will vigorously explore small business concerns during

rulemakings, and ensure full compliance with SBREFA. All of OSWER’s programs

are increasingly reaching out to all stakeholders, including small businesses, to get

their input early in the regulatory development process. Many issues can be resolved during this early participation, which can take place through web-based

interactive dialogs and other innovative methods of reaching specific stakeholders,

and face-to-face meetings and discussions. OSWER will also continue active participation and support of the Deputy Administrator’s quarterly meetings with Small

Business Trade Association Executives. These roundtable meetings are an important channel of communication for the Agency to clarify regulatory interpretations

and obtain early input on activities that impact small businesses.

RESPONSES OF MARIANNE LAMONT HORINKO TO ADDITIONAL QUESTIONS FROM

SENATOR BOXER

ENERGY TECHNOLOGY AND ENGINEERING CENTER (ETEC)/SANTA SUSANA FIELD

LABORATORY

Question 1. EPA has previously taken the position that Department of Energy nuclear facilities such as ETEC at the Santa Susan Field Laboratory in California are

required to clean up contaminated sites to levels consistent with EPA’s CERCLA

guidance (to a one in a million lifetime cancer risk, unless that level cannot be

achieved). EPA may allow a greater risk of up to one in ten thousand, but only if

specified criteria are met.

Recently, EPA has reportedly reversed its position, stating that DOE is only required to clean up radio-nuclides at the ETEC site under the far more lax guidance

in the Atomic Energy Act.

Can you provide assurance that recent reports are erroneous and that EPA

CERCLA guidelines, cleanup levels, and methodology will be strictly applied at the

ETEC site?

Response. Although DOE is using its own authorities under the AEA to clean up

radionuclides at the Santa Susana Field Lab (SSFL), DOE has publicly agreed to

achieving cleanup levels consistent with CERCLA. As you may be aware, EPA has

been providing an independent ‘‘oversight’’ role to guide the DOE’s activities at

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SSFL. EPA’s Draft Scoping Document, which has been submitted to the DOE for

its review, proposes a conceptual survey plan which will provide for cleanup level

determinations consistent with CERCLA. The CERCLA cleanup standard is referenced as a range of 10–6 to 10–4 lifetime cancer risk, where the one-in-a-million

risk level is used as a point-of-departure for beginning the determination of site-specific acceptable cleanup levels. If confirmed, I will work closely with this committee

to ensure that this cleanup is consistent with CERCLA.

Question 2. EPA has also assured me that EPA’s Las Vegas radiation laboratory

would conduct a comprehensive independent radiation survey of the Santa Susana

Field Laboratory. I was also assured that a broad range of radio-nuclides would be

included and that a contractor would not be utilized.

Can you ensure that past commitments will be honored regarding the radiation

survey at the Santa Susana Field Laboratory?

Response. Yes, commitments will be honored regarding the radiological survey at

the SSFL. The radiological survey at SSFL Area IV will be conducted by an EPA

contractor under direct and extensive contract oversight by EPA’s Radiation and Indoor Air Environments Lab at Las Vegas, NV. This arrangement is typically how

EPA conducts investigations at large and complex sites. The survey in this case will

be comprehensive, addressing all radionuclides that may have been used or generated at the site. Based on the magnitude and complexity of the proposed survey,

EPA has significantly increased its resources directed to this project, especially from

within the Lab.

RESPONSES OF MARIANNE LAMONT HORINKO TO ADDITIONAL QUESTIONS FROM

SENATOR CORZINE

Question 1. As you know, Resources For the Future recently completed a major

report on Superfund’s future for Congress. One of the report’s major conclusions was

that a ramp-down of the Superfund program is not imminent. The experience of

New Jersey in recent years seems to bear this out, in that a handful of New Jersey

sites have been added to the NPL each year. As a general question, how do you view

the future of the Superfund program and what do you hope to accomplish as Assistant Administrator?

Response. I believe the Superfund program has an important role in addressing

the nations worst hazardous waste sites and in responding to emergency situations.

If confirmed, my key themes will be innovation, information sharing, and partnerships. These concepts will be applied to the Superfund program through expanding

Brownfields, better involving the community in such things as future land use, and

ensuring better access to environmental information. I also pledge to give counterterrorism activities the highest priority. I am open to new ideas, and would welcome

this committee’s input as well.

Question 2. As you know, New Jersey has more Superfund sites than any other

State in the natin. As of May of this year, 84 of New Jersey’s 111 NPL sites were

not yet cleaned up to the ‘‘construction complete’’ stage. So I was concerned to see

that the fiscal year 1902 budget request reduced the fiscal year 1902 national target

for cleanups to 65. This is well below the 85 cleanups per year that have been accomplished in the last 4 years; it is also below last year’s target of 75. When I asked

Administrator Whitman about this issue, she explained that the reduced target is

due to increased cleanup costs at remaining sites. What is your understanding of

why this target has been reduced? Are more funds needed to maintain the pace of

cleanups?

Response. I agree with Administrator Whitman’s explanation. A key factor affecting the number of construction completions is that many of the sites with remaining

work tend to be more complex, on average, than those already completed. Nonetheless, the Agency is committed to and will continue to work at these and other Superfund sites to ensure that they are cleaned up as quickly as possible. If confirmed,

I plan to engage this committee very closely on this effort.

Question 3. In light of the dwindling balance of the trust fund, what is your view

of the importance of Superfund cost recovery activities?

Response. Cost recovery is obviously very important to the Superfund program.

Since its inception, EPA has achieved nearly $7 in private party cleanup commitments and cost recovery for every $1 spent on enforcement. There have been over

$3.1 billion in cost recovery settlements alone. It is important to continue aggressive

cost recovery efforts. I intend to work closely with EPA’s enforcement program to

not only preserve the dwindling trust fund balance, but to reinforce EPA’s enforcement first policy.

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RESPONSES OF MARIANNE LAMONT HORINKO TO ADDITIONAL QUESTIONS FROM

SENATOR CLINTON

Question 1. If confirmed, will you work closely with me and other members of the

New York delegation with respect to the Agency’s emergency response efforts associated with the horrific terrorist attack on the World Trade Center in New York City

on September11, 2001?

Response. See answer to number 2.

Question 2. Will you work to ensure that all necessary and appropriate measures

are being taken with regard to response efforts at the World Trade Center site to

protect human health and the environment?

Responses to Questions 1 and 2. If confirmed, I will continue to work closely with

you and the New York delegation as EPA addresses the effects of the September

11 attacks. I join with all Americans in honoring the heroic efforts of New York

emergency responders. Their personal dedication and professional expertise deserve

every word of praise that has been spoken in their behalf. I also deeply appreciate

and am proud of the support provided by EPA’s emergency response personnel in

Region 2. EPA has been coordinating with State, Federal, and local authorities to

provide expertise on cleanup methods for hazardous materials, as well as to detect

whether any contaminants are found in ambient air quality monitoring, sampling

of drinking water sources and sampling of runoff near the disaster sites. I participate in daily telephone calls with Governor Whitman and other EPA Headquarters

and Regional personnel to support and coordinate the responses in New York and

Washington. I pledge to work with you and the New York delegation to continue

EPA’s support.

Question 3. Will you work with the delegation and the committee to ensure that

we learn from this experience and make any necessary and appropriate changes to

the Agency’s emergency response capabilities?

Response. Learning all we can from this tragedy will be a high priority of mine.

EPA will perform a complete lessons learned assessment of its operations, and will

share that information with both the New York delegation and the committee. EPA

has already conducted a preliminary needs assessment of the counter-terrorism preparedness and response program. OMB is reviewing those findings. In the meantime, I assure you that EPA and the Administration are committed to a strong readiness capability that will protect all U.S. citizens, including EPA’s own emergency

responders, and the environment.

STATEMENT OF HAROLD CRAIG MANSON, NOMINATED TO BE ASSISTANT SECRETARY

FOR FISH AND WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR

Mr. Chairman, Senator Smith, members of the committee, I am honored and

humbled to appear before you as the President’s nominee to be Assistant Secretary

of the Interior for Fish, Wildlife and Parks, seeking your confirmation vote. I am

deeply grateful for the confidence in me shown by the President and Secretary Norton. I also thank Secretary of Agriculture Ann Veneman for her support.

I appreciate that the committee has taken time to hold this hearing in a time of

great national crisis. As you know, the Department of the Interior’s personnel, including the U.S. Park Police and the law enforcement elements of the U.S. Fish and

Wildlife Service and others have played vital roles in responding to the current crisis. Most regrettably, a U.S. Fish and Wildlife Service employee, Richard Guadagno,

lost his life in the crash of the jet in Pennsylvania. Mr. Guadagno was the refuge

manager of the Humboldt Bay National Wildlife Refuge in my home State of California. He was highly regarded by all who knew him and he embodied the very best

attributes of the talented people in both the Fish and Wildlife Service and the National Park Service.

I am a descendant of Africans, Europeans, and Native Americans. Born in Missouri, gateway to the west, I grew up principally in New Mexico and California,

where I now reside. I’ve spent 42 of the last 47 years living in the western United

States, including, in addition to New Mexico and California, Arizona, Colorado, and

South Dakota.

I received my undergraduate education at the United States Air Force Academy.

Following my graduation from the Academy, I served 2 years as a Minuteman missile launch officer. The Air Force then sent me to law school and I received my law

degree at the University of the Pacific, McGeorge School of Law in Sacramento. I

served in various Air Force judge advocate assignments in the United States and

overseas, including 4 years on the Air Force Academy faculty, in the Department

of Law. During my faculty tour, I was assigned, with several other faculty members,

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to report to the Secretary of the Air Force concerning the state of Air Force compliance with environmental laws on its overseas bases.

After leaving active duty in 1989, I practiced law with a major Sacramento law

firm for 3 years. I was then appointed by California Governor Pete Wilson to the

newly created position of General Counsel of the California Department of Fish and

Game. I held that position for 5 years, after which the Governor appointed me to

be a judge. I have served on the Superior Court in Sacramento since 1998. I’ve also

been on the faculty of McGeorge School of Law since 1992. I continue my military

service in the Air National Guard, with the current rank of colonel.

Apart from unmitigated enthusiasm for I what think is the best job in Washington, I offer my experience in natural resources law and policy, an ability to build

consensus across diverse interest groups, and a judicial approach to decisionmaking.

During my tenure with California’s Department of Fish and Game, we conserved

hundreds of thousands of acres of wildlife habitat in an innovative multiple species

planning program in Southern California’s coastal sage scrub habitat. That habitat,

home to hundreds of potentially at-risk plant and animal species, stretches across

the five counties in which California’s most intensive growth and development pressures exist. Our natural communities conservation program had bipartisan support

as well as the support of landowners, resource users, local governments and environmental interest groups. As to the largest of the plans under this program, the

San Diego Multiple Species Conservation Plan, the Los Angeles Times reported on

March 19, 1997: ‘‘A committee composed mainly of local businesses, including Bank of America and

the Greater San Diego Chamber of Commerce, concluded >the cost to the public is

modest given the benefits.’ ‘‘ In addition to our large scale multiple species plans, during my tenure at California Fish and Game, we pioneered habitat conservation plans, HCPs, using our

State Endangered Species Act. At one point during the 1990’s, we had more HCPs

in the State of California under State law than existed in the entire rest of the

country under Federal law.

Based on the scientific judgments of our biologists, each of our State HCPs involved the cooperation of landowners. Again, hundreds of thousands of acres of habitat were conserved while allowing economic activities to proceed.

I have spent most of my adult life in public service. In all of that time, I have

had no prouder moment than in 1997 when Governor Pete Wilson signed into law

amendments to the California Endangered Species Act. I had been entrusted with

the Wilson administration’s negotiating portfolio on that legislation. We worked diligently for 4 years to build a consensus among environmental groups, landowners,

local governments, and agricultural interests. We listened to everybody. Eventually,

our legislation, conceived by a Republican administration, was introduced by three

Democratic State legislators and won bipartisan passage. The legislation placed into

the California Endangered Species Act the concepts of landowner incentives and requirements for effective species recovery programs. The legislation also provided for

voluntary, locally designed programs to conserve habitat while allowing agricultural

activities to proceed without the counterproductive effects of a strict regulatory approach.

I mention my experiences in California to illustrate my commitment to work

through environmental and natural resource public policy issues on a consensus

basis whenever possible. In that regard, I am completely committed to what Secretary Norton describes as the ‘‘4 C’s’’: communication, consultation, and cooperation, all in the service of conservation. I strongly support Secretary Norton’s philosophy that the Federal Government must be a partner to State and local governments, individuals and non-governmental organizations affected by or interested in

natural resource policy.

If I am confirmed, I will also apply my judicial experience to the issues involving

our natural resources and national parks. First, every interested party will get a

fair hearing, environmental interest groups, landowners, farmers, ranchers, State

and local government, historic preservation interests, and sportsmen. Second, any

decisions I make or recommendations I give to the Secretary will be based on the

weight of the evidence. I agree with the view expressed by both the President and

Secretary Norton that our natural resources public policies must be informed by

sound science.

Earlier, I described the position of Assistant Secretary for Fish, Wildlife and

Parks as the best job in Washington. One of the aspects of the job I most look forward to, if I am confirmed, is the opportunity to work with the talented and dedicated employees of the U.S. Fish and Wildlife Service and the National Park Service. I have great respect for these professionals who ensure the preservation of

America’s greatest treasures every day.

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Mr. Chairman, I love our great country and the physical resources with which we

have been blessed. If confirmed, I will do my best to see that our resources remain

a perpetual source of enjoyment for the American people.

I’ll be pleased to answer any questions.

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RESPONSES OF HAROLD CRAIG MANSON TO ADDITIONAL QUESTIONS FROM SENATOR

JEFFORDS

Question 1. The Missisquoi National Wildlife Refuge is moving ahead with long

overdue construction of a headquarters building and education center. The potential

educational role of this refuge has never been realized. There is currently a significant shortfall in the funds needed to construct a facility that can meet this need.

What do you see as the role of the USFWS in education and outreach, and bow can

that be met at the Missisquoi Refuge?

Response. I am advised that the facilities to be constructed at the Missisquoi National Wildlife Refuge will include a new headquarters, maintenance facility and visVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00339 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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itor contact station with exhibit space and a multi-purpose room to accommodate

some of the educational needs of the community in which the refuge is located. The

project will replace existing facilities which have exceeded their useful life and are

not suitable for repair.

I understand the significant role that national wildlife refuges in the Northeastern United States can play in educating the public about the important fish and

wildlife resources that the Service and the Department are charged with protecting

and managing. It is my understanding that the Missisquoi Refuge will be better positioned to reach interested citizens and communicate the Service’s mission when

the project is completed.

The Secretary has targeted improved maintenance of facilities on public lands as

a priority. I am advised that replacement of these facilities will help to reduce the

maintenance backlog in the National Wildlife Refuge System. If confirmed, I will

discuss the funding situation for this facility with Service officials and report back

to you.

Question 2. The USFWS has a relatively new 26,000-acre refuge in Northeast

Vermont, part of the Conte National Wildlife Refuge. The Refuge Manager is doing

a great job, but residents of this area are not yet fully comfortable with the Federal

Government as a large landowner. What would be your approach to working with

the State and local partners to assure that the refuge is accepted as part of the community?

Response. I understand that the establishment of the Nulhegan Basin Division of

the Silvio O. Conte National Fish and Wildlife Refuge was a collaborative effort between the State of Vermont, the U.S. Fish and Wildlife Service; private foundations,

and nongovernment conservation groups. This effort resulted in the protection of

over 133,000 contiguous acres of former timber company land, with only about 20

percent in Federal ownership as the Refuge. A large portion of the area remains in

private ownership as a working forest and the State of Vermont acquired about

22,000 acres of the property.

I am advised that, since the Refuge was established, the State, the Service, local

citizens and groups have worked together to inventory and identify the resources

present on both areas. In addition, the Service informs me that in January of 2002,

a cooperative visitor services plan, covering the State and the Refuge land, will be

released for public review. This plan will outline the many ways in which citizens

can continue to enjoy the resources of the area, and will hopefully ease concerns

over the possible effects of the refuge on public use of the land.

As I noted in my statement to the committee, I am fully committed to communication, consultation and cooperation as the means of conducting our business. If confirmed, I will encourage expanded efforts at all three elements by the Refuge staff.

Question 3. There are now some Atlantic salmon returning to Vermont streams,

after being absent for more than a century. The numbers are still not large and it

has taken a lot of time and money to get this far. The overall quality of the Connecticut River and other species has been helped in the meantime. The White River

National Fish Hatchery in Vermont has been a lynchpin, although the facility is in

need of significant upgrades. What is your position concerning USFWS support for

Connecticut River salmon restoration?

Response. I am very pleased to hear that the efforts expended so far on the Connecticut River Atlantic salmon restoration program are showing positive and exciting results. From what I have heard, the Connecticut River Atlantic Salmon Commission is an excellent model of the type of State, Federal and private partnership

we need throughout the Nation for more effective conservation efforts.

While I have not had an opportunity to become familiar with the details of the

Fish and Wildlife Service’s budget, the salmon restoration program certainly appears to be the sort of effort which needs our support.

Question 4. The Pittsfield National Fish Hatchery supplies salmonids to Lake

Champlain and the Connecticut River. These stockings are critical to maintain populations while threats such as Sea Lampreys are controlled. The hatchery is in need

of significant maintenance work, some of which is under way as a result of funding

I secured last year, but the reprogramming of funds to complete the job from within

the Region has not gone smoothly. How would you ensure that this important Federal facility can be improved as needed to continue its mission?

Response. While, as previously indicated, I have not yet bad an opportunity to become fully familiar with agency budgets, I am advised that there are major maintenance backlogs throughout the National Fish Hatchery and National Wildlife Refuge Systems, as well the better-known backlog confronting the National Park Service. If confirmed, I will be deeply involved in addressing these issues, and will seek

to do so through a long-term, systematic approach to reducing all these backlogs.

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I would also be glad to look into the status of the reprogramming request for the

Pittsfield hatchery and report back to you.

Question 5. The USFWS has been a very strong partner with local watershed

groups, State agencies and the U.S. Forest Service in repairing damaged stream

banks and restoring Vermont Rivers to a healthy condition. The amount of local

support and funding leveraged by the leadership of the USFWS makes this one of

our most valuable programs. Do you see this type of partnership as important and

how would you support it?

Response. Yes, I consider the development of partnerships and cooperative efforts

as the most effective approach to conserving our natural resources, The cooperation

and participation of Federal, State and local agencies, organizations and individual

citizens generally develops and effectively implements far more innovative and costeffective solutions to natural resource problems than uniform direction from Washington. A cooperative approach to stream and river restoration is particularly important due to the physical complexity of waterways, which run through multiple jurisdictions and ownerships and serve multiple functions such as transportation, water

supply, fish habitat and recreational uses.

I have been advised that the Service’s Partners for Fish and Wildlife Program

uses this approach across the Nation and that the program has been very successful. The program works with private landowners who wish to voluntarily restore

fish and wildlife habitat by providing them with restoration advice, assistance during project construction, and funding support. If confirmed, I will promote this and

other Service programs that work cooperatively with citizens and other agencies and

organizations.

Question 6. In the Northeast, the Fish and Wildlife Service is involved in several

large natural resource restoration projects involving comprehensive partnerships in

Rhode Island, New Hampshire, Vermont, Maine and Connecticut. Mr. Manson, what

are your plans to increase agency support to these partnership activities in the

Northeast?

Response. As I stated in my response to the previous question, I believe these

types of cooperative efforts are by far the most effective approach to conservation,

and I strongly support them. It is my understanding that many of these particular

efforts are being coordinated through the Silvio O. Conte National Wildlife Refuge.

It is most encouraging for me to see that multiple elements of the Fish and Wildlife

Service have adopted this approach, and if confirmed, I will strongly support the

continuation of such cooperative efforts.

Question 7. How will you help increase agency support for Fish and Wildlife Service activities in the Northeast?

Response. As you know, I am currently most familiar with Fish and Wildlife Service activities in California. If confirmed, I will make it a high priority to become

fully conversant with the Service’s activities throughout the Nation, and specifically

in the Northeastern States. I will make an early visit to the Northeast. It appears

that the Service has a number of highly successful programs there. It is my belief

that we should encourage and reward success.

RESPONSES OF HAROLD CRAIG MANSON TO ADDITIONAL QUESTIONS FROM SENATOR

BAUCUS

Question 1. It’s pretty clear to me that the Fish and Wildlife Service is operating

under a handicap in my State, and that’s a staffing and funding handicap. It’s my

understanding that the Service in Montana has recently done its best to catch up

on a substantial backlog of biological opinions, not from a lack of trying, but from

a lack of biologists and resources. This problem seriously interferes with the business of my State, and certainly doesn’t further the interests of endangered and

threatened species;

We have only about 19 biologists doing consultation work in Montana. I think if

you look into this issue, and I ask that you do, you’ll find that our neighboring

States such as Washington and Oregon have considerably more biologists, not only

in the State as a whole, but per national forest. Montana has several of the same

issues to deal with as those States. Not only that, but we have several endangered

and threatened species that cover very large territories. This means that lots of

projects all over the State are impacted by the need to consult with the Fish and

Wildlife Service before those projects can go forward. The Service must have the resources necessary to allow these projects to move forward efficiently in a reasonable

amount of time, with due consideration for the protection of endangered and threatened species.

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I have raised this issue with the Administration before. The Assistant Secretary

of Interior, Lynn Scarlett, wrote to me, saying she agreed this problem needed further investigation at Interior. I ask that you yourself look into this, and talk to Ms.

Scarlett. And please, come to Montana, visit the biologists on the ground, compare

their situation to that of Service employees in other States, visit our many fish

hatcheries and wildlife refuges. Get a feel for what a very limited staff is struggling

to deal with. I can’t tell you how important this issue is to Montana. Will you commit to helping me solve this problem?

Response. Yes. If confirmed, I will consult with Assistant Secretary Scarlett and

the Fish and Wildlife Service on this issue as a high priority, and report back to

you. I will also travel to Montana for an on-the-ground orientation as soon as practicable.

Question 2. I have worked long and hard with other members of Montana’s congressional delegation to bring the Fort Peck Interpretative and Visitor Center to

Montana. The Interpretative Center will remain a part of Fort Peck Dam, under the

jurisdiction of the Army Corps of Engineers. The Visitor Center will be part of the

CM Russell National Wildlife Refuge because it will contain interpretive exhibits related to the refuge. This Important wildlife refuge has never bad a visitor center.

I was disappointed that the Service did not ask for any funds to pool with the over

$6 million already provided through the Army Corps and other sources to help build

the Visitors Center. I would like to see the Service take some ownership of this

project, because it’s important to the refuge and to local residents. And, the Service

is going to use the center. Could you look into this and see if there’s any way for

the Service to participate in this project?

Response. If confirmed, I will certainly look into this situation. I am advised that

the bulk of the Fish and Wildlife Service construction budget is currently directed

to projects addressing critical health and safety issues, including bridge, dam and

seismic safety measures.

RESPONSES OF HAROLD CRAIG MANSON TO ADDITIONAL QUESTIONS FROM SENATOR

SMITH

Question 1. Mr. Manson, given that the majority of listed endangered and threatened species occur on private lands, we must be very cognizant of the rights and

concerns of private property owners, especially when private land is included in critical habitat, Its my understanding that as General Counsel of the California Department of Fish and Game, you supported State legislation that prevented State biologists from entering private land. While laws like this protect the rights of property

owners, it can impact on the ability of the government to recover listed species. How

do you suggest we strike the delicate balance between private property rights and

species protection?

Also, do you believe that private landowners should be compensated under the

takings clause of the Fifth Amendment if protecting listed species on their land infringes on their rights to use the land as they see fit?

Response. Federal, State and local government employees generally have no right

to enter private property without either the owners’ or occupants’ permission or

under circumstances when members of the general public would also be able to do

so. There are a number of exceptions to this principle, primarily in law enforcement

situations, but none that would apply exclusively to the California or the Federal

Endangered Species Acts. Accordingly, the California legislation to which you refer

was not a question of restricting access previously enjoyed by State employees, to

the detriment of listed species, but rather one of clarifying the existing legal situation for the State employees and the public.

I fully and strongly support the Constitution’s requirement that no private property may be taken for public use without just compensation. This is one of the keystones of our form of government. It is my understanding that the Administration

is committed to administering the Endangered Species Act so that takings of private

property do not occur. If confirmed, I will do all that I can to ensure that the program continues to operate in this fashion.

RESPONSES OF HAROLD CRAIG MANSON TO ADDITIONAL QUESTIONS FROM SENATOR

BOXER

Question 1. The Klamath Basin has been called the ‘‘Western Everglades’’ because

of the great diversity and abundance of fish and wildlife found there. The six national wildlife refuges in the basin are among the most important in the entire NaVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00342 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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tional Wildlife Refuge System. They are home to millions of migratory birds as well

as a sizable population of bald, eagles. Unfortunately, the Klamath Basin suffers

from a chronic shortage in water supply. Because of drought conditions, this year

proved particularly difficult and has raised tough questions about how best to

prioritize water use. In 1998, the U.S. Fish and Wildlife Service adopted a policy.

for Tule Lake and Lower Klamath National Wildlife Refuges in California and Oregon that prevents irrigation on commercial farmland on the refuges unless sufficient water is available to sustain the refuges’ marshes. Do you support this policy

which gives priority to the refuges’ ecological resources over commercial farming?

Response. I am advised that the 1998 compatibility determination is still a draft

and as such has not become policy. The Fish and Wildlife Service is currently developing a new environmental assessment that addresses this issue and will issue that

document later this year for public review and comment. I am further advised that

this Environmental Assessment develops alternatives that incorporate new ways for

storing and using irrigation water that will seek to minimize conflicts between commercial fanning and wildlife habitat objectives.

As you know, the water uses and priorities in the Klamath Basin are very complex. It is my understanding that the curtailment of commercial farming on the refuge lease lands may not necessarily free up that water for use in refuge wetlands,

due to legal priorities for endangered species, tribal trust needs and nonrefuge agriculture. For example, irrigation for commercial farmland was drastically reduced

this past summer to avoid jeopardy to endangered species.

This issue is clearly one of the very highest priorities facing the Department and

the Fish and Wildlife Service. I believe my prior experience, particularly in negotiating the settlement to the Owens Valley water litigation, could be quite applicable

here, and if confirmed look forward to working with you, the other Members of the

California and Oregon delegations, and the stakeholders to resolve the situation.

Question 2. The National Wildlife Refuge System Improvement Act of 1997 set

new requirements for the management of refuges. In response, the U.S. Fish and

Wildlife Service issued regulations establishing procedures for determining what

uses are compatible with the missions of the refuge system and mission of each individual refuge. What uses do you deem incompatible with the mission of the national

wildlife refuge system?

Response. I have not yet had an opportunity to review the Improvement Act and

the Service’s implementing regulations in detail. However, I am advised by the

Service that it is not possible to list the types of uses that might be incompatible

with the statutory mission of the National Wildlife Refuge System, as those are site

specific considerations made by individual refuge managers.

However, it is clear that Congress provided this layering of system mission and

individual refuge purpose with the compatibility standard in order to ensure that

wildlife and wildlife conservation come first within the Refuge System. This provides a very protective standard.

If confirmed, I will be highly supportive of addressing compatibility questions in

accordance with the law.

Question 3. Recently, the National Park Service developed a detailed plan for the

future management of Yosemite National Park. The plan was developed after considerable input from all of the affected stakeholders and over 10,000 members of the

public submitted comments to the agency. Central to this plan is the notion that

visitors to the park should be encouraged to leave their personal vehicles outside

the park and travel through the park on a park transit system. As Assistant Secretary for Fish, Wildlife, and Parks you will have responsibility for the National

Park Service. In this role, will you actively support implementation of the. new Yosemite Valley Management Plan?

Response. I will work closely with the Director of the National Park Service to

become familiar with the Yosemite Valley Plan and move forward with the appropriate restoration of Yosemite Valley, while welcoming people to enjoy the park and

its resources. I also will work to ensure that the future management of the park

is accomplished in partnership with local jurisdictions and others.

Question 4. The Bush Administration has indicated its clear intent to open the

Arctic National Wildlife Refuge to oil and gas development. In the past, U.S. Fish

and Wildlife Service (Service) biologists have indicated that oil and gas development

would do irreparable harm to the wildlife species that depend upon this refuge. As

Assistant Secretary of Fish, Wildlife, and Parks it will be your duty to ensure that

the concerns of wildlife species are addressed before approval is given to enter a national wildlife refuge. How will you ensure that there is an unbiased assessment of

the impacts that oil and gas exploration will have on the Arctic Refuge’s irreplaceable wildlife species?

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Response. I am familiar with the concerns about the impacts of oil and gas exploration on the wildlife resources of the Arctic National Wildlife Refuge. I have been

advised that a great deal of study of the fish, wildlife, and habitats of the Refuge’s coastal plain has’ been conducted by biologists with the Fish and Wildlife Service

and the Biological Resources Division (BRD) of the U.S. Geological Survey. Many

of those studies provided the scientific basis for the 1987 Report and Recommendations to the Congress of the United States and Final Legislative Environmental Impact Statement was based. Additionally, some research and monitoring has been

conducted since 1987 by the Service and BRD

I am further advised that most of the studies completed to date have been necessarily broad-based. However, if Congress authorizes oil exploration and production

in the 1002 Area, there will be the need for further site-specific studies to ensure

that these activities are undertaken in an environmentally sound manner. The Fish

and Wildlife Service is this Nation’s preeminent agency with expertise in management of lands for fish, wildlife and plants. If confirmed, and if Congress acts to open

the 1002 Area, I will expect biologists with the Service and BRD to provide the

sound science upon which the. Department can base its decisions on where and

under what conditions to permit specific activities.

Question 5. While at the California Department of Fish and Game, you supported

State legislation would have prevented State biologists from entering private land.

As you know, the Federal Endangered Species Act (ESA) applies to both public and

private lands, Thus, the U.S. Fish and Wildlife Service is required to enforce the

ESA on both public and private lands. As Assistant Secretary of Fish, Wildlife and

Parks, will you carry out your statutory duties to apply the ESA on both public and

private lands?

Response. If confirmed, I will do so without reservation. The California legislation

to which you refer was not a question of restricting access previously enjoyed by

State employees, to the detriment of listed species, but rather one of clarifying the

existing legal situation for the State employees and the public. Additionally, I believe we need to involve private landowners in recovery planning and solving complex ESA issues.

Question 6. There are now well over 1,000 species that have been federally recognized as threatened or endangered species. The Endangered Species Act compels the

Secretary of Interior to identify habitat that is critical to the recovery of those species and protect that habitat from further degradation. Many have alleged that our

limited success in recovering species is due to our failure to protect the habitat upon

which those species depend. In States like California, where there are a large number of listed species and a great deal of habitat that has been identified as ‘‘critical

habitat,’’ protection of this habitat has been limited. How would you interpret the

Interior Department’s obligations to protect and conserve the critical habitat of

these threatened and endangered species? If you favor limited protection for critical

habitat, what alternatives do you offer for fulfilling Interior’s obligations to recover

listed species?

Response. The Endangered Species Act requires that critical habitat be designated

at the time a species is listed ‘‘to the maximum extent prudent and determinable’’.

The ESA works to protect critical habitat through the Section 7 consultation process. The Secretary of the Interior’s responsibility is to consult with Federal agencies

if their actions may serve to jeopardize endangered species or result in adverse

modification of their critical habitat.

If confirmed, I will make it a priority to ensure that the ESA is fully complied

with.

At the same time, I would hope that, if given an opportunity to work with you

and other interested parties on the ESA, we could increase our focus on efforts to

recover species so that they could be delisted. This perhaps could involve continued

pursuit of the approach taken in legislation in prior Congresses, in which I was involved on behalf of the Western Governors Association, to make critical habitat designation a part of the recovery process, where it could be designated if a recovery

plan found it was needed. There may well be other approaches which also merit consideration. However, absent such a change in the law, if confirmed I will ensure

that the law is carried out as it stands.

Question 7. In the fiscal year 2002 budget request, the Bush Administration asked

for $8.5 million for the U.S, Fish and Wildlife Service’s listing and critical habitat

designation budget. This request is far below the funding level that the agency has

indicated it needs to sufficiently address the backlog of species that await listing

decisions and critical habitat designations. Indeed, in a variety of court cases the

USFWS has asserted that is should be exempt from its legal obligations to list and

designate critical habitat because the agency lacks adequate funding, Clearly more

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funding is needed to address this problem. What will you do to ensure that the

President’s fiscal year 2003 budget request for the USFWS includes a credible

amount of funding for listing and critical habitat designation?

Response. I appreciate your concerns regarding the Service’s listing and critical

habitat designation budget. I am advised that the Bush Administration’s 2002 budget request for listing represented a 15 percent increase over the 2001 amount requested by the prior Administration, and a 34 percent increase over the amount actually appropriated for listing in fiscal year 2001.

In fashioning a 2003 request, I believe the Administration will balance the needs

of the Endangered Species program, the Service, and the Department of the Interior

with the many other demands and priorities for increased Federal funding, including other aspects of the Endangered Species Act itself As you are aware, there are

significant documented needs and backlogs in many Service and Departmental programs. If confirmed, and in time to participate in the development of this request,

which I am advised is already well advanced, I will do my best to ensure that funding is requested based on documented needs consistent with the President’s priorities.

Question 8. The press has reported of your involvement in a whistleblower case

concerning a biologist who was allegedly pressured to approve an illegal permit.

Government agencies are entrusted by the public to fully and fairly implement laws.

Political pressures on agency staff to break the law, misrepresent an issue, withhold

information, etc. is unacceptable. As Assistant Secretary of Fish, Wildlife and Parks,

what will you do to ensure that agency staff are not pressured to base policy decisions on political pressure? What will you do to ensure that any staff who are pressured have an opportunity to disclose this information?

Response. My involvement in the case you referenced was limited to my role as

a lawyer defending the California Department of Fish and Game and its management in legal actions arising from the alleged incident.

I agree with you that it is unacceptable to subject agency staff to political pressures to break the law, misrepresent an issue, withhold information or otherwise

act in a manner that is illegal or unethical. I believe that the best decisions are

based on having the best information, and if confirmed I would be vigilant in ensuring that agency staff contribute information in a work environment that values good

science and accurate information for the formulation of policy decisions.

STATEMENT OF PAUL MICHAEL PARKER, NOMINATED TO BE ASSISTANT SECRETARY OF

THE ARMY FOR CIVIL WORKS

Thank you, Mr. Chairman and distinguished members of the committee. It is a

great honor and privilege to appear before this committee as the nominee to be the

Assistant Secretary of the Army for Civil Works. I am very grateful to the President, the Secretary of Defense, and the Secretary of the Army for the trust and confidence that-they-have placed in me. If confirmed, I pledge that I will work as hard

as I possibly can to serve the soldiers, civilians, and families that make the United

States Army the most powerful and professional army in the world.

The Corps of Engineers has a proud history stretching back to the beginning of

the country. Over the years the Corps has evolved to emphasize its major civil

works responsibilities of today: conservation and development of the nation’s water

resources, which includes flood control, navigation, shore protection, and environmental restoration. All of these tasks are important; all are complex and demanding; and all require significant resources. With competing demands for limited dollars, fulfilling these requirements becomes more and more challenging; however, I

am committed that should I be confirmed, environmental considerations will remain

a key factor in determining our Civil Works stance for the nation. The dedicated

and able staff of military and civilian employees who make up the Corps of Engineers has risen to every challenge in the past and I’m sure will continue to carry

out their responsibilities to the people of this country in these vital areas.

In the last week, you can see the value of the Corps to this nation and the dedication of its people as we recover from the recent tragedies at the World Trade Center

and at the Pentagon. The Corps is heavily involved in determining structural integrity and debris management in both locations and continue to serve as the nation’s

premier engineers during this time of crisis. Should I be confirmed, I will be proud

to work alongside these ultimate professionals.

In the 10 years during which I had the honor of representing the Fourth District

of Mississippi in the U.S. House of Representatives, I applied my commitment to

finding practical, realistic solutions to problems and issues of importance to my constituents. Having served on various House committees which deal with a range of

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issues I can expect to face as the Assistant Secretary, I understand both the Civil

Works and military programs aspects of the Corps of Engineers and appreciate the

challenges. facing the Corps.

Should I be confirmed, I look forward to serving with the Army and the Corps

during this landmark era of change and transformation. I look forward to serving

with the Army team of Active, Reserve, and National Guard soldiers who distinguish themselves every day by their dedication and hard work. I am prepared to

undertake the important responsibilities of this post and am enthusiastic about the

opportunities it presents to me to continue to serve this great country. I am committed to working closely with and consulting with the various stakeholders in the

ongoing Corps projects, including the Members of Congress who represent the American people. Mr. Chairman, if confirmed, I look forward to a strong working relationship with you and this committee. I would be pleased to answer any questions at

this time. Thank you.

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RESPONSES OF PAUL MICHAEL (MIKE) PARKER TO ADDITIONAL QUESTIONS FROM

SENATOR SMITH

Question 1. As you are well aware, the Army Corps Civil Works Program faces

a construction backlog of $40 billion in unfunded, but authorized projects. The Senate Environment and Public Works Committee is currently on schedule to report the

next biennial Water Resources Development Act in the year 2002. While the Appropriations Committees have adhered to a ‘‘no new starts’’ policy, this seems to unfairly penalize otherwise meritorious projects. What do you recommend the Congress do to fairly address both the massive construction backlog and the backlog on

Operations and Maintenance?

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Response. The construction backlog of the Civil Works Program of the Corps of

Engineers is real and needs to be addressed. My intention, if confirmed, is to work

within the Administration and with Congress to assure that adequate funding is

available to address the construction and maintenance backlogs. The Civil Works

Program of the Corps of Engineers is a direct contributor to the economic vitality

of this country and investing in water infrastructure is a direct way to contribute

to the economic vitality and therefore, national security of this country. If confirmed,

I will work directly with the Corps of Engineers to review the backlog of currently

authorized projects to determine whether it remains in the national interest to pursue those projects. In addition, I will place a very high priority on reducing the Civil

Works maintenance backlog.

Question 2. In November of 2000, then-Assistant Secretary Joseph Westphal and

Chief of Engineers General Robert Flowers signed a Memorandum of Agreement

(MOA) outlining the distribution of responsibilities and reporting authority between

the two positions. Is it your intent to honor this MOA?

Response. Yes, I do. If confirmed, I will meet with the Chief of Engineers at the

earliest date possible to affirm this agreement.

Question 3. What measures do you recommend the Army Corps take to avoid a

recurrence of the situation encountered with the Upper Mississippi River Navigation

Study?

Response. It is my understanding that, subsequent to the Army Inspector General

report and a review by the National Research Council’s National Academy of

Sciences, the Chief of Engineers put in place a number of additional measures to

receive and incorporate into the planning process the views of other Federal agencies and non-governmental entities with expertise needed for complex studies like

the Upper Mississippi River Navigation Study. If I am confirmed, I will work closely

with the Chief of Engineers, with others in the Administration and with Members

of Congress to strengthen the Corps planning process and the public’s confidence in

it.

Question 4. Do you consider environmental restoration to be a primary mission

of the Army Corps and will you support it to the same extent you do the other missions of the Corps?

Response. Yes, I do. I am committed, if I am confirmed, to seeing that the Corps

continues to excel in environmental restoration. I firmly believe that economic development and environmental restoration need not be competing priorities. The most

effective projects are those that satisfy both critical objectives. The Civil Works program of the Corps can truly improve the quality of life for all of our citizens through

economic prosperity, national security, and environmental protection and restoration.

Question 5. As you may know, on January 15th, 2001, the Air Force issued a

Record of Decision (ROD) on redevelopment of Homestead AFB, rejecting the plan

to convert the base into a commercial airport and instead approving a plan for

mixed use development. The 700 acres of land will be transferred to Miami-Dade

County, which prefers the airport alternative. If the county declines the surplus

property, the ROD stipulates that the Air Force will consider a request for the property to be transferred instead to the Department of Interior.

Homestead AFB is located approximately 10 miles from Everglades National Park

and two miles from Biscayne National Park. Last year, the Environment and Public

Works Committee authorized an $8 billion restoration effort in the Everglades. Included in this statute is a Sense of the Congress that any redevelopment of the AFB

be consistent with restoration of the Everglades.

Question 6. What is your position regarding the disposal of Homestead AFB?

Response. As I understand it, Hurricane Andrew had a significant impact on

Homestead Air Force Base, and the Air Force looked closely at alternatives associated with its future. I am not familiar with the details of those alternatives at this

time. If confirmed, I will look into the situation to ensure that any disposal or redevelopment decisions are consistent with the principles in the Corps Comprehensive

Everglades Restoration Plan and consult with the appropriate committees of Congress before making any final decision.

Question 7. Do you think that any reforms are needed in the Corps to restore the

faith of the public and Congress in this agency?

Response. The Corps of Engineers has provided and continues to provide this Nation with great service that is technically sound, environmentally sensitive and responsive to the needs of the American public, and I don’t believe any fundamental

changes are needed. However, I do recognize that the Army must be open to opportunities to improve the responsiveness of the Corps of Engineers in meeting national

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needs and developing sound project recommendations. If I am confirmed, I plan to

actively examine the question of independent review and other reforms, in consultation with the Chief of Engineers and the National Academy of Sciences and, as appropriate, develop a recommendation for consideration by the Congress.

Question 8. Mr. Parker, would you support updating the Principles and Guidelines

to reflect recent policy and social changes, such as the inclusion of environmental

restoration as a Federal purpose, and advances in analytical techniques and technologies?

Response. I believe that the existing Principles and Guidelines provide a sound

basis for evaluating the economic and environmental benefits and costs of proposed

projects. It is important, however, that as improved methods of evaluation are developed, the Government’s analysis can benefit from them. If I am confirmed, I will

review the existing Principles and Guidelines, with particularly attention to the way

they are implemented, as I assess whether or not they need to be revised. Before

any decisions are final in this matter, I will consult with the Congress.

RESPONSES OF PAUL MICHAEL (MIKE) PARKER TO ADDITIONAL QUESTIONS FROM

SENATOR BAUCUS

Question 1. Mr. Parker, would you agree that it’s high time that the current Master Manual be changed? It’s been around for decades upon decades, and times and

river conditions have changed.

Response. I agree that operating procedures for Civil Works projects should reflect

current conditions and priorities. The existing Missouri River Master Manual is, as

you state, one that has been in place for many years. The Corps has been involved

since 1989 in a review of the current Master Manual. This has been and continues

to be a long process and will be one of my top priorities if I am confirmed.

Question 2. While the debate over changing the Master Manual has a lot to do

with endangered species, it also has a lot to do with the recreation industry in my

State and other upstream States. I’ll be blunt. We really feel we’ve been shortchanged over the years as our reservoirs are drained in the summer, particularly

during dry years, docks left high and dry, to support downstream interests. What

is your view on better balancing the needs of upstream recreation interests with

downstream demands, particularly during a drought?

Response. If confirmed, I will act on my commitment to consider the water resource needs of the entire basin in completing the revision of the Master Manual

on the Missouri River. The alternatives under consideration in the revised draft Environmental Impact Statement include a conservation plan component for storage

in the upper Missouri reservoirs, which would provide more storage in drought conditions. The completion of this process will provide the legal, scientific, and engineering basis for any changes on balancing upstream recreation interests with

downstream demands.

Question 3. How do you think the Army Corps should respond to Biological Opinions, in general?

Response. The Corps should and does give great deference to the conclusions of

Biological Opinions under the Endangered Species Act. I believe that economic development and environmental restoration do not need to be competing priorities. We

must all work to ensure that we avoid impacts to protected species or the critical

habitats on which they depend. If I am confirmed, I assure you that all of the actions taken through the Civil Works program will be consistent with the law and

will use the coordination and decisionmaking processes provided for in the law.

Question 4. If the Army Corps does not follow the recommendations of the US

Fish and Wildlife Service’s Biological Opinion in formulating a Record of Decision

on the Missouri River Master Manual, what do you think will be the result of that

decision?

Response. I am not familiar enough with the details of this extremely complex

issue to offer an opinion on the results of any decision. However, you have my commitment that, if I am confirmed, I will give this matter my fullest attention to ensure that, whatever the decision, the outcome has been well thought out and all

project purposes and all of the interests in the river basin have been taken fully

into consideration. If confirmed, under my leadership the Corps will always implement and follow the law.

Question 5. Can I count on your commitment to support the development of the

Fort Peck Fish Hatchery? I’ve asked for funding for the Corps to get this project

off the ground. There’s tremendous support for it in the local Corps and in Montana.

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It would be a huge boon for recreation, the regional economy and endangered and

threatened species a win-win project.

Response. When Congress provides funding for a particular activity, such as the

Fort Peck Fish Hatchery, you should be able to expect that the Corps will vigorously

apply the funding as appropriated by Congress.

Question 6. Mr. Parker, I would just ask you to familiarize yourself with the Yellowstone River cumulative impacts study, because it is important that the Corps

continue to involve the public in the process. The Yellowstone means a lot to an

awful lot of people. Managing the river will always be controversial, and I want to

be sure that the Corps truly listens to local voices.

Response. You have my commitment that, if I am confirmed, I will familiarize myself with not only the Yellowstone River study, but also with other issues of interest

to the residents of Montana.

Question 7. Will you come to Montana?

Response. Yes Senator, if confirmed, I would look forward to visiting the State of

Montana.

RESPONSES OF PAUL MICHAEL (MIKE) PARKER TO ADDITIONAL QUESTIONS FROM

SENATOR WYDEN

Question 1. If you’re confirmed as Assistant Secretary, what will you do to prevent

a rerun of this year’s attempt to cut the Corps’ funding in the budget process?

Response. Senator, I am committed to working within the Administration, as well

as with Congress, to ensure that the contributions of the Civil Works program to

the Nation are understood and that adequate resources are provided to efficiently

and effectively carry out the Civil Works responsibilities of the Corps of Engineers.

If confirmed, I intend to meet with senior Administration officials on the challenges

facing this country with respect to its water infrastructure. The Administration and

Congress need to work together to assure that this program move forward effectively. I look forward to the opportunity to lead this effort.

Question 2. An issue of particular concern to Oregon ports is keeping the Northwest hopper dredges available to keep our navigation channels and our ports open

for business. The Northwest ports are not convinced that the private dredge industry has the capability to meet the region’s dredging needs in a timely and cost effective way. Our ports want the Corps dredges maintained to ensure safe navigation.

What commitments can you make that the Corps dredges will be available to do the

work when they’re needed?

Response. I am committed to ensuring safe commercial navigation of channels and

harbors in the Pacific Northwest and elsewhere in the country with maintenance

that is cost effective and efficient and that adequate hopper dredging capacity is

available to respond to the needs of Northwest ports. By striking a reasonable balance between industry competition and Government-owned dredges, the Corps can

meet this commitment. If I am confirmed, I will work with the Corps to improve

actual dredging performance in the Northwest and will not allow the Northwest to

left without proper dredging capacity.

Question 3. At a March 1998 hearing before the Subcommittee on Energy and

Water Development, you questioned the Corps’ environmental missions and in particular Columbia River Salmon Recovery efforts. You’ve been quoted in the press as

saying ‘‘I never even thought they were in the scope of the Corps’ primary mission.’’

My questions are: Have your views changed since you made those comments and,

if so, how? Do you now support salmon restoration efforts in the Northwest as part

of the Corps’ mission? And will you make salmon recovery funding a priority?

Response. The comments were made in the context of a dialog in a hearing before

the Subcommittee on Energy and Water Development that arose because the Corps

had reprogrammed money without consulting with the Subcommittee. It was and

is my opinion that the Corps should consult with Congress before making any significant reprogramming decisions. I recognize the importance of environmental restoration and the Corps unique capability to provide it. Moreover, I support salmon

recovery efforts in the Northwest that represent cost effective application of the best

science and engineering available to this complex ecosystem challenge. I am supportive of a broad coalition of States, Tribes, and Federal agencies being involved

in recovery efforts and will support the Corps involvement in working within the

Northwest Region on this issue. I also recognize that the Bonneville Power Administration provides for a substantial amount of funding for salmon recovery, and I will

continue to examine ways that this funding can best be leveraged to support Corps

activities. If I am confirmed, I will look for ways to collaborate fully on salmon reVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00355 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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covery efforts and will support appropriate levels of funding to maintain Civil Works

projects to enhance fish survivability.

RESPONSES OF PAUL MICHAEL (MIKE) PARKER TO ADDITIONAL QUESTIONS FROM

SENATOR GRAHAM

Question 1. There is a substantial backlog of projects that have been authorized

for the Corps to undertake. With current funding levels, it seems unlikely that this

backlog will ever be fully funded. There are also several projects that seem to have

very little economic benefit and are also environmentally damaging. One example

of this is O&M dredging of the Apalachicola River. In an August 2000 letter to me,

then Assistant Secretary of the Army, Joseph Westphal wrote: ‘‘Based upon our review and conversation with the Corps, I believe that maintaining navigation on the

ACF is not economically justified or environmentally defensible. With an economic

return that has been estimated at less that 40 cents for each dollar spent, it is difficult to invest nearly $3 million each year on this project in light of the Corps overall backlog for operations and maintenance. Further, deauthorization of navigation

would provide the Corps greater flexibility to address important environmental

issues along the river.’’

Do you support deauthorization of outdated, unjustifiable, or unnecessary projects,

such as the dredging of the Apalachicola River, as a means of providing more flexibility to the Corps to address its operations and maintenance backlog?

Response. I support the deauthorization of outdated, unjustifiable, or unnecessary

projects. A few years ago, Congress authorized a process whereby if authorized

projects had not received any fund for five consecutive years, they would be eligible

for deauthorization. I believe we need to review this process to determine whether

any changes in this process are warranted. If I am confirmed, I look forward to

working with the Corps to assure that changes to the deauthorization process are

comprehensive, fair to all, and effective in identifying those projects that are no

longer in the national interest to pursue.

Question 2. When General Flowers was confirmed, I expressed interest in establishing a process for a regular review of ongoing Corps projects outside of the normal budget process. What is your opinion of such a process?

Response. I agree with the importance of regular review of projects and priorities.

If confirmed, I will work with the Corps and the Congress to examine their current

procedures and identify other opportunities for review.

Question 3. In recent years, the purpose of many Corps projects has been environmental restoration. There are many such projects in Florida, the largest being the

restoration of America’s Everglades. There has been substantial concern over statements you made while in Congress that question the primacy of environmental restoration to the overall mission of the Corps. However, in response to advanced questions posed by the Armed Services Committee, you stated: ‘‘I believe that projects

and programs that protect and restore the natural environment are a priority to the

American people and a central mission for the Corps of Engineers.’’

What do you see as the primary mission of the Corps of Engineers and how do

environmental restoration projects, such as the restoration of the Everglades, fit

into that mission?

Response. Environmental restoration is most definitely a primary mission of the

Corps of Engineers. In recent years, it has been accorded the same priority for resources as the other primary missions of flood damage prevention and commercial

navigation.

Question 4. Many Members of Congress have called for significant reforms in the

way the Army Corps conducts its business. One issue that has come to my attention

is the manner in which Corps district offices interact with other parts of the government as well as with local communities that are the beneficiaries of Corps projects.

In handling issues of importance to Florida, I have had many interactions with the

Jacksonville district office. They have been helpful, responsive, and eager to provide

me with the information I have needed.

Do you plan to conduct an internal review as to the way the district offices interact with outside agencies and the people they serve in order to help all the districts

be as helpful and responsive as the Jacksonville district?

Response. If confirmed, I will conduct an internal review of the Corps to review

its approaches in dealing with all of its constituents and interested parties as we

carry out the Army Civil Works program.

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RESPONSES OF PAUL MICHAEL (MIKE) PARKER TO ADDITIONAL QUESTIONS FROM

SENATOR BOXER

BUTTONWILLOW/SAFETY-KLEEN

Question 1. I understand the Corp of Engineers has not made any progress since

last October on removing Formerly Utilized Sites Remedial Action Program

(FUSRAP) waste from the unlicensed Safety-Kleen facility at Buttonwillow, California, and that no further studies are being conducted. I am deeply disappointed

by this continued inaction, and that waste continues to sit in an unlicensed California dump when other licensed facilities in other States express willingness to accept it. Will you commit to working with me to remove the waste from my State?

Response. I will work with you and your staff to become fully aware of your concerns regarding the Corps use of the Safety-Kleen facility in California for the disposal of FUSRAP materials. I am also quite willing to work with you to define a

potential solution to your concerns.

MISSOURI RIVER MASTER MANUAL

Question 1. Under what circumstances do you believe that the Endangered Species Committee provision of the Endangered Species Act should be utilized?

Response. Senator, As I currently understand it, the Endangered Species Committee process was established by the Endangered Species Act to resolve situations

when there is no reasonable and prudent alternative that an agency can pursue to

preclude jeopardy.

Question 2. Do you believe that the Endangered Species Committee provision of

the Endangered Species Act should be utilized to address the revision of the Missouri River Master Water Control Manual?

Response. Senator, If I am confirmed, I have every expectation of working toward

a resolution that not only serves the congressionally authorized project purposes

provided by the 1944 Flood Control Act, but also complies with the provisions of the

Endangered Species Act. If confirmed, under my leadership, the Corps will follow

the law.

Question 3. If a proposal is made to invoke the Endangered Species Committee

provision of the Endangered Species Act, will you commit to inform this committee

and interested senators at the earliest possible opportunity, and to appear before

this committee to provide an explanation for such action?

Response. Yes, I will.

Question 4. The Fish and Wildlife Service has stated in a Biological Opinion that

the Missouri River Master Water Control Manual must be revised to adopt a ‘‘spring

rise’’ in order to comply with the Endangered Species Act. How do you believe the

Corps of Engineers should respond to this direction?

Response. Senator, I understand that this is a complex, controversial project.

While I am not in a position to recommend at this point how the Corps of Engineers

should respond, you have my commitment that, if I am confirmed, this matter will

have my attention and I will work with the Corps of Engineers, other agencies, and

Congress to identify a solution. Under my leadership if I am confirmed, the Corps

will implement the law.

Question 5. Do you believe that the Corps of Engineers can comply with the Endangered Species Act without adopting a ‘‘spring rise’’ as part of the Missouri River

Master Water Control Manual?

Response. Senator, I am not in a position to comment at this point. However, you

have my commitment that, if confirmed, I will work to resolve this matter in a manner that takes into consideration all of the various interests in the region.

Question 6. Will you pledge to ensure that the Missouri River Master Water Control Manual is revised in complete accordance with Federal law, including the Endangered Species Act and the Fish and Wildlife Service Biological Opinion?

Response. Yes, Senator, I will. We will make this and all of our decisions within

the framework of all applicable laws and regulations.

Question 7. The Corps of Engineers did not recommend a ‘‘Preferred Alternative’’

in its Revised Draft Environmental Impact Statement on the revision of the Missouri River Master Water Control Manual. Do you believe that this was an appropriate step for the Corps to take?

Response. Although I am not yet familiar with all of the considerations that went

into this decision, it is my hope that the approach the Corps has taken will encourage a fair and balanced public review of all alternative proposed changes to the

Master Manual.

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Question 8. The Corps of Engineers is scheduled to release a final Environmental

Impact Statement on the revision of the Missouri River Master Water Control Manual in May of 2002. Do you intend to meet this deadline?

Response. If I am confirmed, I have every intention of meeting this deadline.

Question 9. Will you act to ensure that the Corps makes a recommendation for

managing the river by May of 2002 that fully complies with Federal law and is

based upon sound, scientific research, including the 2000 Fish and Wildlife Service

Biological Opinion?

Response. Yes, Senator, I will if confirmed. The considerable body of knowledge

gained thus far and expected over the coming months, including the public comments, will be fully considered in making a decision on a Preferred Alternative in

2002.

WETLANDS

Question 10. What are your views on the regulation and protection of wetlands,

and how do you intend to carry out your duties as the nation’s primary wetlands

regulator?

Response. I believe that the Corps of Engineers plays a critical role in protecting

the aquatic environment, including wetlands, of this Nation. The Corps has significantly strengthened the protection of wetlands over the past 20 years through its

regulatory program. If confirmed, I intend to maintain the level of protection of the

aquatic environment, including the Nation’s vital wetland resource, and even improve on the protection that currently exists.

Question 11. The National Academy of Sciences has made disturbing findings concerning the Corps’ implementation of the wetlands regulatory program. Among

other things, the National Academy of Sciences has found that ‘‘support for regulatory decisionmaking is inadequate’’ and that the goal of no net loss of wetlands

is not being met for wetland functions by the mitigation program. If confirmed, what

steps would you take to address these problems?

Response.

If confirmed, I will strongly advocate a level of resources for the Corps regulatory

program that will ensure that proper decisions can be made. I will work to ensure

that the Corps focuses on important ecological issues in its regulatory program and

works with the States and others to leverage Federal, State and local resources to

a common goal of increased protection of the aquatic environment. I am concerned,

as I know the Corps is concerned, with the results of the National Academy of

Sciences Report. The focus of the report is on the need for the Corps to increase

compliance with issued permits. I will work with the Corps to improve compliance

with issued permits and to achieve the successful mitigation for wetland impacts,

so that we can ensure that the no overall net loss of wetlands goal is attained in

the program.

CORPS REFORM

Question 12. In your responses to questions posed by the Armed Services Committee, you stated that in your view the Corps does not need to make fundamental

changes in the way it operates. What is your view of the conclusions and recommendations regarding the Corps of Engineers reached by the Army Inspector

General, the National Academy of Sciences, and the General Accounting Office in

relation to the Upper Mississippi locks and dams study?

Response.

The Corps processes have been evaluated by the national Academy of Sciences

and found to be basically sound. At this point I do not believe fundamental changes

are necessary. If confirmed, I will work with the Corps to identify changes that

would improve the service of the Corps to the Nation.

Question 13. Would you support the establishment of a policy that would allow

major Corps decisions to be reviewed independently to ensure that major projects

are economically and environmentally sound?

Response. If I am confirmed, I will actively examine the question of independent

review, in consultation with the Chief of Engineers, other within the executive

branch, and the National Academy of Sciences. Whatever improvements may be

made must not appreciably increase the cost or time of the already overly long planning process. I will maintain close communications with Congress throughout this

process.

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SNAKE RIVER SALMON

Question 14. A Federal court found the four lower Snake River dams in Eastern

Washington to be in violation of the Clean Water Act and ordered the U.S. Army

Corps of Engineers, as the operators of those dams, to comply with the Act. It is

my understanding that the Corps has yet to comply with this order. How do you

intend to comply with the water quality standards and what is your timeframe for

doing so?

Response. Senator, this is a very important issue and, if I am confirmed, I commit

to working closely with the Army General Counsel, the Corps of Engineers, the Environmental Protection Agency, local and State Governments, and the Congress on

water quality issues impacting the Snake River Dams.

Question 15. In December of 2000, the National Marine Fisheries Service released

a final Biological Opinion on the Federal Columbia River Power System. In that Biological Opinion, the National Marine Fisheries Service states that the removal of

the four lower Snake River dams is the surest way to ensure the protection and recovery of salmon in the Snake River. If removing the lower Snake River dams is

demonstrated to be the most cost-effective way to comply with both the Clean Water

Act and the Endangered Species Act, would you support removal of the dams?

Response. Senator, as I understand it, the National Marine Fisheries Service’s Biological Opinion put into place a broad and complex plan of measures to achieve the

recovery of the endangered fish species. This plan does not envision a decision on

dam removal at this time. There are many unresolved issues associated with the

Clean Water Act and how they affect the dams on the Snake River. Given the ongoing efforts on salmon recovery and water quality, I am not in a position to speculate

on what conditions would need to exist for me to recommend removal of the dams.

Question 16. Do you believe that the Corps of Engineers currently has authority

to remove the dams to comply with Federal laws and treaties?

Response. It is my understanding that they do not.

Question 17. In the US Army Corps of Engineers’ most recent Lower Snake River

Juvenile Salmon Migration Feasibility Study Newsletter (August 2001), the Corps

states that ‘‘the only Federal project we could find that has received more public

comments than this FR/IS [Feasibility Report/Environmental Impact Statement] is

the U.S. Forest Service Roadless Initiative . . . . Interest in the project was dispersed over the entire country . . . It appears that no other project—including the

Florida Everglades, the Missouri River Master Manual revision, and the Headwaters Agreement (redwoods)—approached this level of public interest.’’ What is

your timeline for completing your feasibility analysis and responding to the public

and Congress about this Nation issue?

Response. Senator, it is my understanding that the Corps of Engineers’ current

schedule calls for completion of a Final Feasibility Report and Environmental Impact Statement with a Preferred alternative in April 2002.

RESPONSES OF PAUL MICHAEL (MIKE) PARKER TO ADDITIONAL QUESTIONS FROM

SENATOR CORZINE

Question 1. New Jersey’s identity and tourist economy are closely linked to its 127

miles of shoreline and beaches. Through the Corps of Engineers, the Federal Government has played a vital role in keeping our beaches healthy through beach replenishment and shoreline restoration projects. These projects help to protect shore

communities from storm damage, and are extremely important to tourism. What is

your view of the importance of these projects? Would you give them high priority

in your role as Assistant Secretary?

Response. It is my view that shore protection projects play a vital role in the safety and economic well being of coastal areas. If confirmed, I will work within the Administration and with the Congress to increase understanding of the contributions

of these projects, which are comparable to the benefits of flood control, commercial

navigation, and environmental projects.

Question 2. Earlier this year, the Administration proposed changes to the beach

nourishment cost share formulas. I opposed these changes because I think it is unfair to change the rules after projects have been agreed to and local sponsors have

committed to contributing their share. Do you believe that it is the Federal Government’s responsibility to honor commitments to its non-Federal partners such as

have been made in beach nourishment agreements?

Response. I certainly believe the Federal Government should honor it commitments. One of the most difficult aspects of making any change in policy or law is

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the need to balance the new benefits to be achieved by the change against the effects on existing government activities.

Question 3. On September 26, 2000, the Assistant Secretary of the Army signed

a Memorandum of Agreement (MOA) with the U.S. EPA. The MOA laid out specific

actions to address contamination levels in materials that will be placed in the Historic Area Remediation Site (HARS). If confirmed, will you work to expedite completion of the terms of the MOA, which is already behind schedule?

Response. If confirmed as Assistant Secretary of the Army (Civil Works), I will

work with EPA to expedite completion of the terms of the MOA concerning materials to be placed in the HARS.

RESPONSES OF PAUL MICHAEL (MIKE) PARKER TO ADDITIONAL QUESTIONS FROM

SENATOR DASCHLE

MISSOURI RIVER MASTER MANUAL

Question 1. The revision of the Missouri River Master Water Control Manual has

been ongoing for the last 12 years. Last August, the Corps of Engineers released

a Revised Draft Environmental Impact Statement that failed to recommend any

Preferred Alternative for managing the river. If confirmed, will you commit to revising the master manual in a timely manner and to ensure that the revision fully

complies with all Federal laws, including the Endangered Species Act?

Response. Yes, I will. If I am confirmed, I will ensure that all decisions will be

made within the framework of applicable laws and regulations, including the Endangered Species Act, and to consult with the Congress before finalizing any decisions.

RESPONSES OF PAUL MICHAEL (MIKE) PARKER TO ADDITIONAL QUESTIONS FROM

SENATOR CLINTON

Question 1. If confirmed, will you work closely with me and other members of the

New York delegation with respect to the Corps’ emergency response efforts associated with the horrific terrorist attack on the World Trade Center in New York City

on September11, 2001?

Response. Yes, Senator. The Corps of Engineers has deployed to New York City

experts in the fields of urban search and rescue, structural engineering support, and

debris removal and management. These experts were on the ground soon after the

horrific event occurred. If I am confirmed, my commitment will join that of the

Corps that these resources will remain deployed for as long as the citizens of New

York need them.

Question 2. Will you work to ensure that all necessary and appropriate measures

are being taken with regard to response efforts at the World Trade Center site to

protect human health and the environment?

Response. Yes. The Corps has a long and extremely successful track record of incorporating applicable Federal, State, and city health and environmental protection

requirements into its activities, including its emergency response and recovery activities. This applies to activities carried out by both Corps personnel and Corps contractors. If I am confirmed, I will work with the Corps, EPA and Health and Human

Services as the Federal involvement in response and recovery continues, to ensure

all health and environmental issues are addressed.

Question 3. Will you work with the delegation and the committee to ensure that

we learn from this experience and make any necessary and appropriate changes to

the Corps’ emergency response capabilities?

Response. I place a high priority on incorporating lessons learned into ongoing activities and, if I am confirmed, I will work with the Corps and all interested parties

to examine the scope of Corps emergency response authorities, and capabilities and

to rapidly pursue improvements to these authorities should we determine impediments to effective response exist.

STATEMENT OF MARY E. PETERS, NOMINATED TO BE ADMINISTRATOR, FEDERAL

HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION

Mr. Chairman, members of the committee, thank you for the opportunity to appear before you today as you consider my nomination for Administrator of the Federal Highway Administration. I am sincerely honored to have been nominated for

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this position by President Bush, with the concurrence of Secretary Mineta. Should

you choose to confirm me I look forward to working with this committee, each of

you, and your staff to administer the Federal highway program. I recognize the historic contributions this committee has made to surface transportation and the key

role it has played in shaping national transportation policy.

Transportation affects every person in our country and each one of them, every

man, woman and child, has the right to expect a safe, accessible, affordable and reliable transportation system. This expectation should be honored, whether it be that

of a child living within tribal Nation boundaries who needs an education; a person

with disabilities, like my own brother, who needs access to training services; parents

who need to spend less time commuting and more time with their children, or a senior citizen who needs mobility options. It is for these, our ultimate customers, that

we provide transportation services.

Transportation that is responsive to the citizens and businesses we serve is vitally

important to our nation’s economic health and the quality of life of every American.

There are a number of factors to be considered in ensuring that transportation

meets these needs.

I would like to mention four of them today national security, public safety, quality

of life, and commerce. I would normally always mention safety first. However, after

the terrorist attacks on September 11, I thought it important not to distinguish between public safety and national security on a priority basis.

The Interstate Highway System met a need identified during World War II, providing a coast-to-coast highway system that would allow this country to efficiently

move troops and equipment, and respond to natural disasters. While the system is

now complete, it is essential that it be operated and maintained in a manner that

continues to enable the safe and efficient mobilization of military forces and deployment of disaster response resources. As last week’s tragic events demonstrated, it

is essential that our highway system, indeed our entire transportation system, dependably serve public safety, disaster response and recovery, and other national security requirements.

Transportation is important to public safety in a number of aspects, including

safety of the infrastructure itself and the ability of police, fire and other emergency

response personnel to reach the incidents to which they are responding. Most importantly, we must make our highways safer for all who use them. Too many die or

are injured on our roads. In addition, if an ambulance is stuck in traffic, or a fire

truck cannot reach the blaze, our public safety needs cannot be met. An efficient,

effective transportation system is a crucial component of public safety.

Mobility is a key component to a good quality of life. The ability to safely, efficiently and predictably get to our jobs, our children’s activities, our religious services, to obtain medical services, shop for our needs or take a vacation are all affected

by our nation’s transportation systems.

Economic growth and our ability to compete in a global economy are dependent

on transportation systems and services. As Secretary Mineta has mentioned, when

he served as Mayor of San Jose, California, he learned that transportation was the

most effective tool available to him in fostering economic development. The ability

for commerce to move in a seamless, efficient transportation system can position our

country to remain a leader in the world economy or inhibit our ability to do so.

Building the Interstate Highway System and designating the National Highway

System were strong steps toward ensuring viable interstate commerce. Now we

must ensure that the operation of that system supports, rather than hinders, commerce.

To respond to these factors, if I am confirmed, I would immediately focus on several priority areas. These are highway safety, environmental streamlining, stewardship of public funds, congestion and bottlenecks, and of course reauthorization.

While progress has been made, more than 40,000 persons lose their lives every

year in highway crashes, and more than 3 million are injured. Ninety-four percent

of all transportation fatalities occur on highways, and if confirmed I would make

it a top priority to improve highway safety. Using the three-pronged approach of engineering, enforcement and education we can improve our safety record and reduce

lives lost on the nation’s highways. We must ensure that available funds are spent

in ways that generate the greatest possible improvements for our investment. Rumble strips, for example, are an excellent, relatively low-cost, way to reduce run-offthe-road crashes that occur predominantly on rural two-lane roadway sections. Another area of emphasis is work zone safety, both for highway workers and the public.

I believe that we can be respectful stewards of the environment while improving

review processes so they are more efficient and less duplicative. Secretary Mineta

has said that taking longer does not necessarily result in a better project. If conVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00361 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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firmed, I would work with you, my fellow modal administrators, State and local officials, the environmental community, industry and others to develop methods for

streamlining the environmental approval processes while remaining mindful of the

critical importance of environmental stewardship.

In my position as Director of the Arizona Department of Transportation, I frequently reminded people in my Agency that the funds we had been entrusted with

to accomplish our mission were indeed the public’s money. I bring that strong belief

to the position for which I have been nominated, and if confirmed will work to further improve and strengthen oversight and accountability of the public funds entrusted to the Federal Highway Administration. This includes the responsibility to

accurately and completely estimate and disclose costs at the onset of all projects,

as well as to monitor progress and expenditures during the life of projects to ensure

we indeed get what we are paying for.

Congestion and bottlenecks have a detrimental effect on air quality, commerce,

and our overall quality of life; it is both expensive and aggravating. This growing

level of congestion is, of course, the result of demand significantly outpacing capacity; however, the solution is not just to add capacity. Congestion must be approached from a systemic and operational standpoint, using a variety of tools including technology, intermodal and multimodal solutions as well as capacity improvements. In addition, there are a number of options to complete construction projects

more quickly once they are approved. If confirmed, I would make relieving congestion a top priority.

The Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) and the

Transportation Equity Act for the 21st Century (TEA–21) were landmark pieces of

legislation. These acts, including firewalls, minimum guarantees and flexibility provided the funding and tools that allowed transportation directors, such as myself,

to be significantly more responsive in meeting the State’s transportation needs. The

upcoming 2003 Transportation Reauthorization provides an opportunity for us collectively to build on these successes as well as to be forward-focused on the transportation challenges and opportunities in the 21st Century. We can take this opportunity to encourage innovation and take advantage of the exponential gains possible

when the public and private sectors collaborate to meet these challenges. If confirmed, I look forward to working with you on transportation reauthorization.

I have spent more than 15 years in the transportation field. I have had the opportunity to be involved in a number of local, regional and national transportation

issues as State Director of Transportation in Arizona. In that capacity, I had responsibility for highway, transit, rail and aviation transportation functions, as well as

motor carrier programs, driver licensing and vehicle registration, and tax collection

and distribution. This experience afforded me the opportunity to recognize the importance of dealing systemically and inclusively with issues, remaining mindful of

the integration of the various modal functions in arriving at solutions for the many

transportation challenges in a rapidly growing State like Arizona.

I bring this experience to the position for which I have been nominated, as well

as knowledge in the technical aspects of planning, building and operating transportation systems, the use of technology in arriving at solutions, and a background in

the finance and economics of these systems. I have the management and leadership

skills to work with Secretary Mineta to lead the Federal Highway Administration

in a clear, strategic direction should I be confirmed.

Recognizing the many demands on your time, I sincerely appreciate the opportunity you have afforded me to appear before you today as you consider my nomination. I would be pleased to respond to any questions you may have.

September 20, 2001.

Senator BOB SMITH, Ranking Member,

Senate Environment and Public Works Committee,

Dirksen Senate Office Building,

Washington, DC 20510–6175.

DEAR SENATOR SMITH: It is with a great deal of pleasure that I contact you on behalf of my friend, constituent and fellow Arizonan, Mary Peters. I had hoped to be

with Mary this morning as the committee considers her nomination to be Administrator of the Federal Highway Administration. However, we have not yet eompleted

our work on the National Defense Authorization Act.

President Bush could not have picked a better candidate to head the Federal

Highway Administration, nor could the Senate consider a better nomination to administer the Department of Transportation’s highway transportation programs. As

head of the Arizona Department of Transportation (ADOT) Mary was known

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throughout the State as someone who was willing to listen to all sides of an issue

and work toward building both a consensus and a solution. Her fair and balanced

approach to the diverse transportation problems of Arizona has won her bipartisan

respect and praise throughout the state. I have no doubt that you will also be impressed with her fairness, her lmowledge and her commitment to our nation’s highway transportation needs.

Sincerely,

BOB STUMP,

Member of Congress.

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RESPONSES OF MARY E. PETERS TO ADDITIONAL QUESTIONS FROM SENATOR

JEFFORDS

Question 1. Do you support full implementation of the new 8-hour ozone standard,

including EPA & DOT guidance to the States on ensuring conformity of transportation plans with that standard? Please give the committee a date certain on when

the guidance will be issued.

Response. EPA has the responsibility to develop and implement health based air

quality standards. In July 1997, EPA promulgated stricter ozone and new fine particle standards which have redefined clean air and will have widespread impacts on

the transportation community in broader regions of the country.

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In October 2000, Congress amended the Clean Air Act to provide a 12-month

grace period for newly designated nonattainment areas to meet transportation conformity requirements.

The U.S. Court of Appeals had delayed the implementation of these revised standards. On February 27, 2001, the U.S. Supreme Court reversed the Court of Appeals

and upheld EPA’s authority to promulgate the standards. However, the Court also

concluded that EPA must develop a reasonable implementation strategy that would

reconcile what the Court considered to be ambiguous provisions of the Clean Air

Act.

EPA is developing the implementation plan for the 8-hour ozone standard to address the Court decision. State and local implementation guidance, including conformity guidance will be developed once details of the implementation plan are

known.

DOT and EPA have been working on new conformity guidance. As with the setting of the air quality standards, EPA has primary responsibility for developing the

conformity guidance. I will continue to work with the EPA to ensure that appropriate guidance is developed and that State and local transportation agencies will

have enough lead time and flexibility to address the conformity requirements.

Question 2. Increasing evidence from studies done in California and elsewhere indicate that the health and cancer risks associated with mobile source air toxics increase significantly above a certain volume of traffic, levels usually associated with

multi-lane highways. How should this information be incorporated into the NEPA

analysis done by DOT?

Response. In just March of this year, EPA identified 21 Mobile Source Air Toxics

(MSATs). It is important to note that in the Final Rule, EPA stated that they had

not found that all of these 21 MSATs to present a risk to public health. EPA will

evaluate the need for and appropriateness of additional mobile source air toxics controls for on-highway and nonroad sources, and their fuels. EPA has established a

Technical Analysis Plan to conduct research and analysis on MSATs. EPA has stated that they will conduct a future rulemaking by July 1, 2004, in which they will

revisit the feasibility and need for additional controls.

I will work closely with EPA to research mobile source air toxics to analyze the

feasibility and need for additional controls of highway engines and vehicles and

their fuels, and the need for additional project-level analysis conducted as part of

the NEPA review. As research results on air toxics emerge, FHWA will factor these

into its scoping process to determine how to address air toxics and the appropriate

methodology to employ.

Question 3. In the June 2000 article you submitted to the Arizona Chapter of the

Associated General Contractors, you state that Federal highway funding ‘‘should not

come with strings attached that tell us where and how to spend those dollars. Washington should not be allowed to dictate funding requirements to States in the new

authorization act.’’ Do you still believe that Congress should not send any requirements for highway funds distributed to States?

Response. I believe that, for the most part, the goals of the Federal Government

for the Federal-aid highway program and those of the State Departments of Transportation are mutually supportive. In my June 2000 article, I expressed the position

Arizona, like many States, holds that the Nation will better achieve its goals if State

and local governments have the flexibility and are accountable for addressing their

particular needs and issues. I presented the viewpoint of our Governor and the Arizona State Legislature. If my nomination is confirmed as Federal Highway Administrator, I will support and implement the laws of the United States.

Question 4. One program that comes with strings attached is the CMAQ program

which is provided to States with clean air conformity problems. The CMAQ program

prohibits funding for projects ‘‘which will result in the construction of new capacity

available to single occupant vehicles unless the project consists of a high occupancy

vehicle facility available to single occupant vehicles only at other than peak travel

times.’’ The purpose of the program is to encourage States to look at non-highway

solutions to road congestion. Examples include transit, better operation of existing

roadways, intelligent transportation systems, high occupancy vehicle lanes, etc. Do

you believe that we should eliminate the CMAQ program or significantly rewrite it

to allow funds to be used on new road construction?

Response. No, the CMAQ program should not be eliminated. When viewed in a

national context, the CMAQ program provides just the type of flexibility the States

need. In practice, it is Title 23’s most flexible program.

CMAQ program eligibility should not be expanded to include new road construction projects available to single occupant vehicles at other than peak travel times.

The strength of the CMAQ program is its inherent focus on improving the efficiency

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of the transportation network, including roads and transit, and assisting clean air

goals.

Question 5. Necessary transportation projects should go forward, and should advance in an efficient and timely way. But efficiency should not come at the expense

of environmental protection and enhancement. So-called ‘‘environmental streamlining’’ needs to address improvements to the decisionmaking process but it should

not involve a retreat from resource protection. How will you proceed with environmental streamlining?

Response. Through Section 1309 of TEA–21, the Congress gave strong direction

to streamline the environmental review process. I see this environmental streamlining mandate as having two parts: the need to reduce transportation project

delays and the need to continue to protect and enhance the environment. I believe

that substantial improvements can be made in delivering transportation projects in

a timely fashion while continuing to be good environmental stewards.

If confirmed, I will work with the Congress, the environmental community, and

others as I pursue environmental streamlining.

FHWA can and must take action. For example, as the lead Federal agency on

transportation projects, FHWA is uniquely positioned to bring together the various

agencies that participate in the development of transportation projects and programs. FHWA should build on prior efforts to do this at various scales, from the

national program to specific projects.

We should enhance cooperation with the State and local transportation agencies.

FHWA can do a better job of coordinating the Federal Government’s involvement

in those projects. FHWA should work with State and local agencies to improve their

understanding of legitimate Federal needs that stem from multiple Federal environmental statutes.

We should build on longstanding relationships with other Federal agencies that

have statutory responsibilities to review or approve transportation projects. One

promising area is the development of dispute resolution capabilities, to institutionalize in all agencies the skills needed to identify and address conflicts in a timely manner.

Question 6. TEA–21 directed the Secretary to develop a memorandum of understanding with Federal resource agencies to achieve environmental streamlining.

Such an MOU was executed in July 1999. Will you use this agreement as the basis

for continuing compliance with TEA–21 directives? Will you seek any additional

statutory measures to facilitate environmental streamlining?

Response. I would continue to use the July 1999 MOU. While I see the MOU as

setting the right framework, I believe that its main benefit will come from efforts

to implement it among the signatory agencies in offices around the country.

I have reached no firm conclusions about the need for statutory changes. I will

continue to evaluate this issue, and welcome the opportunity to work with the committee on this issue if I am confirmed.

Question 7. Local governments have been waiting for over 3 years since TEA–21

was passed for the Federal Highway Administration to issue final regulations that

allow local officials greater authority in the statewide planning process. TEA–21

made clear that there should be a substantially greater role for rural local officials

in the planning and funding allocation of Federal highway and transit funds. The

goal of this change in the law was to give rural officials more authority and to close

the gap between urban and rural officials in regard to participation in the planning

process. The comment period on these regulations closed in September 2000 and

FHWA has had more than enough time to issue a final rule. When can I expect a

final rule to be issued?

Response. I know the leadership of this committee wrote to Secretary Mineta in

March of this year asking the Department to withdraw its proposed rules and to

craft new proposals. However, I am aware of how important this issue is to both

State DOTs and local officials. The FHWA and FTA have advised State DOTS that

the TEA–21 requirements for consultation are in effect as statutory mandates, even

without any rulemaking changes.

I am very supportive of a variety of efforts to develop training and technical assistance and to develop and share best practices.

In Arizona, we successfully developed a new regionally based planning and programming process by bringing together the State DOT with regional planning agencies. They came to agreement on what is called the ‘‘Casa Grande Resolves.’’ One

of its guiding principles is that the planning process must include early and regular

dialog and interaction at the State and regional levels; and recognize the needs of

State, local and tribal governments, and regional organizations.

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I would work closely with the Secretary and other modal Administrators to foster

local official consultation.

Question 8. As you know, I believe that transportation and air quality planning

must go hand in hand. The conformity requirements of the Clean Air Act have stimulated smart growth efforts and protect future air quality. Will you support and

make sure that there is a constant and tight linkage between transportation planning and air quality goals?

Response. I will support the linkage between transportation planning and air

quality goals as defined in the Clean Air Act.

The CAA’s transportation provisions have been instrumental in reducing air pollution. Emissions reductions from motor vehicles have accounted for 84 percent of

the total emissions reductions of the six criteria pollutants since 1970. Technological

advancements driven by the Clean Air Act and EPA’s motor vehicle emission and

fuel standards have substantially reduced emissions, and these reductions are projected to continue well into the future.

RESPONSES OF MARY E. PETERS TO ADDITIONAL QUESTIONS FROM SENATOR

LIEBERMAN

Question 1. In the June 2000 article that you submitted to the Arizona Chapter

of the Associated General Contractors you state, ‘‘. . . preventing States from moving forward with critical congestion relief projects due to not achieving air-quality

goals that have no basis in science actually worsens the situation rather than

betters it. These counterproductive measures, intended to punish States that do not

comply with sometimes unachievable and unnecessary Federal mandates should be

erased from future authorization acts.’’

As you are aware, I am strongly committed to improving our nation’s air quality

and, because mobile sources are a significant contributor of air pollutants, I played

an instrumental role in formulating the conformity standards in the Clean Air Act.

Do you still believe, as your recent article would suggest, that these Federal mandates are ‘‘unnecessary’’ and ‘‘counterproductive?’’

Response. As FHWA Administrator I will do everything possible to help States

comply with the Clean Air Act, without the need for invoking sanctions, through

transportation programs that reduce congestion and reduce emissions. If sanctions

are triggered, I will ensure the law is carried out.

Question 2. A 2-year study released last year by the South Coast Air Quality Management District in California concluded that the highest community cancer risks,

as high as one cancer in every 300 to 400 people, were found in neighborhoods located within 2 kilometers on major freeway corridors. Will you require that the Administration perform a cancer risk analysis and provide a comprehensive review of

alternative for large urban highway expansions? Doesn’t NEPA require that alternatives capable of mitigating an effect as serious as cancer be considered?

Response. In just March of this year, EPA identified 21 Mobile Source Air Toxics

(MSATs). It is important to note that in the Final Rule, EPA stated that they had

not found that all of these 21 MSATs to present a risk to public health. EPA will

evaluate the need for and appropriateness of additional mobile source air toxics controls for on-highway and nonroad sources, and their fuels. EPA has established a

Technical Analysis Plan to conduct research and analysis on MSATs. EPA has stated that they will conduct a future rulemaking by July 1, 2004, in which they will

revisit the feasibility and need for additional controls.

I will work closely with EPA to research mobile source air toxics to analyze the

feasibility and need for additional controls of highway engines and vehicles and

their fuels, and the need for additional project-level analysis conducted as part of

the NEPA review. As research results on air toxics emerge, FHWA will factor these

into its scoping process to determine how to address air toxics and the appropriate

methodology to employ.

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NOMINATIONS OF THE 107th CONGRESS,

FIRST SESSION

WEDNESDAY, OCTOBER 17, 2001

U.S. SENATE,

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

Washington, DC.

The committee met, pursuant to notice, at 9:33 a.m. in room 406,

Senate Dirksen Building, Hon. James Jeffords (chairman of the

committee) presiding.

CONSIDERATION OF THE NOMINATIONS OF WILLIAM W.

BAXTER, KIMBERLY THERESE NELSON, AND STEVEN A.

WILLIAMS

Present: Senator Jeffords.

Also present: Senators Roberts and Thompson.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS,

U.S. SENATOR FROM THE STATE OF VERMONT

Senator JEFFORDS. The hearing will come to order.

Good morning to everyone. It is a pleasure to have you with us.

Given the events of the past 5 weeks, I want each of the nominees

to know that your continued willingness to be a public servant is

admirable and I appreciate that. The positions that you have been

nominated to fill will help the country remain strong and committed to people during these threatening times.

I would like to let everyone know how we are going to proceed

this morning. I will recognize first Senator Thompson and then

Senator Frist if he arrives for Mr. Baxter, and I understand Senator Thompson has another hearing on bioterrorism that he needs

to get to. So we will let you go on your way whenever you desire.

Then I think we’ll just go right ahead and proceed. I would like

to recognize Senator Thompson to introduce our nominee.

STATEMENT OF HON. FRED THOMPSON, U.S. SENATOR FROM

THE STATE OF TENNESSEE

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

very pleased to be here today to introduce a fellow Tennesseean

and a good friend of mine, Bill Baxter, who has been nominated by

the president to serve on the board of directors for the Tennessee

Valley Authority. I want to thank you, Mr. Chairman, for so expeditiously scheduling this hearing so we might consider Mr. Baxter’s

nomination before we adjourn. I want to thank you for inviting me

here today and to be able to speak and participate with Senator

Lieberman on our hearing on bioterrorism, which has just started.

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Mr. Chairman, as you know, the Tennessee Valley Authority is

the nation’s largest public power system. It serves 158 local power

distributors and 62 industrial customers, the majority of whom are

located in Tennessee. TVA also manages the Tennessee River system, our nation’s fifth largest, providing flood control and navigation on over 800 miles of commercially navigable waterway. And

TVA is headquartered in Knoxville, the hometown of the nominee

that you are here to consider today, Bill Baxter.

Bill is a long-time friend who has had a distinguished record of

service in both the public and private sectors in Tennessee. He is

chairman of a family owned business, Holston Gases, Inc., a distributor of propane, industrial, medical and laboratory gases. From

December 1997 to January of 2001, he served as Commissioner of

the Tennessee Department of Economic and Community Development. During his tenure, the State of Tennessee attracted an impressive level of private investment, as well as numerous new jobs.

This extensive experience in both the public and private sectors

will benefit Bill, as well as TVA should he be confirmed for this position.

I agree with my colleague Senator Frist that TVA needs a new

management structure to better prepare it to meet the challenges

that it faces today, from electricity restructuring to curbing air pollution in the Great Smoky Mountain National Park, and continuing

to reduce its level of debt. The job will not be easy. TVA needs

leaders who have business experience, management experience and

leadership ability. Bill Baxter has all three.

So I am pleased that Bill’s nomination, if confirmed by the Senate, will ensure that Tennessee continues to be represented on the

TVA Board. The majority of TVA’s operations is located in Tennessee, and Tennessee should have a prominent voice in how TVA

is managed. I’m confident that Bill Baxter will be a strong voice

for the entire Tennessee Valley region if he is confirmed to serve

on this board.

So it is with great pleasure that I have the opportunity to be

here to introduce to you Bill Baxter of Tennessee.

Senator JEFFORDS. Thank you very much, Senator.

Mr. Baxter, do you have members of your family here that you

would like to introduce?

Mr. BAXTER. I do, Mr. Chairman. My wife, Ginger Baxter, is

here.

Senator JEFFORDS. We are pleased to have you with us.

Mr. BAXTER. Thank you, Senator.

Senator THOMPSON. Thank you.

Senator JEFFORDS. You now have 5 minutes to give your statement, and if it’s longer than that, we will put it in the record for

you. And so, go ahead.

STATEMENT OF WILLIAM W. BAXTER, NOMINATED TO BE A

MEMBER OF THE BOARD OF DIRECTORS OF THE TENNESSEE VALLEY AUTHORITY

Mr. BAXTER. Thank you very much. I will take less than 5 minutes, I can assure you.

I am honored to be here today as President Bush’s nominee as

a Director of the Tennessee Valley Authority, and I am personally

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very grateful for the support and encouragement of Senator

Thompson and Senator Frist from my home State. I appreciate, Mr.

Chairman, you and the committee expediting this hearing so that

we can answer any questions you might have and get to work if

you see fit to put me to work.

I look forward to joining Glenn McCullough and Skila Harris

who have come before this committee on the TVA Board and working with them as well.

As the Senator mentioned, I am a life-long resident of Knoxville,

which is the home of the headquarters of Tennessee Valley Authority. My family and my business have been users of TVA power for

five decades. And so I appreciate the critical importance of TVA to

our area.

For the last 3 years as Commissioner of Economic Development

for the State of Tennessee, I have come to understand more fully

the crucial role that TVA plays in the economic prosperity of the

entire seven-State region that it serves. And as the nation’s largest

public power producer and steward of the nation’s fifth largest

river system, TVA has and will continue to play a pivotal role in

the economic future of our region.

Several challenges lay immediately, however, in TVA’s future.

First and foremost is the job of continuing to provide reliable, lowcost electricity to the Tennessee Valley, a region that has been

growing at a rate of 3 to 4 percent annually, exceeding the national

average considerably. To support this growth, a primary effort of

TVA in the immediate future will be considering increasing its base

generating capacity. We want to make sure that the lights don’t go

out in the Tennessee Valley for lack of prudent planning or wise,

forward-looking investment.

Second, TVA should be a leader in addressing air pollution issues

that come with fossil fuel power plants. TVA’s record investments

thus far in pollution abatement measures, along with its recent announcements of significant new investments over the next few

years will continue. Today, we know that the users of electricity

want both reliable, affordable power and responsible environmental

conduct of business. TVA and all other power producers must strive

to achieve both.

I grew up in the Smoky Mountains, Mr. Chairman, and I still

hike there on a regular basis with my family and friends, and I’m

as interested as anyone in that region in the long-term health of

these mountains and the preservation of their beauty.

Third, the restructuring of the electric production and transmission industry in our country will continue, with lessons learned

from California and elsewhere. TVA must continue its earnest efforts to prepare for this restructuring. Significant progress has already been made. Senator Frist, Senator Thompson, Senator Cochran, Congressman Ed Bryant from Tennessee and many others

have been working on this very complex issue. I’m happy to have

developed a working relationship with many of TVA’s major customers during my 3 years in economic development with the State

of Tennessee, and I for one believe that listening to your customers

is a good place to start when talking about restructuring.

Likewise, constructive dialog with the investor-owned utilities

can be very beneficial to all of our understanding of the proper role

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of TVA in the restructured environment. And I would look forward

to productive conversations with the executives of those investorowned utilities as we move forward thoughtfully to the restructured marketplace.

Fourth, the prudent management and stewardship of the Tennessee River system is one of the fundamental missions of TVA. In

fact, it was the original mission of TVA, and from my perspective

TVA has done a superlative job in this area and improvements continue to be made every year. Successfully performing this core responsibility will continue to be a high priority at TVA and, again,

listening to our customers, all the users of the Tennessee River system, will be the key to making those continuous improvements.

I grew up on Norris Lake, which is the first lake created by the

first TVA-built dam, and my family’s business has been located on

the Tennessee River for the last four decades, so I know first-hand

the importance of TVA’s river stewardship.

And fifth, TVA is a $7 billion a year business, and it must be run

with best business practices. I look forward to bringing my 20

years of experience in the private sector to the TVA organization,

and doing everything I can to ensure that best business practices

are employed and the best possible financial results are produced.

As you know, TVA has a very large debt, but the good news is

that this debt is being paid down in a steady, responsible manner.

In fact, today TVA’s interest expense as a percent of its revenues

is at the lowest rate in the past 20 years. Real progress is being

made on this critical issue. The stimulating business challenge at

TVA is to continue to reduce that debt, while at the same time investing prudently in additional generating capacity, meeting our

environmental responsibilities, promoting economic development in

the Valley, and managing the Tennessee River system in a professional manner, all the while maintaining rates as low and steady

and predictable as possible for the families and businesses of the

Tennessee Valley.

This is a business challenge of the highest order, and I look forward to being fully involved in ensuring TVA’s performance in

these areas.

Once again, I would like to thank the Chairman and the committee for expediting this process, as I know you have many important issues to deal with today as we speak. And if I could on a personal note as an American citizen and as a father of four, I want

to express my appreciation to each of the members of this committee for all you’re doing to make our country strong and to preserve our liberties for the next generation.

Thank you very much.

Senator JEFFORDS. Thank you for an excellent statement.

We have two other nominees this morning. I would like Ms. Nelson and Mr. Williams to come forward please.

First, I will ask each of you, do you have members of your family

with you, and if you do, would you like to introduce them?

Ms. NELSON. I do, Senator. I have my husband, Kevin Cadden,

my father, George Nelson, my aunt Florence Bojack, and my two

girls Kelsey and Mackenzie.

Senator JEFFORDS. Mr. Williams?

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Mr. WILLIAMS. Thank you, Mr. Chairman. I have my wife Beth

behind me, my daughter Heidi, my mother Mary Jane Williams,

my in-laws Elson and Jane Grim, and my sister Wendy and her

husband, John Kelsey.

Senator JEFFORDS. Well, that’s an excellent representation.

Ms. Nelson, why don’t you proceed? You have 5 minutes.

STATEMENT OF KIMBERLY TERESE NELSON, NOMINATED TO

BE ASSISTANT ADMINISTRATOR, OFFICE OF ENVIRONMENTAL INFORMATION, U.S. ENVIRONMENTAL PROTECTION

AGENCY

Ms. NELSON. Thank you, Senator.

Good morning. It is certainly a privilege for me to appear before

you as the nominee to be the Assistant Administrator for Environmental Information and the Chief Information Officer for the

United States Environmental Protection Agency. I am honored that

President Bush has nominated me to serve with Administrator

Whitman in this Administration.

As the former Chief Information Officer for the Commonwealth

of Pennsylvania’s Department of Environmental Protection, I understand first-hand the critical role that environmental information

plays in sound environmental decisionmaking. I also understand

how rapid, sweeping and profound information technology advancements are creating expectations for government to keep pace with

the private sector.

The need for strong public administrators has never been more

evident than during the past month, when our country experienced

such devastating loss—and you alluded to that. The events on September 11 have crystallized the nation’s understanding of its reliance on technology for very basic operations, for human communications and comprehension of the disaster that we all experienced. This reliance now causes all public administrators, and particularly those in the technology and information arena, to reexamine and strengthen our programs, our security systems and the

quality of our information. I am both honored and challenged to

contribute to our nation’s preparedness in these areas.

I believe it is the obligation of all government officials to create

and manage organizations that allow our citizens to access information and services with minimal bureaucratic barriers. The information that we provide must be of exceptional quality and supported with the analytical tools which facilitate its use for assessing and managing risk, and for measuring our environmental improvements. The services that we provide must be fast and errorfree, and most importantly these services must be convenient to the

public, even if that means crossing traditional bureaucratic lines.

Today, EPA and the States are working hard to provide consistently high environmental information. We know that the challenges we face in the 21st century cannot be solved by EPA alone,

but require the Agency to partner and cooperate with many others.

We must join with States, tribes, local governments, businesses

and communities to design and disseminate the kind of information

products that provide a clear understanding of environmental conditions and solutions.

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If confirmed, I intend to promote the President’s principles for

government reform. I will assist Administrator Whitman in this effort by helping to sharpen the focus of EPA’s environmental information strategies, reduce the burden on industries, promote intergovernmental cooperation and apply some of the best practices to

achieve internal efficiencies. I am fortunate that EPA has begun

this process. I hope to use many of the solid efforts already underway as a springboard to accomplish some lasting change.

It is my vision that one day EPA’s staff, the Agency’s partners

and the general public will be able to easily access all relevant nonsensitive environmental information about our regulated facilities

and our natural resources; that we will be able to improve the

interaction we have and the understanding of the regulating community, including the way they report to us; that we more effectively measure environmental conditions; and finally that we can

enhance the understanding of the interrelationship between our activities at EPA, the compliance behavior of companies, pollution

prevention strategies and environmental improvements.

I believe these activities will contribute significantly toward the

burden reduction, the improved data quality and security, and

more informed environmental decisionmaking. And I believe we

can do this while continuing to meet the public’s demand for better

environmental information in a more secure environment.

I am a strong believer in the commitment to work in government

service. My family has a long history of public service. My father,

who is here today, retired from the Navy Department with 40

years. My younger brother just retired from the Air Force with 20

years of service. And I have two older brothers who both served

during the Vietnam Conflict. After 28 years in State government,

my husband now is here in Washington as Director of External Affairs for the Federal Energy Regulatory Commission.

I, too, have served in government—22 years with the Commonwealth of Pennsylvania. More than half of that time I spent with

the Department of Environmental Protection. During that time, I

helped develop and implement a blueprint for integrating our program-specific information systems. I managed several process improvement teams that significantly changed both the permitting

and the compliance activities of the Agency, and made that information publicly available in an award-winning information system.

And finally, I created for the first time in that Department their

Office of Information Technology, which was the first executivelevel CIO in the Department.

I am now both ready and enthusiastic to join public service here

at the Federal level as the Assistant Administrator at EPA. I am

confident I can bring the necessary vision, leadership and experience to work with our partners to achieve those things I have addressed today.

Should I be confirmed by the Senate, I look forward to working

with you, Chairman Jeffords and other members of the committee

and Congress, Administrator Whitman and the entire Administration to make the environment better for all Americans and to be

responsive to the citizens we serve.

Thank you and I would be happy to answer any questions you

or other members may have.

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Senator JEFFORDS. Thank you very much.

We have Senator Pat Roberts with us, and I understand that you

probably have a reason for being here.

STATEMENT OF HON. PAT ROBERTS, U.S. SENATOR FROM THE

STATE OF KANSAS

Senator ROBERTS. Yes—the gentleman in the middle with the

smile on his face, who has been a good friend for years. Is it appropriate that I say my remarks now, sir?

Senator JEFFORDS. Yes, it is very appropriate. He is going to

speak with either before or after option.

Senator ROBERTS. Steve, what do you think?

[Laughter.]

Mr. WILLIAMS. I think you are a tough act to follow, but I would

like to try.

Senator ROBERTS. I apologize for being late, Mr. Chairman. The

Wilson Bridge was really not very cooperative. It isn’t like it is at

home, Steve, as you well know.

Mr. Chairman, Ranking Member and distinguished committee

colleagues, it is with great pleasure to introduce to the committee

Mr. Steve Williams, nominated to become the next Fish and Wildlife Service Director. Steve is professionally qualified for this important conservation position. During his 6-year tenure as Secretary of Kansas Wildlife and Parks, he reinvigorated our State,

Mr. Chairman, and all of Kansans interests by fulfilling the Department’s mission of conserving and enhancing the natural heritage of Kansas, its wildlife and its habitats. He’s a biologist. He’s

an outdoorsman, so he understands the unique duties the Director

has in really balancing the conservation requirements with recreation opportunities.

What impresses me about Steve is that he is not a desk-bound

manager. He visits all of our State parks; has done that. He listens

to park employees and to local officials. And he coordinates with

them their improvements to their operations. He talks with producers. He talked with landowners about working with him on improving water quality and wildlife habitat. I have been there. I

have heard him. I have worked with him in that respect.

He listens to the recreationists, working to improve access for

hiking and camping and bird-watching. I am sure he will continue

this practice in visiting Fish and Wildlife Service operations all

across our country. He has proven to work with all environmental

stakeholders. Our Kansas hunters, our fishermen really appreciate

his very innovative programs to open up the fishing and hunting

opportunities to Kansans on private lands. The Walk and Hunting

Area opens up private lands for public use. This program, his program is popular, with 700,000 acres that have been enrolled. For

fishermen, he has created the Fishing Impoundment and Stream

Habitats, opening up farm ponds to public fishing.

I hope the committee is also aware that Steve’s work and communications with the environmental organizations is appreciated.

Charles Benjamin of the Kansas Sierra Club actually commented

on Steve’s nomination, ‘‘I can’t think of a better person for that

job.’’

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With Steve’s success in Kansas, I am confident that he will make

very popular improvements to the National Wildlife Refuge System, and fairly administrate the Federal wildlife laws and the Endangered Species Act. Therefore, I hope the committee will approve

his nomination so the entire Senate can confirm him as soon as

possible.

Mr. Chairman, that is the end of the prepared remarks that I

helped write, by the way, but I would say that knowing Steve as

I have known him back through the years, production agriculture

and some in the environmental community have had what I call a

rather meaningful dialog in past decades. I won’t call is a sheep

and cattle war, but I think you can get the drift of my conservation, and also conversation. And so if there was one man that was

the oil-can person in all of this, it was Steve. Steve could talk with

those who were the landowners, the farmers, the ranchers and the

environmentalists and the conservationists, and somehow bring

that together to where today in Kansas we don’t have a problem.

We don’t have controversy.

And so this is again the oil-can person who did that job. I think

he’s a natural for the job on a national scale, and I am just delighted to be here to testify in his behalf, not only for the job he’s

going to do, but as a personal friend. And I thank the Chair for

indulging me.

Senator JEFFORDS. Thank you. As always whenever you speak,

you enlighten everybody’s day and make it a little bit better, and

it’s good to have you here. Stick around.

[Laughter.]

Senator JEFFORDS. Mr. Williams, please proceed.

STATEMENT OF STEVEN A. WILLIAMS, NOMINATED TO BE DIRECTOR, UNITED STATES FISH AND WILDLIFE SERVICE, U.S.

DEPARTMENT OF THE INTERIOR

Mr. WILLIAMS. Thank you.

Thank you very much, Senator Roberts, for those kind words.

If I could just indulge the chairman for a second, when I was introducing folks, I didn’t introduce my son. He is at Kansas State

University, probably should be in class, but he may be watching

over the Internet, and it is his birthday today.

Senator JEFFORDS. All right. We will allow you to do that.

Senator WILLIAMS. Thank you, Mr. Chairman.

Senator ROBERTS. Mr. Chairman, that is the home of the everoptimistic, but not so successful lately Wildcats, but hope springs

eternal, Mr. Chairman.

[Laughter.]

Mr. WILLIAMS. Mr. Chairman and members of the committee, it

is a great honor for me to be nominated by President Bush as the

Director of the Fish and Wildlife Service. I appreciate the confidence expressed by Secretary Gale Norton in my qualifications

and ability to lead this Agency, and also Senator Roberts’ confidence.

It really is an honor to be here today and to have the committee

consider my qualifications to lead our nation’s fish and wildlife conservation agency. Should I be confirmed by the Senate, I assure

you that I will eagerly assume the awesome responsibility of preVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00382 Fmt 6601 Sfmt 6601 78075 SENENV1 PsN: SENENV1
375

serving and promoting our nation’s fish and wildlife conservation

heritage.

I sit before you today as the nominee, and also as the Secretary

of the Kansas Department of Wildlife and Parks. I have served as

Director of this agency for the last six and a half years. My colleagues in the other 49 States have praised President Bush’s decision to nominate a State Director to this important Federal position. As a State fish and wildlife agency Director, I believe that I

bring certain qualifications, experience and perspective to this position that will benefit constituents in each of your States.

During the 44 years of my life, I have had the opportunity to

travel throughout much of this country. I was born in Bellows

Falls, Vermont while my family farmed in Westminster.

Senator JEFFORDS. I knew there was something really good about

you.

[Laughter.]

Mr. WILLIAMS. At that time, my family was farming in Westminster for markets in Boston and small towns in southern

Vermont. I grew up in rural areas of the northeast where I enjoyed

fishing, hiking, exploring fields and forests. I’ve spent the last 16

years working in State fish and wildlife agencies in three different

States. I started as a wildlife biologist and have been promoted to

administrative positions of ever-increasing responsibility.

I have managed State programs from a centralized location, relying on widely distributed geographic offices and personnel. I believe

that communicating and cooperating with individuals in organizations is the only effective means to accomplish positive fish and

wildlife management. This approach includes consideration of all

interested parties, partners and technical expertise. I believe that

common sense approaches to difficult resource issues are always in

the best interest of those involved. Under my leadership, as Senator Roberts alluded to, the Kansas Department of Wildlife and

Parks has initiated new partnerships with State agencies, agricultural organizations, conservation organizations and private individuals.

One of these was the walk-in hunting area program, again that

Senator Roberts mentioned. This program is a voluntary incentivebased program that has increased recreational opportunity, improved local economies and provided private landowners with income, all financed with the revenue from Kansas hunters. In just

6 years, the program has grown to somewhere around 10,000 acres

and Senator, this year we’re over 800,000 acres. We’ve just finished

up our sign-ups.

This and many other examples of private-public partnerships are

being practiced by State and Federal agencies across the country.

I hope to expand on such opportunities if I am confirmed in this

position.

The Fish and Wildlife Service is facing challenging times. Lawsuits concerning the listing of threatened and endangered species

and critical habitat designation has consumed much of the time

and financial resources of the agency. Fish hatcheries and refuges

require considerable attention and investment to maintain the existing infrastructure. Our law enforcement officers are stretched

thin as they attempt to deal with illegal trade in importation of

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wildlife. Ecological Services Offices face mounting project reviews

and additional demands on their time. The research component of

the Service has been somewhat diminished, and managers are

forced to make decisions sometimes without all the desired information.

Finally, relationships between the Service and States, sportsmen

and—women, the fishing and hunting industry, and private citizens I believe are strained. If confirmed as director, I will work

tirelessly to improve relationships, forge new partnerships and

solve issues confronting the agency. I have experienced some success by working cooperatively with disparate interest groups, by

challenging existing assumptions, by communicating a vision, and

by encouraging novel approaches to solve problems.

The mission of the Fish and Wildlife Service has expanded dramatically over the past few decades. However, two things remain

constant. The sportsmen and—women of the country have been the

primary financiers of fish and wildlife conservation. I would like to

take steps to shore up what was once a powerful relationship between the Service and our nation’s hunters and anglers. Second,

private landowners provide habitat for the majority of fish and

wildlife resources. I respect these landowners’ rights and I will

work cooperatively in their interest and in the interest of wildlife.

I will strive to strike a balance between the important issues of

endangered species protection, and the issues associated with preserving and promoting fishing and hunting in this country.

The list of issues confronting the new Director of the Fish and

Wildlife Service is considerable. However, with the support of this

Administration, Congress, States organizations and individuals, the

Service will rise to the challenge and improve our nation’s fish and

wildlife resources. Americans care deeply about fish and wildlife. If

confirmed as Director, I will approach the responsibilities of that

position with a passion to deliver programs, opportunities and a vision for the Service that includes protection and conservation for

the American public’s use and enjoyment.

I pledge to work cooperatively, collaboratively and through communication with all members of the U.S. Congress to assure that

we meet the needs and desires of the American public. We have an

impressive conservation heritage in this country. We must continue

the progress made by previous generations to assure that future

generations share in the wonderful blessings that we all enjoy.

Thank you, Mr. Chairman. I think my time is up.

[Laughter.]

Senator JEFFORDS. Right on the button, sir.

Mr. WILLIAMS. I appreciate your considering my qualifications.

Thank you.

Senator JEFFORDS. I am going to ask Mr. Williams a question

first, so that Senator Roberts can hear your I know very erudite

answer. But endangered species, both plants and animals—sea

lampreys, zebra mussels, water chestnut et cetera—are one of the

greatest threats to Lake Champlain and encroaching in other

areas. The U.S. Fish and Wildlife Service Lake Champlain Office

has helped coordinate their response in Vermont and New York

State and local agencies, and having just completed an environmental impact statement, is now ready to launch a full-scale sea

377

lamprey control program. The Lake Champlain Office, however,

lacks the personnel and resources needed to complete this work.

How would you support the work of the Service’s in this partnership in protecting the native species that inhabit Lake Champlain?

Mr. WILLIAMS. Well, I would start out by saying that I’ve had the

opportunity over the past 2 years to serve on the Invasive Species

Advisory Committee, which advises the National Invasive Species

Council. I don’t pretend to be an expert on invasive species, but I

have had I believe a good exposure to those issues. And you are

correct, they are some of the most critical issues facing the country

in terms of environmental issues.

With respect to Lake Champlain, I can assure you that if I am

confirmed I will take a very close look at that and look at how resources are divided amongst the facilities in the Service. And I can

assure you that both Secretary Norton and myself and other folks

in the Department of Interior recognize this problem and are prepared to go to work to do our best to control where we can and

solve invasive species issues in other parts of the country.

Senator JEFFORDS. In the Silvio Conte National Fish and Wildlife

Refuge in the Nulhegan Basin, the Service works with Vermont,

New Hampshire and other States, nongovernment organizations,

local governments and citizens to protect and enhance fish and

wildlife resources within the Connecticut River Valley, using seed

money from the Service to facilitate the partnership—a major success in the protection of the thousands of acres of former Champion

Paper Company lands in northeastern Vermont through a partnership of Federal, State and private timber company efforts. Another

is the multi-year Invasive Species Management Agreement with

the USDA and local universities to facilitate control of invasive

species across State lines. The partnership efforts involved allowed

the government to do more with less and increase its interaction

with the American public. How will you increase agency support for

these kind of activities?

Mr. WILLIAMS. I’ve had considerable experience with pulling together partnerhips in Kansas, and recognize that that really is the

model for the future. The old command and control approach to

conservation just is inappropriate in these times. And Senator Roberts spent one beautiful afternoon in McPherson, Kansas on just

such a partnership, bringing together Federal agencies, our State

agency and many private partners.

I think in response to your question, the best thing I can do is

to provide that as part of a vision for all folks in the Service to

search out those partnerships, to bring together local conservation

organizations, other NGO’s, to work with communities in areas, to

show them the benefits, both economic and environmental benefits,

of investing in our natural resources.

I am somewhat familiar with that area. In fact, just at the end

of this month a year ago, I spent some time hunting woodcock just

south of the area in northeastern Vermont, and I think folks in

that area will, as time goes by and that refuge continues to develop, will really appreciate again not just the environmental benefits of it, but also the economic benefits of the refuge.

Senator JEFFORDS. The Mississquoi National Wildlife Refuge is

moving toward a long overdue replacement of its headquarters

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building. I have worked to support this project for a number of

years and helped to secure the $2 million to $3 million needed to

complete the project. Full funding of this project at the $3 million

level will be critical to the public outreach and educational function

of the Mississquoi Refuge. This is for Senator Roberts, as well, who

knows how important this is.

I see that the U.S. Fish and Wildlife Service, especially through

accessible refuges like the Mississquoi, filling an increasingly important role in providing public information on fish, wildlife, natural resource issues. How will you ensure that this role is fulfilled

in the Mississquoi Refuge, especially through the headquarters

project?

Mr. WILLIAMS. I’m not fully briefed on all the details of that particular project. I can assure you that I think that public outreach,

public education is a critical component of the Service’s mission.

Again, should I be confirmed, I would be happy to meet with you

and your staff and the staff of the Service and see what we can do

to move the project along.

Senator JEFFORDS. Good answer.

[Laughter.]

Mr. WILLIAMS. Thank you.

Senator JEFFORDS. The U.S. Fish and Wildlife Foundation has

supported several important wildlife conservation projects in

Vermont in recent years. They have worked with a broad range of

groups, including Orbis Company and the Ruptagrao Society, and

the Lake Champlain Lands Trust. Their flexible and collaborative

approach is ideally suited to our approach to conservation in

Vermont. How would you support the mission of the Foundation,

especially in Vermont and the Northeast?

Mr. WILLIAMS. I’m familiar with the National Fish and Wildlife

Foundation through their partnership with the Kansas Department

of Wildlife and Parks on about a $5 million wetland restoration

project near Milford—north of Milford Lake. And I should back up

and say again, these partnerships that can leverage State money

or Federal money or private money are really the model for the future. And I would again urge, cajole, set as part of the daily activities of Service employees to look for opportunities to work with a

number of partners, including landowners, to pull together resource

projects that make sense for those areas.

I have fairly good experience in—well, I’ve had a great experience in the Northeast. I shouldn’t say fairly good experience, but

a fair amount of experience having worked in Massachusetts for 7

years with the Division of Fish and Wildlife, and of course born in

Vermont. I know folks in that area and have relationships with

them, and I would do my best to . . .

Senator JEFFORDS. Well, thank you. That’s my final question.

Other members will have an opportunity to submit questions in

writing to all three of you. I will give them 24 hours, so if you don’t

get any by then, that will be too late. But anyway, just to let you

know.

Thank you, Mr. Williams.

Mr. WILLIAMS. Thank you, Mr. Chairman.

Senator JEFFORDS. Mr. Baxter?

Mr. BAXTER. Yes.

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Senator JEFFORDS. Last May, I introduced S. 933, the Combined

Heat and Power Advancement Act, which would encourage the development of distributed generation and combined heat and power

projects by standardizing the interconnection process. Do you think

this legislation should apply to the TVA?

Mr. BAXTER. I think the TVA should be a leader in any of these

new technologies that are being explored in our country. I think

that’s one avenue that TVA perhaps has not taken full advantage

of that it should. There are opportunities there to be a leader in

research in new ways to generate electricity, to conserve electricity

and to co-gen electricity and heat. So I would certainly be in favor

of TVA pursuing those kinds of opportunities.

Senator JEFFORDS. Would you support the TVA electing to voluntarily adopt such a process which would encourage the development of energy-efficient projects and increase the supply of electricity in the region?

Mr. BAXTER. Yes, I would. And I would emphasize, again coming

from the private sector, I would emphasize the economic benefits

to the users of electricity of those conservation efforts. And I think

if that case can be made more clearly, we will have a greater success in encouraging people with these efforts.

Senator JEFFORDS. Would you commit to voluntarily complying

with FERC regulations as they apply to interconnection to transmission systems?

Mr. BAXTER. I shouldn’t make a commitment today because I

don’t fully understand all the complexities of that issue. I do know

that in the TVA title language that has been worked out between

many of the stakeholders with TVA, that FERC jurisdiction over

the transmission system has been an issue that’s been discussed

and favorably considered. So to the extent it fits within that TVA

title negotiated language, I would support it. And if not, I would

be open to entertaining and understanding what all the pros and

cons are of that issue.

Senator JEFFORDS. Do you think that TVA, which is already over

$26 billion in debt, should take on additional debt to finance new

power plants when private industry is willing to accept the financial risk of constructing new plants?

Mr. BAXTER. If you look at the needs of electric power in the Valley in the next few years, it’s very likely that TVA will need to add

base-generating capacity to meet the growth opportunities there in

that seven-State region. There are many possibilities of financing

such an addition to generating capacity, and certainly partnering

with private sector companies should be one of those options that

we look at. It seems to me that long term, again, there is a real

opportunity for TVA there as we restructure the market to find private sector partners for some of these projects, and I believe they

are actively considering that now.

Senator JEFFORDS. Shouldn’t the TVA at least institute some

kind of competitive bidding for new projects to ensure that the taxpayers of the Tennessee Valley region are paying the lowest possible price for their power, and that new generation is constructed

in a cost-effective manner?

Mr. BAXTER. Yes, sir.

Senator JEFFORDS. Good answer.

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[Laughter.]

Mr. BAXTER. Right.

Senator JEFFORDS. Thank you again. There may be questions

from other members.

Ms. Nelson, in light of the events of the past 5 weeks, the sensitivity of sharing information has come under increased scrutiny.

Security concerns have now been added to the debate over the

public’s right to know and confidentiality of companies’ trade secrets. Can you tell the committee how you intend to balance these

needs, especially in light of the increased security concern?

Ms. NELSON. I think I have always been a very, very staunch advocate for public access to information. I like to believe that that’s

one of the reasons I was selected for this job. Back in Pennsylvania, we were very aggressive about making information publicly

available on our web site and through other sources.

However, September 11 did change some things. Our lives are all

different as a result of what happened. When I come into the garage every day, the trunk of my car is inspected, the back seat of

my car is inspected. My girls can’t take a tour of the Capitol as a

visitor. And in fact, EPA has taken some information off of its web

site, as have many other government organizations. They are not

the kind of things we like to see.

Personally, with my own background, it’s my own personal desire

to see as much information publicly available as possible, because

I think that’s how we energize and leverage our citizens to help us

protect the environment, so that they can make the right decisions.

But I think in light of what has happened, we all have to balance

more carefully the decisions that we have to make in terms of public access and security, and the integrity of the information that we

provide, to make sure that we’re providing the right information at

the right time to the right people.

Right now, there are people in the agency that are looking and

doing an inventory of our web site. I hope in the future that we

can apply the best analytical minds to make the sound and reasonable decisions about the kinds of information we supply and how

we supply it. But we do I think have to strike that balance, which

is very different today than it was 2 months ago. And that will be

a difficult job we all have in terms of striking that balance to ensure that we’re protecting all of the people of the country.

Senator JEFFORDS. Thank you. Again, other members will have

an opportunity, but I’ll give them just a short time to submit questions.

I want to move you along just as fast as I can, but there are two

obligatory questions that I have to ask everyone who is seeking

such offices, and a nod of the head will do or a shout or whatever

else you want.

Are you willing at the request of any duly constituted committee

of the Congress to appear in front of it as a witness?

Mr. BAXTER. Yes.

Mr. WILLIAMS. Yes.

Ms. NELSON. Yes.

Senator JEFFORDS. Everyone says yes.

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Do you know of any matters which you may or may not have

thus far disclosed which may place you in any conflict of interest

if you are confirmed in this position?

Mr. BAXTER. No, sir.

Mr. WILLIAMS. No, sir.

Ms. NELSON. No, sir.

Senator JEFFORDS. Good answers.

Thank you very much. That is the end of this morning’s process.

We have another meeting I have to go to in view of the circumstances in the Senate today. So thank you all, and we will

move forward just as soon as we can to make sure that you get

there as fast as possible.

Mr. BAXTER. Thank you, Mr. Chairman.

Mr. WILLIAMS. Thank you, Mr. Chairman.

Ms. NELSON. Thank you.

[Whereupon, at 10:15 a.m., the committee adjourned, to reconvene at the call of the Chair.]

[Additional statements submitted for the record follow:]

STATEMENT BY HON. BILL FRIST, U.S. SENATOR FROM THE STATE OF TENNESSEE

I thank the chairman and members of this committee for holding this hearing in

a timely manner.

The Tennessee Valley Authority has played and will continue to play a critical

role in the future of Tennessee and the entire TVA region. TVA is the nation’s largest public power producer serving over 8.3 million customers thorough its 158 distributors with a revenue of $7 billion annually. In addition, TVA manages the fifth

largest river system in the country.

Over the last 7 years as a Senator from Tennessee, I have come to realize that

TVA is more than a power public company, more than steward of a river system,

it is an integral part of the Valley’s economy and community.

An organization of this size with such an important role must have the very best

leadership and management team in place. The board must be able to lead the organization into a future which presents many challenges including inevitable restructuring of the electric industry, addressing air quality issues, and managing TVA’s

debt.

I am pleased that President Bush has nominated an individual who has the experience and the skills to help lead TVA into this dynamic future. Simply put, Bill

Baxter is the right man for the job.

I have known Bill for most of the last decade and can personally attest to his intelligence, integrity and ability.

In addition, I’ve had the opportunity to spend time at his home in Knoxville. As

a young man, Bill cut the lawn of this home, came to love the property and the expansive view it offered of the Great Smoky Mountains. Even at a young age, he

vowed to himself that someday he would return to this property, not just to cut the

lawn, but as its owner. And today, he shares this wonderful home with his wife,

Ginger, also a native of Knoxville, who is here with him today.

I should add the Baxter’s have four outstanding children, the two oldest, both

girls, are pursuing their college careers at Harvard and Morehead State, while the

two youngest, both boys, are completing their high school years at Central High

School in Knoxville.

A TVA Director must fill three needs for the agency that Bill Baxter fits exceptionally well:

• business acumen

• a commitment to public service

• and leadership skills that will benefit the entire Valley.

I’d like to elaborate briefly on each of these.

Bill is a business man—and a good one—who for over 20 years has shown he

knows how to manage a company and meet a bottom line. He is chairman of

Holston Gases, Inc. a distributor of propane, industrial, medical and laboratory

gases. Holston Gases, Inc. has eight distribution facilities throughout middle and

east Tennessee.

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Bill is a public servant who knows the importance of economic development. He

served as commissioner of the Tennessee Department of Economic and Community

Development for 2 years, returning to his family business early this year. During

his tenure in State government, Tennessee achieved three consecutive years of

record private capital investment and job creation, shattering all previous records

and winning national acclaim.

Bill is also a community leader who knows that a successful community must

have citizens who are willing to give of themselves. That’s why Bill has served as

United Way Chairman, board chairman for the Knoxville Zoo, and in a variety of

other civic and philanthropic roles. He’s also extremely loyal to his college alma

mater, Duke University, where you’ll find him in the stands during basketball season.

Bill’s energy knows no bounds; his ability to assess a situation and make good

business decisions is second to none; and as a life-long Tennessean, he deeply cares

about the Tennessee Valley. For Bill Baxter, the opportunity to serve on the TVA

Board is a life-time dream come true.

Mr. Chairman, Bill’s background in business, government and as a community

leader will be a great addition to TVA’s board, and I know he is looking forward

to joining Chairman Glenn McCullough and Director Skila Harris as quickly as possible. Mr. Baxter comes before you with my full confidence and highest recommendation.

Thank you.

STATEMENT OF WILLIAM W. BAXTER, NOMINATED TO BE MEMBER OF THE BOARD OF

DIRECTORS, TENNESSEE VALLEY AUTHORITY

I’m honored to be here today as President Bush’s nominee as a Director of the

Tennessee Valley Authority. And I am personally very grateful for the support and

encouragement of Senator Bill Frist and Senator Fred Thompson from my home

State of Tennessee. I appreciate very much the committee expediting this hearing,

and I look forward to answering any questions you might have today. If the committee and the full Senate see fit to confirm my nomination, I look forward to joining Glenn McCullough and Skila Harris on the TVA Board and joining them in the

work at hand.

As a lifelong resident of Knoxville, the home of the headquarters of the Tennessee

Valley Authority, my family and my business have been users of TVA power for

nearly five decades, and I appreciate the critical importance of TVA to our area. For

the last 3 years, as Commissioner of Economic Development for the State of Tennessee, I’ve come to understand even more fully the crucial role that TVA plays in

the economic prosperity of the seven-State region it serves. As the nation’s largest

public power producer as well as the steward of the nation’s fifth largest river system, TVA has and will continue to play a pivotal role in the future of the region.

Several challenges lay immediately in TVA’s future:

(1) First and foremost is the job of continuing to provide reliable, low cost electricity to the Tennessee Valley, a region that has been growing at a rate of 3–4 percent annually exceeding the national average considerably. To support this growth,

a primary effort of TVA in the immediate future will be increasing base and peak

generating capacity. We want to make sure that the lights don’t go out in the Tennessee Valley for lack of prudent planning or wise, forward looking investment.

(2) TVA should be a leader in addressing air pollution issues that come with fossil

fuel power plants. TVA’s record investments thus far in pollution abatement measures, along with its recent announcements of significant new investments over the

next few years, will continue. Today we know that the users of electricity want both

reliable, affordable power and responsible environmental conduct of business. TVA,

and all other power producers, must strive to achieve both. I grew up in the Smoky

Mountains and I still hike there on a regular basis with my family and friends, and

I am as interested as anyone in the long-term health of these mountains and the

preservation of their beauty.

(3) The restructuring of the electric production and transmission industry in our

country will continue with lessons learned from California and elsewhere. TVA must

continue its earnest efforts to prepare for this restructuring. Significant progress

has been made on the complex issues of how TVA will fit in the larger scheme of

this restructured market. Excellent work has already been done by Senators Frist

and Thompson from my home State, Senator Cochran of Mississippi, Congressman

Ed Bryant from Tennessee, and many others. I’m happy to have developed a working relationship with many of TVA’s distributor customers during my 3 years in economic development in the State of Tennessee, and I believe listening to these cusVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00390 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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tomers is good business, especially on the issue of deregulation. Likewise, constructive dialog with investor owned utilities can be very beneficial to understanding the

proper posture of TVA after restructuring, and I look forward to productive conversations with the executives of these companies as we move forward thoughtfully

into the restructured electric market place.

(4) The prudent management and stewardship of the Tennessee River system is

one of the fundamental missions of TVA; in fact, it was the original mission of TVA.

From my perspective, TVA has done a superlative job in this area, and improvements continue to be made every year. Successfully performing this core responsibility will continue to be a high priority at TVA, and listening to our customers, all

the various users of the Tennessee River system, will the key to making those continuous improvements. I grew up on Norris Lake, the lake created by the first TVA

built dam, and my family’s business has been located on the Tennessee River for

four decades. I know first hand the importance of TVA’s river system stewardship.

(5) TVA is a $7 billion business, and it must be run with the best business practices. I look forward to bringing my 20 years of private sector business experience

to the TVA organization and doing everything I can to ensure that best business

practices are employed and the best possible financial results are produced. As you

know, TVA has a very large debt, but the good news is this debt is being paid down

in a steady, responsible manner. In fact, today TVA’s interest expense as a percent

of revenues is at its lowest level in 20 years. Real progress is being made on this

critical issue. The stimulating business challenge at TVA is to continue to reduce

this debt in a disciplined fashion, while at the same time investing prudently in additional generating capacity, meeting our environmental responsibilities, promoting

economic development in the valley, and managing the Tennessee River system in

a professional manner, all the while maintaining rates as low and steady and predictable as possible for both home and business use. This is a business challenge

of the highest order, and I look forward to being fully involved in ensuring TVA’s

performance in all these areas.

Once again, I want to thank the chairman and the members of the committee for

expediting this process, as I know you and the other members of the Senate have

critically important issues to deal with today. As an American citizen and as a father of four, I want to express my appreciation to each of you for all that you are

doing to make our country strong and to secure our liberties for the next generation.

Thank you very much.

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RESPONSES OF WILLIAM W. BAXTER TO ADDITIONAL QUESTIONS FROM SENATOR

JEFFORDS

Question 1. About 3 years ago, the Environmental Protection Agency issued administrative actions against several TVA power plants for violating the New Source

Review requirements of the Clean Air Act. Apparently, TVA made significant modifications to these plants without getting the necessary air quality permits. Now,

TVA is fighting these actions in court. Shouldn’t TVA, a quasi-Federal agency, be

a leader in complying with the law and adopting state-of-the-art pollution prevention and control technology, rather than wasting its resources fighting another Federal agency?

Response. It is my understanding that there is a legal disagreement between TVA

and EPA concerning the types of repairs and maintenance work done to the TVA

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plants which should or should not require air quality permits, and I’m sure reason- able people can disagree about a certain technical legal matters. However, I think

it is important to note that through this very process of repair and maintenance,

TVA has continuously made their fossil plants more efficient and cleaner burning.

Additionally, TVA has invested over $1 billion in improved pollution control equipment over the years and just recently announced several hundred million additional

dollars of investment for the same purpose.

I agree with you, Senator Jeffords, that TVA should be a leader in pollution control efforts, and it would be my intention, if confirmed by the Senate, to advocate

this position on the board. The challenge at TVA, as well as with any power producer, is to properly balance the need for the production of ample and affordable

electricity for the families and businesses in our service area while at the same time

investing aggressively in pollution control technology.

I believe TVA should work cooperatively with the EPA on these matters. I agree

with you that lawsuits between Federal agencies are a waste of resources, and every

effort should be made between Federal entities to compromise and negotiate mutually beneficial agreements so that progress is made for those citizens affected.

Question 2. What will you do to ensure that TVA aggressively reduces air pollution and aims to achieve at least 1990 levels of carbon dioxide emissions?

Response. The first order of business at TVA is to ensure that it is being operated

as a very efficient business so that financial resources are available to continue its

investments in state-of-the-art air pollution control technology. Without such financial health, TVA will not have the resources necessary to invest in these very expensive but very worthwhile improvements in air pollution control. As to the setting

of targets for levels of reduction of specific pollutants, I again would advocate TVA

working cooperatively and regularly with the EPA to establish mutually agreed

upon goals and monitor satisfactory progress in this very important area.

Question 3. What portion of TVA’s generation base should come from renewable

energy sources?

Response. Currently, if hydropower is included, TVA produces approximately 12

percent of its power from renewable sources, which also include solar, wind and biomass. This is an area in which I have particular interest, and it is my intention

to become personally involved in TVA’s efforts in increasing the generation base

that comes from renewable energy sources. TVA has a very good record of continuously improving the generating capacity from its hydroelectric dams, and as technology becomes available to further increase this productivity, I would advocate implementing that technology in the TVA system. Further, TVA has now established

the largest wind farm in the southeastern United States, and I look forward to

learning more about the potential for growing this generation base into a feasible

part of our future. TVA is also involved in demonstration projects in solar and biomass, and I will be personally involved in investigating the feasible technologies

that are available today that could be put to use in the TVA system as soon as possible. Finally, I support TVA’s Green Power Switch program, which allows families

and companies to voluntarily accept a small surcharge on their monthly bill in order

to purchase blocks of electricity generated from renewable sources. In fact, my business and my home have purchased such blocks of green energy.

RESPONSES OF WILLIAM W. BAXTER TO ADDITIONAL QUESTIONS FROM SENATOR

BUNNING

Question 1. TVA announced plans in 1997 to cut its debt in half by 2007 and increased rates for its distributors specifically in order to reduce its debt. TVA has

now acknowledged that it will not meet its debt reduction targets and is only on

track to make a small dent in its overall debt. As part of the TVA board, do you

plan to meet the original plan of cutting TVA’s budget in half by 2007? If not, can

you provide a justification for Kentucky’s TVA customers paying higher rates to help

TVA drastically decrease its debt when it appears that TVA has no plans to do so?

Response. It is my understanding that in 1997 TVA increased its rates for the

first time in 10 years in order to more aggressively reduce its large debt. The original announced goal was to cut TVA’s debt in half in 10 years. Since that announcement, significant additional capital investments have been required for pollution

control equipment as well as added generating capacity to ensure ample power

availability in our growing region. TVA’s debt will be significantly reduced by the

year 2007, but it will not be half of its 1997 level.

There is no question that TVA’s large debt load is a major financial challenge for

the agency, and if confirmed by the Senate, it would be my intention as a businessman to focus intently on maximizing the schedule of debt reduction for TVA. This

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is critically important to the financial health of the agency which will enable it to

continue investments in air pollution efforts and adding generating capacity where

required for the continued economic growth of the region.

The business challenge facing TVA is to properly balance the multiple goals and

responsibilities of the agency at the same time: power generating capacity, responsible pollution control, and aggressive debt reduction, all the while keeping rates as

low as possible for TVA’s customers. I would advocate TVA adopting a realistic but

aggressive debt reduction schedule and communicating regularly with the Congress

about TVA’s progress in meeting these goals.

Question 2. TVA’s Fiscal Year 2001 earnings are a record $6.9 billion and its projected earnings in Fiscal Year 2002 are to be over $7 billion. TVA charges higher

electricity rates to its Kentucky customers compared to rates charged by other Kentucky utility companies. The recent downturn in the economy in Kentucky has made

increased energy costs even more painful. Would you, as a member of the TVA

Board, reduce Kentucky TVA customers’ rates so that they compare to other Kentucky energy customer’s rates given the record revenues that TVA has earned?

Response. TVA’s gross revenues have increased as the economy of the TVA region

has grown. Fortunately, our region has grown at a faster rate than the Nation over

the last 10 years, and the attendant demand for electricity has grown along with

it. TVA’s rates should be based on its costs and a prudent return to provide for continued investment in the necessary infrastructure to produce and transmit power

throughout the region.

The potential for deregulation and restructuring of the power production industry

presents the possibility of the favorable impacts of competition. Through this process

of deregulation and restructuring of the industry, a fair and equitable way for TVA’s

customers to have the option to purchase power from sources other than TVA should

be one of the important results. Coming from the private sector, I believe that competition makes us all better, competition will make TVA better, and competition will

give the customer the choices it deserves.

Question 3. TVA has admitted that it has a continued desire to build new generation facilities. Many of the new generation facilities may not even be needed and

would likely increase TVA’s huge debt threatening its financial viability and health.

A significant portion of TVA’s debt is linked to construction of power plants that

currently are not running. Would you support allowing distributors to build new

generation for their increased needs which would allow TVA to focus its financial

resources on rate relief for its current customers and long term debt reduction?

Response. Based on the limited information I have available to me at this time,

I certainly do not oppose the option of allowing distributors to build new generation

if they so choose. This would be a business decision on their part requiring a large

capital investment and a confidence in an ultimate return on that investment. Of

course, TVA should not build new generating facilities that are not needed, but

through close communication and collaboration with its customers, TVA has an obligation to make prudent investments in generating capacity that will be clearly needed as our region continues to grow economically.

[Omission] an annual and ongoing basis as part of good long-term planning. The

key to success in making these important business decisions is accurate knowledge

of your customers’ needs. Additionally, TVA should study closely the private sector’s

research on future growth in demand for electric power. These investment decisions

must be made in the context of the entire industry and not in isolation.

As a government entity, TVA is not subject to the Federal Energy Regulatory

Commission (FERC) jurisdiction over its power sales like private utility companies.

Therefore, its rates, charges, terms and conditions are not subject to FERC regulatory requirements. TVA’s competitor electricity companies, which are subject to

FERC, are at a disadvantage in trying to compete with TVA. Would you support

putting TVA on a level playing field with private utility companies and placing TVA

under FERC regulation?

It is my understanding that consensus language has been developed in the ‘‘TVA

Title’’ which has been drafted after many months of negotiations with TVA customers and many other interested parties. This language is sponsored by Senators

Frist and Thompson from Tennessee and Senator Cochran from Mississippi, and I

believe Congressman Bryant from Tennessee has been instrumental in this effort

as well. It is my understanding that there are important steps taken toward FERC

jurisdiction over some aspects of TVA’s operations although control of TVA rates is

not one of them. Developing this consensus language among all the affected parties

was a very difficult task and I would have strong confidence in that consensus language as we take our first steps into the deregulated environment.

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I recognize that this is a very complex area, and I have much to learn about it,

if confirmed by the Senate. If I am confirmed to the TVA board, I will dedicate myself to studying thoroughly this very important area, and I can assure you that my

20 years of private business experience will inform my values and my views on the

results which deregulation and restructuring should achieve for the customer. I

would intend to have regular, open and constructive dialog with the executives of

privately owned utilities throughout the region to ensure a complete mutual understanding of where we need to come out at the end restructuring and the steps that

need to be taken along the way. If TVA listens intently to its customers and learns

from other power producers throughout the region, we will get the right result.

RESPONSES OF WILLIAM W. BAXTER TO ADDITIONAL QUESTIONS FROM SENATOR

WYDEN

Question 1. Are you aware that the Federal Energy Regulatory Commission

(FERC) has taken steps, in part through issuance of Order No. 2000, to encourage

participation of transmission owning utilities, including non-FERC jurisdictional

ones like TVA, to participate in regional transmission organizations (RTOs)?

Response. Yes. I have received a preliminary briefing from TVA on this subject

and have done some general research in the financial press.

Question 2. Do you believe it would be good policy for TVA to participate in an

RTO in the southeast formed according to FERC’s RTO standards?

Response. My honest answer is I do not have enough information at this time to

state an opinion on TVA’s participation in an RTO in the southeastern United

States. However, I do believe that as the deregulation and restructuring of the

power production industry takes place, the transmission system will be equally as

important as our regional and national generating capacity. Currently, our transmission system throughout the United States is not designed to ‘‘seamlessly’’ transmit power from region to region. There are technical challenges which will need to

be met, and major capital investments to improve the transmission system will be

necessary.

It is my view that TVA should participate in some form in the regional transmission of power in the southeast, whether this be an RTO or some other mutually

agreed upon structure. It is my understanding that extensive discussions are already underway among the power producers as well as distributor customers in the

southeast. The guiding principle for TVA as well as FERC should be what is best

for the customer: the most efficient transmission system possible that will lend itself

to the most affordable electric power rates possible.

One final general comment: it is my view that TVA’s communications with other

Federal agencies should improve dramatically. This would include FERC, the Department of Energy, EPA, and others. I have found in business that stronger efforts

at communication usually show the way to better relations and to solutions that

work for everyone.

STATEMENT OF KIMBERLY TERESE NELSON, NOMINATED TO BE ASSISTANT ADMINISTRATOR FOR ENVIRONMENTAL INFORMATION, ENVIRONMENTAL PROTECTION AGENCY

Good morning, Mr. Chairman and members of the committee. It is a privilege and

a pleasure to appear before you as the nominee to be the Assistant Administrator

for Environmental Information and Chief Information Officer for the United States

Environmental Protection Agency (EPA). I am honored that President Bush has

nominated me to serve with Administrator Whitman in this Administration. I am

pleased to be joined today by my husband, Kevin Cadden, two daughters, Kelsey

and Mackenzie, my father, George Nelson, and my aunt, Florence Bodziak.

As the former first Chief Information Officer for the Commonwealth of Pennsylvania’s Department of Environmental Protection (DEP), I understand firsthand the

critical role that environmental information plays in sound environmental decisionmaking. I also understand how rapid, sweeping, and profound information technology advancements are creating expectations for government to keep pace with

the private sector.

The need for strong public administrators has never been more evident than during the past month, when our country experienced such devastating loss. The events

since September 11 have crystallized the nation’s understanding of its reliance on

technology for basic operations, human communications, and comprehension of the

disaster experienced. This reliance now causes all public administrators, and particularly those in the technology and information arena, to reexamine and strengthVerDate 11-MAY-2000 11:18 Dec 30, 2002 Jkt 000000 PO 00000 Frm 00400 Fmt 6601 Sfmt 6621 78075 SENENV1 PsN: SENENV1
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en our programs, our security systems, and the quality of our information. I am

both honored and challenged to contribute to our nation’s preparedness in these

areas.

I believe it is the obligation of all government officials to create and manage organizations that allow our citizens to access information and services with minimal

bureaucratic barriers. The information that we provide must be of exceptional quality and supported with analytical tools which facilitate its use for assessing and

managing risk, and for measuring our environmental improvements. The services

that we provide must be fast and error free. Most important, these services must

be convenient for the public, even if that means crossing traditional organizational

lines.

Today, EPA and the States are working hard to provide consistently high quality

environmental information. EPA’s strong commitment to public access must always

be balanced by the need to protect privacy and maintain the integrity and security

of our information policies. The events of September 11 also underline that our commitment to public access carries the responsibility to review carefully our publicly

available products to ensure that, while benefiting the public, they do not contribute

to compromising sensitive or vulnerable resources or facilities.

We know that the environmental challenges of the 21st century cannot be solved

by EPA alone—they will require us to partner and cooperate with many others. We

must join with States, Tribes, local governments, businesses, and communities to

design and disseminate user-focused information products that provide a clear understanding of environmental conditions and solutions.

If confirmed, I intend to promote the President’s principles for government reform

to make EPA more citizen-centered, results-oriented, and market-based. I will assist

Administrator Whitman in this effort by helping to sharpen the focus of EPA’s environmental information strategies, reduce burden on industries, promote intergovernmental cooperation, and apply best practices to achieve internal efficiencies.

I am fortunate that EPA has many important building blocks in place. I hope to

use these solid efforts as a springboard to accomplish lasting change. And, by continuing to build partnerships between the Federal Government and those concerned

with environmental protection, I believe we can achieve a goal that we all share B

to leave the air cleaner, the water purer, and the land better protected than we

found it.

I will work to lead the Agency to make technology investments that will provide

long-term value for the Agency, investments that will be good for all EPA programs.

However, I recognize that the application of technology is the easy part. Far more

important is achieving transformation using technology as the enabler for meeting

the needs of citizens and employees alike, and using information as a strategic resource for environmental decisions at all levels.

It is my vision that one day EPA staff, the Agency’s partners, and the general

public will be able to:

• easily access all relevant non-sensitive environmental information about regulated entities regardless of program or regulating agency;

• easily access all relevant non-sensitive environmental information about a

physical location, even when that information is gathered by different government

agencies;

• improve interaction with, and understanding of, the regulated community including changing the way information is reported;

• more effectively measure environmental conditions; and

• enhance understanding of the interrelationship between EPA activities, compliance behavior, pollution prevention, and environmental improvements.

Of course, achieving this vision will require extensive collaboration with my fellow

Assistant Administrators, Federal agencies and departments, State and tribal partners, the regulated community, and others.

I believe these activities will contribute significantly toward burden reduction, improved data quality and security, more informed environmental decisionmaking, and

greater flexibility for States to manage environmental programs. And we can do this

while continuing to meet the public’s demands for better environmental information

in a more secure environment.

I am a strong believer in the commitment it takes to work in government service.

My family has a long history of government service. My father retired from the

Navy Department with 40 years of service. Earlier this year, my younger brother

retired from the Air Force with 20 years of service, and my two older brothers

served during the Vietnam conflict. After 28 years in State government, my husband is now Director of External Affairs at the Federal Energy Regulatory Commission.

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I, too, have served in government—22 years with the Commonwealth of Pennsylvania. More than half of my career has been spent in a State environmental protection department. During that time I helped develop and implement a blueprint for

integrating DEP’s program-specific computer systems. I managed several Process

Improvement Teams that significantly changed the department’s permitting and

compliance processes and made information about these activities available to the

public in an award-winning system. Finally, I created the first Office of Information

Technology, the first executive level CIO in the department.

I am now both ready and enthusiastic to join public service at the Federal level

as the Assistant Administrator for Environmental Information and the Chief Information Officer for the U.S. Environmental Protection Agency. I am confident that

I can bring the necessary vision, leadership, and experience to work with our partners to achieve those things I have addressed today.

Should I be confirmed by the Senate, I look forward to working with this committee, Members of Congress, Administrator Whitman, and the entire Administration to make the environment better for all Americans and to be responsive to the

citizens we serve.

Thank you for the opportunity to appear before you today. I would be happy to

answer any questions you may have.

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RESPONSES OF KIMBERLY TERESE NELSON TO ADDITIONAL QUESTIONS FROM SENATOR

SMITH

Ms. Nelson, I have submitted some questions regarding the way the OEI administers the Toxic Release Inventory (TRI) program. I would appreciate if you would

give this issue your personal attention because the way the program is currently

being run it has created confusion among the entities responsible for reporting

chemical releases and the public at large who are greatly mislead by the way the

information is being reported.

The Toxic Release Inventory (TRI) data base and public information program has

been in place for some time. Recent addition of the waste services industry to the

TRI system appears to invite confusion about the entities responsible for reported

chemical releases to the environment and where such releases actually occur.

For example, a company shipping waste containing TRI chemicals to an offsite

RCRA Subtitle C TSD facility must report this ‘‘transfer’’ to a permitted facility as an ‘‘offsite release.’’ This transferred amount is then added to the generator’s actual

releases to air, land, and water to determine the company’s ‘‘total releases.’’ In reality, however, the transferred chemicals were managed at a permitted RCRA facility distant from the community (or even State) which must itself report the TRI

chemicals as a release to the environment where they are located. EPA later corrects for this double counting in determining overall totals. This raises a number

of important questions:

Question 1. Is this an accurate summary of the current TRI reporting requirement

for such waste transfers?

Response. Because EPCRA requires facilities to report on all releases (the EPCRA

definition of release includes disposal), including those that are sent to-offsite RCRA

subtitle C facilities for disposal, the reporting requirement does not involve double

counting. Only when, When EPA aggregates the TRI data to determine total releases, however, does the issue of double counting becomes relevant.

Question 2. Is this approach required by statute or regulation? If so, please provide specific citations. If a matter of agency policy, please confirm.

Response. EPCRA Section 313 (g)(1)(C)(iv) requires reporting on the annual quantity of the toxic chemical entering each environmental medium. P. 298 of the conference report states ‘‘reporting on releases to each environmental medium under

subsection (g)(1)(C)(iv) of the conference substitute shall include, at a minimum, releases to the air, water (surface water and groundwater), and land (surface and subsurface), and waste treatment and storage facilities.’’ (U.S. Congress, House of Representatives. ‘‘Conference Report No. 962,’’ 99th Cong. 2d Session (1986),. EPA believes that the The ‘‘quantity of the toxic chemical entering each environmental medium’’ includes all releases. and EPCRA section 329(8) defines release to include disposal.

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Question 3. Why is a company which transfers TRI chemicals contained in waste

shipped to a permitted RCRA Subtitle C facility for final disposition (which may include disposal or recycling) required to report this transfer as a release to the environment?

Response. As discussed previously, EPA believes that the statute requires the reporting of disposal as a release. Off-site transfers to another facility for recycling

are not reported as releases to the environment, but rather as offsite transfers for

recycling.

Question 4. Isn’t the current reporting requirement likely to confuse and misinform the local community and other members of the public about releases to the

environment in the geographic area where the transfer originated?

Response. The reporting requirement should not confuse or misinform the public

since the data regarding the specific types of releases is made readily available. In

the data EPA makes available to the public, the Agency clearly distinguishes between onsite and offsite releases.

Question 5. Wouldn’t it be more informative to the public to require the company

transferring TRI chemicals in the manner described above to report them as a

‘‘transfer’’ to a permitted offsite management facility (e.g.; a RCRA treatment, storage and disposal facility) rather than as releases to the environment?

Response. Facilities do report such transfers as transfers to offsite management

facilities. Section 6 of the TRI Form R is titled ‘‘Transfers of the Toxic Chemical in

Wastes to Off-Site Locations.’’ On the form, among other things, the facility designates the type of waste management activity (treatment, disposal, recycling, or energy recovery) being performed at the offsite location.

Question 6. Wouldn’t the alternative approach suggested under Question 5. above

improve TRI program administration efficiency by eliminating the need to later correct for double counting by the company and the offsite facility?

Response. Not all offsite facilities receiving waste will meet the TRI reporting criteria and need to file reporting forms, therefore, if EPA did not require transferring

facilities to report transfers for disposal as releases these releases could go unreported.

Question 7. As Assistant Administrator, will you support an improved approach

that improves program efficiency and provides more accurate and informative public

reporting?

Response. The Toxics Release Inventory has been, and continues to be a valuable

resource for communities, citizen groups, academics, investment companies, and industry. The program has been very successful to date. I will continue to look for

opportunities to streamline reporting and otherwise improve the usefulness of the

information.

Question 8. EPA has described the Cross-Media Electronic Reporting and Recordkeeping Rule (CROMERRR) as voluntary, and thus having little cost impact on regulated facilities. Yet I am hearing that industry regards the electronic recordkeeping

provisions as essentially mandatory, in that they would apply to almost any use of

computers to meet EPA recordkeeping requirements. Accordingly, the costs involved

would seem to be huge on the order of Y2K. Would you be willing to consider withdrawing the electronic recordkeeping provisions from the rest of CROMERRR for

further analysis and discussion with interested parties?

Response. EPA’s current regulations do not require electronic recordkeeping.

CROMERRR would not require companies to switch from paper recordkeeping to

electronic recordkeeping; accordingly, electronic recordkeeping would be voluntary

under CROMERRR. In response to EPA’s proposal of CROMERRR, some members

of the regulated community have asserted that, for them, compliance with the recordkeeping criteria in CROMERRR would not, as a practical matter, be entirely

‘‘voluntary’’ because they already maintain electronic records.

In light of the comments provided in response to the proposal, EPA has decided

to conduct further analysis of the impact of the recordkeeping provisions of

CROMERRR. This analysis will, as a matter of practical necessity, entail further

discussions with interested parties. Of course, until the comment period closes on

November 29 and EPA has had an opportunity to evaluate all comments and to conduct such additional analysis as may be required, it would be premature to commit

to any particular procedural course of action or substantive revision of the rule. By

the same token, it would also be premature to rule out procedural steps, like withdrawing the recordkeeping provisions of the rule, or substantive changes to the recordkeeping criteria themselves. In considering comments received on the proposed

rule, EPA will consider all options and alternatives, including limiting the scope of

the recordkeeping provisions, adjusting the provisions themselves, identifying classes of cases that can be treated less stringently, and providing for the

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‘‘grandfathering’’ of existing company systems. EPA hopes to go forward with the

recordkeeping component of CROMERRR, but will do so only if the agency can find

an approach that does not impose unwarranted costs on the regulated community.

Question 9. I understand that today many companies use computers to help meet

EPA recordkeeping requirements. Are you aware of any significant problems that

EPA or State enforcement officials have actually encountered with accessing or

verifying these electronic records? I would appreciate it if you would look into this

matter and report back to the committee.

Response. State and Federal enforcement communities have expressed concern

about their ability to use electronic records as evidence for compliance and enforcement purposes. There is little case law available in this area, and EPA has been

cautious in dealing with this issue. I understand that the EPA Office of Environmental Information recently asked the EPA Office of Enforcement and Compliance

Assistance to provide additional information on problems encountered when using

electronic records. When that information is available, if confirmed, I will be happy

to provide it to the committee.

RESPONSES OF KIMBERLY TERESE NELSON TO ADDITIONAL QUESTIONS FROM SENATOR

BOND

There is concern in the scientific community over the appropriateness of applying

EPA’s persistent, bioaccumulative, and toxicity (PBT) methodology to metals. Scientific experts, including EPA scientists, discussed the problems of applying the

PBT methodology to metals at an EPA co-sponsored ‘‘Experts Workshop’’ in January

2000. In May 2000, the EPA Science Advisory Board used an Advisory Opinion on

risks surrounding smelters to take the opportunity to state that EPA’s proposals to

classify metals as PBTs were problematic because the methodology did not accurately describe metals’ characteristics in the environment.

In July 2000, the House Science Committee, in a bipartisan letter signed by the

Majority and Ranking members of the full committee and relevant subcommittee,

noted the scientific controversy. The committee strongly urged EPA to seek independent peer review and refer the question of the scientific appropriateness of applying the PBT criteria to metals to the SAB before deciding whether to include

metals in any of the Agency’s PBT programs or lists.

In the fiscal year 2001 VA/HUD Conference Report, I proposed, and the conferees

and Congress accepted, language urging EPA to submit the question of PBT and

metals to independent peer review. Specifically, we urged EPA to seek independent

peer review and refer to the SAB the question of the scientific appropriateness of

applying the PBT criteria and methodology to metals before any application of the

PBT criteria and methodology to metals.

EPA subsequently disregarded these congressional directives by finalizing increased reporting regulations based upon application of the PBT methodology to

metals without ensuring the scientific validity of the action by submitting the issue

to independent peer review. In its January 2001 Federal Register notice, EPA committed to seeking external peer review of the scientific appropriateness of applying

the Agency’s PBT criteria to metals generally and to the specific issue of whether

lead and lead compounds should be considered bioaccumulative or highly bioaccumulative. EPA stated it would send this issue for review to its SAB in June

2001.

However, in its September response to questions this committee sent to EPA in

June of this year, EPA appears to have changed its position. Instead of addressing

this related set of scientific questions as a single, cohesive matter, the Agency now

seems intent on dividing the promised inquiry into two separate reviews, the narrower part of which will be sent to the SAB this fall, with the broader inquiry on

PBT-metals generally to be deferred to some unspecified later time, even though the

answer to the broader question may obviate or inform consideration of the narrower

question. There are also indications the Agency now plans to downgrade the metalsPBT issue to a ‘‘consultation’’ rather than a full review.

Questions. If confirmed, will you support any EPA actions which disregard my VA/

HUD language or Congress’ bipartisan direction to submit the question of the appropriateness of applying the PBT methodology to metals for independent peer review

by the SAB?

The Agency is still trying to decide whether to submit the issues to the SAB as

a single package addressing both the broader PBT-metals question and the narrower bioaccumulative/highly bioaccumulative issue. The Office of Environmental

Information is playing a key, some would say domineering, role in this process. If

confirmed, will you take steps to ensure that the full set of issues in the broader

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review—consistent with my VA/HUD language and Congress’ bipartisan direction—

is referred to the SAB together with the narrower issue relating to bioaccumulation?

Why is the Agency considering asking the SAB to undertake two separate reviews

instead of a single, comprehensive review? Are the Agency’s deliberations on this

issue based on policy or scientific considerations? If they are based on policy considerations, specifically what are they? If they are based on scientific considerations,

specifically what are they?

Has the Agency consulted with the SAB about whether it makes sense to bifurcate the review with the narrow, subsidiary question being considered before the

broader, more fundamental question? If not, why not? If so, what position has the

SAB taken on bifurcating the review?

If confirmed, would you take steps to ensure that the referral of this issue to the

SAB is expedited?

If confirmed, would you support any lesser action by EPA, such as an SAB consultation, which would fail to meet EPA’s Independent Peer Review Guidelines?

If confirmed, what steps will you take to ensure free and open scientific debate

and discussion (1) among EPA’s various program Offices with an interest in this

subject (including the Office of Environmental Information), and (2) between EPA

and outside groups with expertise and interest in this matter?

Response. EPA is currently considering how to submit the PBT issues both the

broader PBT metals question and the narrower bioaccumulation question to the

Science Advisory Board, and has not yet made a final decision. Regarding peer review in general, I recognize the importance of conducting independent peer review

of key science policy issues. I plan to assure that this type of peer review be undertaken on policy issues my office addresses.

STATEMENT OF STEVEN A. WILLIAMS, NOMINATED TO BE DIRECTOR, U.S. FISH AND

WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR

Mr. Chairman and members of the committee, it is a great honor for me to be

nominated by President Bush as the Director of the Fish and Wildlife Service. I appreciate the confidence expressed by Secretary Gale Norton in my qualifications and

ability to lead the agency. It is also an honor to be present here today and to have

this committee consider my qualifications to lead our nation’s fish and wildlife conservation agency. Should I be confirmed by the Senate, I assure you that I will eagerly assume the awesome responsibility of preserving and promoting our nation’s

fish and wildlife conservation heritage.

I sit before you today as the nominee and as the Secretary of the Kansas Department of Wildlife and Parks. I have served as director of this agency for the last six

and a half years. My colleagues in the other 49 States have praised President

Bush’s decision to nominate a State director to this important Federal position. As

a State fish and wildlife agency director, I believe that I bring certain qualifications,

experience, and perspective to this position that will benefit constituents in each of

your States.

During the 44 years of my life, I have had opportunities to travel and live

throughout much of the United States. I was born in Bellows Falls, Vermont while

my family farmed in Westminster for markets in Boston and small towns in southern Vermont. While growing up in rural areas of the northeast, I enjoyed fishing,

hiking, and exploring fields and forests. I developed a deep appreciation for conservation as practiced by my friends and neighbors.

I received a B.S. in Environmental Resource Management from The Pennsylvania

State University, an M.S. in Biology from the University of North Dakota, and a

Ph.D. in Forest Resources also from Penn State. While going to college, I worked

seven summers in Jackson Hole, Wyoming within Grand Teton National Park. During this time, college provided knowledge and honed my analytical skills but summers fed my passion for working with the nation’s people and their natural resources.

I have spent the past 16 years working in State fish and wildlife agencies in three

States. I started as a wildlife biologist and have been promoted to administrative

positions of ever-increasing responsibility. I have managed State programs from a

centralized location relying on widely distributed geographic offices and personnel.

I believe that communicating and cooperating with individuals and organizations

is the only effective means to accomplishing positive fish and wildlife management.

This approach includes the consideration of all interested parties, partners, and

technical expertise. I believe that common sense approaches to difficult resource

issues are in the best interest of all involved.

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Under my leadership, the Kansas Department of Wildlife and Parks has initiated

new partnerships with State agencies, agricultural organizations, conservation organizations, and private individuals. One of these partnerships has opened more than

830,000 acres of private land for public hunting. This program is a voluntary, incentive-based program that has increased recreational opportunity, improved local

economies, and provided private landowners with income, all financed with revenue

from Kansas hunters. In just 6 years, this program has grown from 10,000 acres

to more than 830,000 acres. This and many other examples of private-public partnerships are being practiced by State and Federal agencies across the country. I

hope to expand on such opportunities if I am confirmed in this position.

The U.S. Fish and Wildlife Service is facing challenging times ahead. Lawsuits

concerning the listing of threatened and endangered species and critical habitat designation has consumed much of the time and financial resources of the agency. Fish

hatcheries and refuges require considerable attention and investment to maintain

existing infrastructure. Law enforcement officers are stretched thin as they attempt

to deal with illegal trade and importation of wildlife. Ecological Services’ offices face

mounting project reviews and additional demands on their time. The research component of the Service has been diminished and managers are forced to make decisions, sometimes without desired information. Relationships between the Service

and States, sportsmen and women, the fishing and hunting industry, and private

citizens are strained.

To face these challenges, the Service is staffed by dedicated and talented people

with a deep commitment to fish and wildlife conservation. They endeavor each day

to meet the demands and issues confronting them in the best interest of the resources and the nation. The nation is better off because of the work of Service employees.

If confirmed as Director, I will work tirelessly to improve relationships, forge new

partnerships, and solve issues confronting the agency. I have experienced success

by working cooperatively with disparate interest groups, by challenging existing assumptions, by communicating a vision, and by encouraging novel approaches to

solve problems.

The mission of the U.S. Fish and Wildlife Service has expanded dramatically over

the past few decades. However, two things remain constant, sportsmen and women

of the country have been the primary financiers of fish and wildlife conservation.

I would like to take steps to shore up what was once a powerful relationship between the Service and our nation’s hunters and anglers. Second, private landowners

provide habitat for the majority of fish and wildlife resources. I respect these landowner’s rights and will work cooperatively with them in their interest and in the

interest of wildlife. I will strive to strike a balance between the important issues

of endangered species protection and the issues associated with preserving and promoting fishing and hunting in this country.

As America becomes more urbanized and our citizens become generations removed from the land, it is important to maintain a collective connection to the natural world. Hunters, anglers, trappers, and wildlife observers maintain that connection. The Service should partner with State agencies, private organizations, and individuals to promote wildlife-associated activities for our citizens.

The list of issues confronting the new Director of the Fish and Wildlife Service

is considerable; however, with the support of this Administration, Congress, States,

organizations, and individuals, the Service will rise to the challenge and improve

our nation’s fish and wildlife resources. Americans care deeply about fish and wildlife resources. If confirmed as Director, I will approach the responsibilities of that

position with a passion to deliver programs, opportunities, and a vision for the Service that includes protection and conservation of our resources for the American

public’s use and enjoyment.

I pledge to work cooperatively, collaboratively, and through communication with

all members of the U.S. Congress to assure that we meet the needs and desires of

the American public and its fish and wildlife resources. We have an impressive conservation heritage in this country. We must continue the progress made by previous

generations to assure that future generations share in the wonderful blessings that

we all enjoy.

Thank you Mr. Chairman and members of the committee for considering my

qualifications for this position.

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RESPONSES OF STEVEN A. WILLIAMS TO ADDITIONAL QUESTIONS FROM SENATOR

SMITH

Question 1. Mr. Williams, in June, I introduced S. 990, the American Wildlife Enhancement Act, which encourages conservation efforts by promoting local control

and State partnerships through flexible, incentive driven conservation programs and

increased partnerships with local land owners. Two of the titles would provide

money to the States to protect wildlife and areas that they determine to be in need

of protection. What is your position on programs such as this? As Director of the

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Fish and Wildlife Service, would you support programs that give the States the

Flexibility to fund the conservation priorities they have identified?

Response. While I have not yet had an opportunity to become familiar with the

provisions of your bill S. 990, I am a strong supporter of the approaches you describe, particularly ensuring that States can exercise flexibility to pursue their conservation priorities. If confirmed, I will look forward to working with you on these

issues.

Question 2. The other title of S. 990 would provide money to small, private landowners who would like to enter into species recovery agreements to protect endangered and threatened species on their land. Given that the majority of listed species

occur on private lands, I feel that we must always be aware of the rights of private

property owners and work with them in a collaborative process to protect listed species. If confirmed, how will you attempt to balance the rights of property owners

and the protection of endangered and threatened species?

Response. It is my understanding that the Administration requested and received

funding in the Interior Appropriation bill for a new program to provide incentives

to landowners for protection of endangered species on their lands. I strongly support

this approach to conservation.

It is also my understanding that the Administration is committed to administering the Endangered Species Act so that takings of private property do not occur.

If confirmed, I will do all that I can to ensure that the program continues to operate

in this fashion.

RESPONSES OF STEVEN A. WILLIAMS TO ADDITIONAL QUESTIONS FROM SENATOR

CHAFEE

Question 1. Due to high property values and small total acreages available for protection, many areas in the Northeast are under severe threat as development encroaches on the region’s last remaining open spaces. In Rhode Island, coastal properties continue to be lost to development at a great pace, including valuable wildlife

areas in close proximity to the State’s five National Wildlife Refuges. Over the past

2 years, I have worked to secure Land and Water Conservation Fund earmarks to

ensure that the FWS has the necessary resources to purchase expensive coastal

habitats. As Director, how will you ensure strong Agency support for critical Fish

and Wildlife Service activities in Rhode Island and the Northeastern region?

Response. As you know, I am currently most familiar with Fish and Wildlife Service activities in Kansas. However, I have also worked in State wildlife agencies in

Massachusetts and Pennsylvania, and have lived in Vermont and other New England States. If confirmed, I will make it a high priority to become fully conversant

with the Service’s activities throughout the Nation, and I look forward to renewing

my acquaintance with the people and issues in the Northeastern States.

Question 2. Further land acquisition by the Fish and Wildlife Service in Rhode

Island depends upon the completion of a Land Protection Plan for the Rhode Island

Complex. In particular, a 250-acre project contiguous to the Ninigret NWR is being

jeopardized due to the delay in getting this Plan approved. As Director, will you see

that the Land Protection Plan for Rhode Island is approved as expeditiously as possible?

Response. I am not familiar with the status of this or other Land Protection

Plans. If confirmed, I will look into this and report back to you at an early date.

Question 3. During our meeting on October 16, you referred to the importance of

partnerships in meeting the Agency’s mission of protecting natural resources and

animal species. Please elaborate on how you envision partnerships strengthening

Service activities in the Northeastern region and across the country.

Response. I consider the development of partnerships and cooperative efforts the

most effective approach to conserving our natural resources. The cooperation and

participation of Federal, State and local agencies, organizations and individual citizens generally develops and effectively implements far more innovative and cost-effective solutions to natural resource problems than uniform direction from Washington. While in Kansas, I initiated a number of new partnership activities between

conservation and agricultural interests generally, and between hunters, anglers and

farmers and ranchers specifically. If confirmed I will place a high priority on bringing that approach to the activities of the Service.

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RESPONSES OF STEVEN A. WILLIAMS TO ADDITIONAL QUESTIONS FROM SENATOR

BAUCUS

Question 1. Mr. Williams, I would just like to secure your commitment to come

out to Montana if you are confirmed as Director of the U.S. Fish and Wildlife Service. I know you will have many significant challenges to deal with as Director, but

Montana is also facing significant challenges when it comes to how the Service is

funded, and how those funds are distributed among Regions. I know I’ve said this

many times in this committee, but the Service in Montana is understaffed and overworked. It would be very helpful, I think, if you could see for yourself the conditions

under which the Montana staff are working, and the effect it has on the Service’s ability to fulfill its mission in Montana. Will you come to Montana, Mr. Williams?

Response. If confirmed, I will travel to Montana at an early date, and will consult

with you prior to the visit.

Question 2. Mr. Williams, do you think that the Fish and Wildlife Service is implementing the Endangered Species Act in an effective manner? If not, what

changes would you make in how the Service does its job? How would those changes

further the purpose of the Endangered Species Act?

Response. I have not yet had an opportunity to be fully briefed on how the Service

administers the Endangered Species Act, and therefore have no specific plans or

proposals for any changes at this time. However, it appears that the Service has

for several years been moving toward a cooperative and (where possible) incentivebased approach to the conservation and recovery of listed species, and for promoting

the conservation of at-risk species so that their listing is not necessary. I understand that the Administration has proposed new programs, funded in the Interior

Appropriation bill, which further advance this approach. I am a strong advocate of

proceeding in this fashion, while addressing the specific legal requirements for the

protection of listed species, and consider this by far the most effective way to recover

listed species and to avoid the need to list others.

Question 3. Do you have any thoughts on how the Service can do a better job of

partnering with private landowners to preserve and protect endangered and threatened species? Along those same lines, what would you do to combat the negative

image many associate with the Endangered Species Act and its effect on private

property?

Response. In addition to the approach indicated in my response to your previous

question, it seems clear to me that there is a great deal of misunderstanding about

the ESA, and particularly its effect on landowners. While I have not had an opportunity to become familiar with how the Service currently addresses this issue, I am

sure there is room for improvement both in how the agency cooperates directly with

property owners and in how it explains its activities and requirements to the public,

including landowners. If confirmed, I will make addressing this a high priority.

RESPONSES OF STEVEN A. WILLIAMS TO ADDITIONAL QUESTIONS FROM SENATOR

BOXER

ENDANGERED SPECIES

Question 1. The citizen suit provision of the Endangered Species Act (ESA) has

been used by citizens to ensure that the U.S. Fish and Wildlife Service (FWS) fulfills its mandate to prevent species extinction and recover listed species. For example, 92 percent of all the California listings in the past 10 years were initiated by

citizen petitions. In several ways, this Administration has expressed hostility toward citizen participation in the ESA process.

Question 1a. Do you agree that citizens have a valid role to play in the petitioning

and enforcement provisions of the Endangered Species Act (ESA)?

Response. Yes, I believe citizen involvement is a key element in making the ESA

work.

Question 1b. Do you support the Administration’s failed effort to substantially restrict the ability of citizens to secure the listing of imperiled species under the ESA?

Response. While I am not familiar in detail with this proposal, I am advised that

it was a good-faith effort to address a real and continuing problem. If confirmed,

I will look forward to working with you and other interested parties to address this

issue in a way which commands wide support.

Question 2. Inadequate funding of the Endangered Species Act has been a major

hurdle to effective implementation of the statute. For several years the Service has

argued in court that it could not list more species because it lacked the funding to

process the petitions. FWS has stated that it would need at least $120 million must

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to address the existing listing and critical habitat backlog Yet, the Administration’s

funding request for these programs was anemic.

Question 2a. What will you do to ensure that the Service has adequate funding

for listing and other elements of the endangered species program?

Response. I am advised that the Bush Administration’s 2002 budget request for

listing represented a 15 percent increase over the 2001 amount requested by the

prior Administration, and a 34 percent increase over the amount actually appropriated for listing in fiscal year 2001.

In fashioning a 2003 request, I believe the Administration will need to balance

the needs of the Endangered Species program, the Service, and the Department of

the Interior with the many other demands and priorities for increased Federal funding, including other aspects of the Endangered Species Act itself. There are significant documented needs and backlogs in many Service and Departmental programs.

If confirmed in time to participate in the development of this request, which I am

advised is already very well advanced, I will do my best to ensure that funding is

requested based on documented needs consistent with the President’s priorities.

Question 2b. What other measures will you take to deal with the substantial backlog of listing, critical habitat designations, and Section 7 consultations?

Response. I will if confirmed undertake as a priority an examination of the Service’s current management practices, including for the ESA, to determine if there are

ways to more effectively utilize the resources and personnel available to the program. I would also explore whether a greater emphasis on a cooperative approach

with all interested parties might permit the agency to devote a greater percentage

of available resources toward on-the-ground conservation efforts.

Question 3. Do you believe that the regulatory definition of ‘‘harm’’ in the ESA,

which prohibits certain kinds of habitat modification without a permit, needs modification? Are you committed to enforcing all of the ESA’s habitat protections, including those that apply to private lands?

Response. Because I returned to my position in Kansas following the confirmation

hearing, I have not yet had an opportunity to become familiar with the Service’s

administration of the ESA in sufficient detail to address regulatory definitions.

However, I can assure you that if confirmed, I will enforce all of the provisions of

the ESA, including those applicable to private lands.

Question 4. Do you believe that the ESA is a fundamentally sound statute, or do

you believe that it needs to be legislatively amended? If you believe it needs to be

amended, please indicate the kind of changes you believe are necessary. Similarly,

do you anticipate pushing forward with any major Administrative reforms relating

to ESA implementation? If so, what are they?

Response. As indicated in my response to your question 3, I have not yet had an

opportunity to become sufficiently familiar with the Service’s administration of the

ESA to have developed any general or specific plans or proposals for changes,

whether relating to internal management, regulations or legislation. I do believe

that the ESA is one of our Nation’s most important conservation statutes, and as

with any major program, there may be ways in which it can be made more effective.

If confirmed, I can assure you that any changes I might propose would be aimed

at greater effectiveness in accomplishing the purposes of the Act.

GRIZZLY BEARS

Question 5. As you undoubtedly know, FWS finalized a plan last year to recover

grizzly bears by reintroducing them to their historic range through ‘‘citizen management’’ a plan that was developed collaboratively by the timber industry, labor and

conservation groups. The Bush Administration recently announced that it would not

continue with these efforts. Will collaborative efforts to engage local people in species recover receive support from this Administration in the future?

Response. While I cannot speak for the Administration at this time, I am a strong

advocate of State and local involvement in all types of conservation efforts, including

the recovery of listed species. If confirmed, I will continue this advocacy within the

Administration.

LANDOWNER INCENTIVES

Question 6. The FY02 Interior appropriations conference report contains a total

of $50M for two new endangered and threatened species landowner incentive programs proposed by the Administration. Could you explain specifically how you intend to spend the new endangered and threatened species landowner incentives

money?

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Response. I am advised that the Administration’s request for these funds provided

that they would be used for competitive grants to individuals and groups engaged

in private, voluntary conservation efforts benefiting listed and at-risk species, and

to States, Tribes and territories for development of such programs by these entities.

These programs can help recover listed species and help ensure that other species

never need to be candidates for listing.

I have not yet had an opportunity to explore with the Service any details on how

the programs might best be implemented. However, if confirmed, ensuring that

these new programs are placed in operation as quickly as possible will be one of

my highest priorities.

Question 7. I fully support landowner incentives; they are the best way to Make

the ESA work effectively on private lands. However, I cannot support programs that

pay landowners to comply with the law (i.e., programs that fund activities a private

landowner is already obligated to do to comply with the law). Do you agree with

this position?

Response. I agree that we should not pay landowners to comply with the law. I

would draw a distinction, however, between this and programs which provide financial assistance for such conservation actions as development of Habitat Conservation

Plans. This is particularly valuable where done by local governments in cooperation

with landowners, as I am advised is the case in Southern California.

I also believe it is valuable and appropriate to offer financial incentives to landowners to improve habitat or otherwise contribute to the conservation and recovery

of listed species, which they otherwise have no obligation to undertake.

Question 8. The USDA has a number of successful habitat conservation programs

that are popular with farmers and other private landowners (e.g., Wetlands Reserve

Program, Conservation Reserve Program, etc.). I have long thought a similar landowner program with a specific focus on habitat that benefits listed species should

be developed. Do you agree that such a program makes sense? If so, will you work

with me to explore the possibility of developing such a program?

Response. If confirmed, I would be pleased to work with you in exploring such an

approach. I have considerable experience in Kansas working with both conservation

and agricultural interests and programs, and would be quite interested in seeing

whether the approach taken with the Wetlands and Conservation Reserve programs

could be applied to our ESA recovery efforts.

UNLISTED SPECIES

Question 9. What priority do you place on the conservation and recovery of endangered and non-game species, in comparison to game species, in fulfilling the Fish

and Wildlife Service’s mission of ‘‘conserving, protecting and enhancing the nation’s

fish and wildlife and their habitats for the continuing benefit of the American people?’’

Response. I believe the conservation and recovery of endangered and non-game

species, in cooperation with States, private landowners and others, is and must continue to be a major element of the Service’s mission.

Question 10. As the Secretary for the Kansas Department of Wildlife and parks

you supported the Conservation and Reinvestment Act that would provide dedicated

conservation funding for the proactive management of wildlife species before they

become listed as threatened or endangered.

Question 10a. What is the Administration’s position on permanent conservation

funding?

Response. I am advised that the Administration has not yet taken a position on

the Conservation and Reinvestment Act.

Question 10b. What will you do as the director of the Fish and Wildlife Service

to ensure that there is a reliable revenue stream for these unlisted species?

Response. If confirmed, I will be an advocate within the Administration for funding for non-listed species, both for the Service and through cooperative efforts with

the States.

WETLANDS HABITAT

Question 11. The Fish and Wildlife Service under Acting Director Marshall Jones

filed comments on the Corps of Engineers’ proposed changes to the nationwide wetlands permit program that raised a series of concerns with the proposal. It is my

understanding, however, that the Secretary of the Interior has decided not to submit

the comments. As Director, what would you do to ensure that the release of scientific comments or scientific information is not blocked or delayed by political interference?

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Response. While I am not familiar with the details, I am advised that the Secretary is still reviewing the comments received on this issue from the various bureaus and offices within the Department, with a view toward submitting a unified

Departmental comment.

If confirmed, I am committed to working with the Secretary and other policymakers within the Department to ensure consideration of the best available scientific information in the Department’s decisionmaking process.

WILDLIFE REFUGES

Question 12. The National Wildlife Refuge System Improvement Act of 1997 set

new requirements for the management of refuges. In response, the U.S. Fish and

Wildlife Service issued regulations establishing procedures for determining what

uses are compatible with the mission of the refuge system and the mission of each

individual refuge. What uses would you deem to be incompatible with the mission

of the national wildlife refuge system?

Response. I have not yet had an opportunity to be fully briefed on the Improvement Act and the Service’s implementing regulations. However, it is my understanding that the Act provides that decisions as to what activities may be compatible are to be site specific determinations made in accordance with the requirements

of the Act. It accordingly is not possible to provide a list of activities or uses which

are generically incompatible.

ARCTIC NATIONAL WILDLIFE REFUGE

Question 13. The Bush Administration has indicated its clear intent to open the

Arctic National Wildlife Refuge to oil and gas development. Yet, FWS biologists

have said in the past that oil and gas development would do irreparable harm to

the wildlife species that depend upon this refuge. More recently, there was evidence

that the Secretary suppressed, and possibly even altered, information the Service

provided regarding the biological impacts of drilling.

Question 13a. How will you ensure that there is a unbiased assessment of the impacts that oil and gas exploration will have on the Arctic Refuge’s irreplaceable

wildlife species?

Response. As indicated previously, I am committed to open dialog and reliance

upon the best science in making decisions. If confirmed, and if Congress acts to open

the 1002 Area, I will expect U.S. Fish and Wildlife Service biologists to assemble

the sound science upon which the Department can base its decisions on where and

under what conditions to permit specific activities.

Question 13b. How will you ensure that all of the relevant information is provided

to Congress in a timely way?

Response. If confirmed, it will be my priority to ensure that Congress receives information it requests from the Fish and Wildlife Service on this and any other issue.

ARCTIC NATIONAL WILDLIFE REFUGE

Question 14. Will you protect the professionals in your agency from any repercussions that might result from public disclosure of scientific information, whether

through the press or other means?

Response. As I have stated in response to prior questions, I am fully committed

to the use of the best science in making decisions. I am also committed to protecting

the professionals in the U.S. Fish and Wildlife Service from any adverse repercussions that result from their acting in a legal and professional manner. As a trained

scientist and manager I am aware that any scientific agency, which the Service is,

must have policies to ensure that information disseminated in its name is in fact

valid. I have not had an opportunity to become familiar with the Service’s policies

in this regard.

Question 15. Are there any restrictions on agency scientists about communicating

with congressional staff, outside interest groups, the media, or other interested parties?

Response. I have not yet had an opportunity to become familiar with how the Federal process to coordinate and review information released in an agency’s name operates. If confirmed, I expect to become knowledgeable about this process very

quickly.

Question 16. The fiscal year 2000 Interior Appropriations bill did not provide

funds for lease sale preparation in the Arctic Refuge coastal plain as the Administration had originally requested. Are you aware of any plans that are underway to

draft regulations or otherwise plan for leasing in the coastal plain?

Response. No, I am not.

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MANAGEMENT OF OUTER CONTINENTAL SHELF

Question 17. While the Minerals Management Service has the lead role on Outer

Continental Shelf leasing issues, the U.S. fish and Wildlife Service has a responsibility to consider the impacts that leasing will have on listed species, migratory

birds, polar bears, sea otters, wildlife refuges, and other resources under the Service’s jurisdiction. I am deeply concerned about the impacts of offshore leasing activities in California, Alaska, and other sensitive ecosystems. Will you ensure that the

U.S. Fish and Wildlife Service continues to provide scientific expertise regarding the

impacts of offshore development activities?

Response. I believe the Fish and Wildlife Service has a significant role to play,

in conjunction with other agencies, in the assessments of the effects of Federal activities on fish and wildlife resources, and I anticipate that this important role will

continue.

RESPONSES OF STEVEN A. WILLIAMS TO ADDITIONAL QUESTIONS FROM SENATOR

LIEBERMAN

Question 1. How will you ensure that the integrity of the National Wildlife Refuge

System is maintained, including ensuring that the purposes of each refuge are

upheld?

Response. It is my understanding that through the National Wildlife Refuge System Administration Act, as amended by the National Wildlife Refuge System Improvement Act of 1997, the Congress has charged the Secretary, and, by delegation

of authority, the Director, with maintaining the biological integrity of the System

and with ensuring that the mission of the Refuge System and the individual refuges

are upheld. It is my further understanding that the Congress set forth in the Act

a process by which determination are to be made as to whether proposed uses of

a refuge would comply with these requirements. If confirmed, I will strongly support

these provisions.

Question 2. The laws governing National Wildlife Refuges mandate that any uses

be compatible with their purposes. For example, the purposes of the Arctic National

Wildlife Refuge are to conserve fish and wildlife populations and habitats in their

natural diversity, to fulfill international treaty obligations, to provide for continued

subsistence uses and to ensure water quality and quantity. Will you support protecting the purposes for which all refuges, including the Arctic Refuge, were established?

Response. If confirmed, I will strongly support carrying out the law by protecting

the purposes for which all refuges, including the Arctic National Wildlife Refuge,

were established, in accordance with the procedures established by law. I will also

carry out any addition direction which Congress may provide for management of

Arctic or any other refuge.

Question 3. The congressional Research Service found that the House passed bill

(H.R. 4) and Senator Murkowski’s S. 388 appear to reduce the authority of the U.S.

Fish and Wildlife Service over the Arctic Refuge coastal plain, including to ‘‘eliminate the usual compatibility determination processes.’’

Question 3a. Could you support legislation that would reduce your authority over

refuge management of fish, wildlife and their habitats and other purposes?

Response. From a general standpoint, I cannot say what my position would be on

any piece of legislation until I have had an opportunity to review it.

Question 3b. Given the U.S. Fish and Wildlife Refuge’s conclusions that the Arctic

Refuge coastal plain is the center of wildlife activity for the refuge, how could you

support the Administration’s endorsement of legislation that would allow oil development activities that would not be found compatible with the refuge’s purposes?

Response. It is my understanding that the President has stated that this issue

is a priority for him, and I support him on this. The President’s plan emphasizes

that Congress should require the use of the best available technology and ensure

that energy production activities protect the environment of the refuge. Ultimately,

a decision to allow oil development in the coastal plain of the refuge is reserved to

Congress, and if confirmed I would consider it my responsibility to provide the best

available information to address this matter.

Question 4. In light of the recent news that the Interior Secretary appeared to

omit scientific information provided by the U.S. Fish and Wildlife Service, in response to questions from a congressional committee chairman, how will you give the

public confidence that the full information provided by your professional scientific

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staff is used to base management and policy decisions of the USFWS and the Department of the Interior?

Response. If confirmed, I am committed to working with the Secretary and other

policymakers within the Department to ensure consideration of the best available

scientific information in the Department’s decisionmaking process. This is a responsibility I would take very seriously.

Question 5. The U.S. Fish and Wildlife Service with its professional biologists and

as the land manager of the Arctic National Wildlife Refuge provides scientific information to the public through its web site, publications, and presentations to the National Research Council and the media. Will you support the continued distribution

of this scientific information by the professional scientists and land managers of the

U.S. Fish and Wildlife Service?

Response. Yes.

Question 6. Will you support the professionals in your agency from any repercussions that might result from public disclosure of scientific information, whether

through the press or other means? Are there any restrictions on agency scientists

from being contacted by the media?

Response. As I have stated in response to a prior question, I am fully committed

to the use of the best science in making decisions. I am also committed to protecting

the professionals in the U.S. Fish and Wildlife Service from any adverse repercussions that result from their acting in a legal and professional manner. As a trained

scientist and manager I am aware that any scientific agency, which the Service is,

must have policies to ensure that information disseminated in its name is in fact

valid. I have not had an opportunity to become familiar with the Service’s policies

in this regard, nor with how the Federal process to coordinate and review information released in an agency’s name operates. If confirmed, I expect to become knowledgeable about this process very quickly.

Question 7. Existing law prohibits leasing, development and production of oil and

gas from the Coastal Plain of the Arctic National Wildlife Refuge (in Section 1003

of the Alaska National Interest Lands Conservation Act). Can you commit to us that

the U.S. Fish and Wildlife Service will not engage in planning for 3-D seismic exploration or lease sales for the Arctic Refuge coastal plain activities that are not allowed under current law, nor will it work on such plans if done by the Interior Department or BLM?

Response. If confirmed, I will not engage in activities prohibited by law, nor would

I cooperate with others in doing so. I am not sufficiently familiar with the applicable

statutes to know if planning for activities, and contributing environmental expertise

to planning, is allowable, and if confirmed my actions would be carried out with full

respect for the law.

Question 8. The fiscal year 2002 Interior Appropriations bill did not provide funds

for lease sale preparation in the Arctic Refuge coastal plain as the Administration

had originally requested. Are you aware of any plans that are underway to draft

regulations or otherwise plan for leasing in the coastal plain?

Response. No, I am not aware of any such plans.

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