U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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

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

82–666 PDF 2002

EPA ELEVATION

HEARINGS

BEFORE THE

SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST AND SECOND SESSIONS

SEPTEMBER 21, 2001; MARCH 21 AND JULY 16, 2002

Serial No. 107–135

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

BOB BARR, Georgia

DAN MILLER, Florida

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

DAVE WELDON, Florida

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

C.L. ‘‘BUTCH’’ OTTER, Idaho

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

JOHN SULLIVAN, Oklahoma

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

JANICE D. SCHAKOWSKY, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JAMES C. WILSON, Chief Counsel

ROBERT A. BRIGGS, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON ENERGY POLICY, NATURAL RESOURCES AND REGULATORY

AFFAIRS

DOUG OSE, California, Chairman

C.L. ‘‘BUTCH’’ OTTER, Idaho

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

STEVEN C. LATOURETTE, OHIO

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

JOHN SULLIVAN, Oklahoma

JOHN F. TIERNEY, Massachusetts

TOM LANTOS, California

EDOLPHUS TOWNS, New York

PATSY T. MINK, Hawaii

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California

DAN SKOPEC, Staff Director

JONATHAN TOLMAN, Professional Staff Member

ALLISON FREEMAN, Clerk

ELIZABETH MUNDINGER, Minority Counsel

(III)

C O N T E N T S

Page

Hearing held on:

September 21, 2001 .......................................................................................... 1

March 21, 2002 ................................................................................................. 95

July 16, 2002 ..................................................................................................... 199

Statement of:

Boehlert, Hon. Sherwood L., a Representative in Congress from the State

of New York ................................................................................................... 4

Davies, J. Clarence, senior fellow, Resources for the Future; Janet L.

Norwood, fellow, National Academy of Public Administration; Robert

W. Hahn, director, AEI-Brookings Joint Center for Regulatory Affairs;

and Janice Mazurek, director, Center for Innovation and the Environment, Progressive Policy Institute ............................................................... 36

Ehlers, Hon. Vernon J., a Representative in Congress from the State

of Michigan .................................................................................................... 25

Futrell, J. William, president, Environmental Law Institute; William

Kovacs, vice president, Environment and Regulatory Affairs, U.S.

Chamber of Commerce; and Wesley Warren, senior fellow for environmental economics, Natural Resources Defense Council ............................ 248

Horn, Hon. Stephen, a Representative in Congress from the State of

California ....................................................................................................... 9

Studders, Karen A., commissioner, Minnesota Pollution Control Agency;

and Jane T. Nishida, secretary, Maryland Department of the Environment ............................................................................................................... 164

Tinsley, Nikki, Inspector General, U.S. Environmental Protection Agency;

and John Stephenson, Director, Natural Resources and Environment,

General Accounting Office ............................................................................ 100

Whitman, Christine Todd, Administrator, Environmental Protection

Agency; and James Connaughton, chairman, Council on Environmental

Quality ........................................................................................................... 222

Letters, statements, etc., submitted for the record by:

Boehlert, Hon. Sherwood L., a Representative in Congress from the State

of New York, prepared statement of ........................................................... 7

Connaughton, James, chairman, Council on Environmental Quality, prepared statement of ........................................................................................ 229

Davies, J. Clarence, senior fellow, Resources for the Future, prepared

statement of ................................................................................................... 39

Ehlers, Hon. Vernon J., a Representative in Congress from the State

of Michigan, prepared statement of ............................................................. 27

Futrell, J. William, president, Environmental Law Institute, prepared

statement of ................................................................................................... 250

Hahn, Robert W., director, AEI-Brookings Joint Center for Regulatory

Affairs, prepared statement of ..................................................................... 61

Horn, Hon. Stephen, a Representative in Congress from the State of

California:

Organization manual ................................................................................ 31

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

Kovacs, William, vice president, Environment and Regulatory Affairs,

U.S. Chamber of Commerce, prepared statement of .................................. 261

Mazurek, Janice, director, Center for Innovation and the Environment,

Progressive Policy Institute, prepared statement of .................................. 74

Nishida, Jane T., secretary, Maryland Department of the Environment,

prepared statement of ................................................................................... 179

Norwood, Janet L., fellow, National Academy of Public Administration,

prepared statement of ................................................................................... 52

Page

IV

Letters, statements, etc., submitted for the record by—Continued

Ose, Hon. Doug, a Representative in Congress from the State of California, prepared statements of.................................................................... 2, 98, 202

Otter, Hon. C.L. ‘‘Butch’’, a Representative in Congress from the State

of Idaho:

Letter dated December 20, 2001 .............................................................. 162

Prepared statement of ............................................................................... 144

Stephenson, John, Director, Natural Resources and Environment, General Accounting Office, prepared statement of ........................................... 127

Studders, Karen A., commissioner, Minnesota Pollution Control Agency,

prepared statement of ................................................................................... 168

Sullivan, Hon. John, a Representative in Congress from the State of

Oklahoma, prepared statement of ............................................................... 317

Tierney, Hon. John F., a Representative in Congress from the State

of Massachusetts, prepared statement of ................................................... 208

Tinsley, Nikki, Inspector General, U.S. Environmental Protection Agency,

prepared statement of ................................................................................... 103

Warren, Wesley, senior fellow for environmental economics, Natural Resources Defense Council, prepared statement of ........................................ 288

Waxman, Hon. Henry A., a Representative in Congress from the State

of California, prepared statement of ........................................................... 216

Whitman, Christine Todd, Administrator, Environmental Protection

Agency, prepared statement of .................................................................... 224

(1)

EPA ELEVATION: CREATING A NEW CABINET

LEVEL DEPARTMENT

FRIDAY, SEPTEMBER 21, 2001

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 9:45 a.m., in room

2247, Rayburn House Office Building, Hon. Doug Ose (chairman of

the subcommittee) presiding.

Present: Representatives Ose, Otter, Cannon, Duncan, Tierney,

and Kucinich.

Staff present: Dan Skopec, staff director; Barbara Kahlow, deputy staff director; Jonathan Tolman, professional staff member; Regina McAllister, clerk; Elizabeth Mundinger and Alexandra Teitz,

minority counsels; and Earley Green, minority assistant clerk.

Mr. OSE. The hearing will come to order. Committee, good morning everyone. In the interest of time, I want to submit my statement for the record.

[The prepared statement of Hon. Doug Ose follows:]

2

3

4

Mr. OSE. Mr. Tierney.

Mr. TIERNEY. I also would like to submit a statement for the

record and ask that it be kept open for submission of relevant materials.

Mr. OSE. Without objection.

Mr. TIERNEY. And then basically give my apologies to the three

witnesses. We are dealing with the airline bill and I have to get

over to another meeting. So I will certainly read your testimony

and I appreciate the work that you have done and appreciate your

understanding.

Mr. OSE. I would like to welcome our colleagues this morning,

Mr. Boehlert of New York, Mr. Horn of California and Mr. Ehlers

of Michigan.

We are going to hear first from Mr. Boehlert, who is the chairman of the Science Committee and has been a veteran of efforts to

elevate EPA to Cabinet level, going back more than a decade.

Then we will hear from Mr. Horn, who is chairman of the Subcommittee on Government Efficiency, Financial Management and

Intergovernmental Relations, and quite literally one of the busiest

chairmen in Congress. He is a one-man academy of experts on government structure and management.

And finally, we are going to hear from Mr. Ehlers, who is not

only chairman of the Subcommittee on Environment, Technology

and Standards, but is also a physicist by training. He definitely improves the collective scientific wisdom of Congress by his very presence.

Mr. Boehlert.

STATEMENT OF HON. SHERWOOD L. BOEHLERT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW

YORK

Mr. BOEHLERT. Thank you, Mr. Chairman. I want to thank

Chairman Burton and the Democrat leadership of the committee

for helping make possible today’s hearing. Based on its name alone,

this subcommittee must be one of the busiest in Congress. Energy

Policy, Natural Resources and Regulatory Affairs cover just about

every hot issue under the sun, actually including the sun.

But I am not here to talk about solar power, although I’d be delighted to, and I recognize your time constraints in the press of

other priorities both international and domestic, so I’ll try to be

brief. That can be a challenge, given the importance of the subject

and my long and often tortuous legislative experience with the effort dating back to 1988. But you know the issues and the importance of EPA’s mission, so I’ll get right to the point.

And actually there are three points:

No. 1: Congress should elevate EPA to the Cabinet level status

it deserves and needs. Now is the time and this is the place to do

what is long overdue. What does the United States have in common with Monaco, Libya, Panama, Peru and five other countries?

These are the holdouts that, for whatever reason, have chosen not

to make their primary environmental agencies Cabinet level departments. Every other major country has done so. Today, more

than ever before, we need to make EPA an official member of the

President’s Cabinet.

5

This has nothing to do with the stature or capability of Governor

Whitman, who I think is doing a tremendous job. Instead, it is a

question of timing and national and global conditions. Environmental issues are becoming more complex, more international and

more global. This statement is even truer today than it was when

I made it before the Senate Governmental Affairs Committee just

2 months ago; climate change, widespread toxic pollution, both

chemical and biological, and invasive species are obvious examples.

The House Science Committee, which I am privileged to chair, is

looking precisely at such issues. There are also growing complexities involving natural resource damages and environmental challenges among other Federal agencies, such as the Department of

Energy and the Department of Defense.

No. 2: Don’t be tempted by other environmental side issues or

controversies. Based on my previous experience with Cabinet level

legislation, I cannot overemphasize the importance of staying focused. Let us not forget the lessons of 1993 and 1994 when elevation bills addressed wide-ranging and controversial issues and

became magnets for further controversy. The effort ultimately

failed. Republicans, Democrats, conservatives, and liberals alike

recognized what all of us should recognize today: Only a straightforward, clean elevation bill can make it through the process. That

has been the message I have been receiving from the administration—and they re-emphasized that again just yesterday—and many

in Congress and I believe they are right.

Many issues confront EPA. Some of these are organizational in

nature. Some are left over from previous administrations and some

are brand new. Some can be addressed administratively. Many

should be addressed through congressional oversight. Mr. Horn, the

distinguished chairman of the Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations,

and a good friend of mine and a resource to this Congress, knows

this. His expertise in history and government and his appreciation

for environmental protection have served the Congress and the Nation well over the years. I look forward to working with him on an

EPA elevation bill as well as his particular legislation. The secret

to success, I believe, will be for Congress to keep this bill clean and

simple, while at the same time, encouraging oversight hearings on

other legitimate issues and action on separate and discrete bills by

appropriate committees.

And the third and final point, Mr. Chairman: H.R. 2438 and H.R.

64 should continue to move on parallel but separate tracks. Mr.

Chairman, I strongly support Mr. Ehlers’ bill, H.R. 64, which would

strengthen science at EPA by, among other things, establishing a

Deputy Administrator for Science and Technology. The bill is pending before our Science Committee and I anticipate full committee

approval very soon, perhaps as early as the week after next. While

it is not the subject of this hearing, I appreciate the opportunity

to comment on its importance and conventional connection to H.R.

2438. Based on committee jurisdictions and recognizing the preferences of the administration, I would urge your subcommittee not

to try to attach H.R. 64 or provisions from H.R. 64 to H.R. 2438.

In addition, we continue to have discussions with the administration about H.R. 64 and how its provisions might be implemented

6

by and integrated within a new Department of Environmental Protection. For the time being, it continues to make sense to move

these legislative initiatives on separate tracks.

Thank you, Mr. Chairman. I hope markup of a clean, bipartisan

bill, once again let me stress, supported by the administration as

a clean bill will follow very soon. I am confident that with your

help and the bipartisan support of the committee and full committee, as well as the continued support of the administration, we can

make this important effort a success.

Mr. OSE. Thank you, Mr. Boehlert.

[The prepared statement of Hon. Sherwood L. Boehlert follows:]

7

8

9

Mr. OSE. Mr. Horn.

STATEMENT OF HON. STEPHEN HORN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. HORN. Thank you, Mr. Chairman. It is good to see you in

charge of this subcommittee, and I leave to you and the subcommittee what pieces you think make common sense. I am delighted to

be here with my two colleagues with whom I have great esteem,

and that is Mr. Boehlert and Mr. Ehlers.

And let me just say a couple of points. It is clear, although we

have been committed to environmental protection since 1970 with

the establishment of the Agency, the priority of that commitment

has been the subject of reinterpretation with each new administration because EPA has not had a permanent seat at the Cabinet.

With the increasing need to protect the environment across borders

and the increasingly complicated nature of environmental protection, we must elevate the existing Agency to a department. In having this discussion, we should take it as an opportunity to provide

effective oversight and review many areas of our environmental operations.

Our legislation does this. Two areas of continuing concern: First,

despite the implementation of the Government Performance and

Results Act, which the General Accounting Office has had great

concerns about, the current Agency and we also have problems

with them on information management, collection, coordination,

computer security, and they remain real challenges for the EPA—

and I hope that during the course of debating whether to elevate

the existing EPA to a Cabinet level department, we will focus significant attention to information management processes and resources within the current Agency to ensure that our environmental information is reliable and of the highest quality.

Second, we must ensure that the best practice management aids

and sound environmental decisions will be the result. Most notably,

that includes using risk assessment to understand the benefits to

be achieved by proposed regulations and the costs that will necessarily be borne to meet those objectives—risk assignment and assessment as it was originally proposed by our colleagues, Representatives Thurman and Mica back in 1993–1994, and it is included in my legislation. It has been controversial. However, as a

critical management tool, it would enable our environmental regulators to begin the process of setting achievable program objectives

and methodologies to measure our progress toward achieving environmental goals.

The inability of the existing EPA to establish risk-based program

priorities is a deficiency that has been recently noted by the General Accounting Office and the EPA’s Inspector General, and requiring risk assessment as part of the regulatory process will do

much to resolve this.

I end these comments here and I submit a long statement for the

record, Mr. Chairman, if I might. And thank you for holding this

hearing this morning. I will be happy to have any questions.

Mr. OSE. Thank you, Mr. Chairman.

[The prepared statement of Hon. Stephen Horn follows:]

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Mr. OSE. Mr. Ehlers.

STATEMENT OF HON. VERNON J. EHLERS, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN

Mr. EHLERS. Thank you, Mr. Chairman. It is good to see you in

that seat. I would like to speak about H.R. 64, a bill that I sponsored. You of course heard testimony about addressing the global

issues from the previous two witnesses. I am speaking about just

one specific aspect, and that is how we can improve the science in

the EPA.

I appreciate this opportunity to discuss the different ways to elevate the EPA to Cabinet level and also want to present my

thoughts about reforms the EPA should undertake immediately regarding use of science and technology in the regulatory process. As

co-sponsor of Chairman Boehlert’s legislation, I certainly echo his

comments today. I fully support its passage and hope the Government Reform Committee will quickly move it to the House floor.

Environmental policy is one of those rare issues that literally affects every single American every single day of their lives. Clean

air, clean water, clean land certainly are no less important than agriculture, education, transportation and interior issues dealt with

by some of the other 14 Cabinet level departments. The EPA

should be recognized for the important role they play in Americans’ daily lives.

In my view, one of the key issues surrounding this debate is how

should Congress address some fundamental regulatory process

changes that the EPA needs to make. Certainly if this Agency is

to become a Cabinet level department, it needs to be held to the

highest standards of process. I believe that the most fundamental

reform the EPA needs to make to the regulatory process is to

strengthen the role that science plays in the Agency’s decisionmaking process.

As many members are aware, I introduced H.R. 64, which the

Science Committee is reviewing, because I believe the Agency

needs a new Deputy Administrator for Science and Technology to

oversee the vast and complex scientific mission of the Agency. It is

essential that science infuse the entire regulatory process, from initial concept to final regulation, if we are to have good science-based

regulations.

Let me address the intent of my legislation before I discuss its

relevance to the other bills discussed here. Numerous times I have

heard my colleagues and the scientific community and the business

community and the public say, what we really want is the use of

sound science at the EPA. Everyone agrees that regulatory decisions made by the EPA should be based on the best possible scientific research. However, many institutions, citizens and groups

believe that decisionmaking at the EPA can be improved by a

greater integration of science into the process.

Many different studies have documented the need for strengthening science at the EPA. The most recent of these was issued by the

National Research Council in September of last year. The two primary recommendations of that report were to establish a new Deputy Administrator for Science and Technology at the EPA and to

set a fixed term for the existing Assistant Administrator for the OfVerDate 11-MAY-2000 10:31 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 C:\DOCS\82666.TXT HGOVREF1 PsN: HGOVREF1
26

fice of Research and Development. These changes would elevate the

role of science in the decisionmaking process at the Agency as well

as provide more stability to existing research efforts being conducted inside of the Agency.

Both of these charges are captured in H.R. 64, which I have introduced to ensure that science informs and infuses the regulatory

work of the EPA. This legislation also builds on the review of our

National Science Policy that I prepared in 1998 for the House

Science Committee and which was adopted by the House of Representatives in the 105th Congress. The recommendation in that

report that received the most favorable response was that science

be used differently in the regulatory and judicial processes. It

should not be used in an adversarial fashion in the courts and

should not be used as a mere adjunct to the regulatory system.

Rather, science should be used at the beginning, middle, and end

of an agency’s decisionmaking process.

Science can help us make informed decisions about the relative

risks of a threat, whether or not we need to address it, and about

how to allocate resources to address the threat. The Environment,

Technology, and Standards Subcommittee, which I chair, has

unanimously passed this bill out and it is expected to come before

the full committee in the first week of October or soon thereafter,

and I certainly hope that it will soon reach the floor of the House.

I might also mention this legislation that I have introduced, H.R.

64, is supported by the Science Advisory Board of the EPA. And I

have received numerous letters from professional scientific associations and from business groups and environmental groups supporting the passage of this bill.

I currently support the dual track strategy of moving the elevation bill through the Government Reform Committee and also

H.R. 64 through the House Science Committee. I believe both approaches should be taken. I hope that my bill, H.R. 64, will pass

into law, and that would, I think, make a strong case for including

it in the departmental—I’m sorry, the departmental portfolio that

the Agency will have once it becomes a Cabinet level department.

But I also am aware of the legislative history, so I was trying to

address too many issues, and an elevation bill likely dooms the effort. So I believe this is the best way to move H.R. 64 through the

process quickly. And once we get it through the House, we can assess how we can combine the two bills.

I also want to say that because we have a new administration

at the other end of Pennsylvania Avenue, we have a golden opportunity to improve the operation of the EPA, and we are looking forward to working with you and your colleagues as well as Chairman

Boehlert and Chairman Horn and the administration and other interested parties to bring about these important changes by passing

the bills that are before us. I thank you for your time and consideration.

[The prepared statement of Hon. Vernon J. Ehlers follows:]

27

28

29

Mr. OTTER [presiding]. Thank you very much, Congressman

Ehlers. The Chair has been made aware that Members of this

panel have to—are maybe even 3 minutes late for another meeting.

Could you give the Chair some sort of an expression of the time

that you can spend here with us?

Mr. BOEHLERT. I’m fine. I have been on this for 10 years.

Mr. OTTER. Mr. Horn.

Mr. HORN. I have to go to the Transportation Aviation also, but

I can stay for 10 minutes certainly.

Mr. OTTER. Then I would like to start off.

Mr. Horn, your bill also embraces several of the ideas on science

that Mr. Ehlers’ bill does. How do you feel about Mr. Ehlers’ bill?

Mr. HORN. I think it is very worthwhile. If we can’t get more

things in there, that is certainly very useful and I would support

that.

Mr. OTTER. Mr. Boehlert.

Mr. BOEHLERT. I’m a co-sponsor, and we’re moving that through

my Science Committee. I think it is very important that we have

science-based decisionmaking. That’s why I have strongly endorsed,

and Dr. Ehlers I think agrees with this, moving forward on a parallel track. The history indicates—we have been through this in

1993 and 1994. Everybody talks about elevating EPA to Cabinet

level status. Incidentally, I might add that the President and the

administration are fully supportive of my bill and fully supportive

of the concept of a clean bill. That does not address the separate

legislation introduced by Dr. Horn and Dr. Ehlers. I am enthusiastic about working with them in partnership; but the fact of the

matter is, if we want to do what we all have talked about for a

long, long time, we have to avoid attaching anything else that will

open up this bill to delay any unnecessary lengthy debate. I fully

support and am enthusiastic of my support of Dr. Ehlers’ bill and

we are moving that on a fast track through the Science Committee.

But let me stress, it should go on a parallel track. EPA elevation

must be a clean bill, or we will repeat what we have been through

before. And I don’t want to do that and neither does the President.

Mr. OTTER. Mr. Boehlert, I have several questions about the elevation bill. It has been my experience, at least in business, that

you can have only a certain critical mass, I should say, of people

reporting to you in order to do an effective job, or a couple of things

happen. No. 1, you diminish the opportunities for those that are

truly important to the committee or to the people that are reporting to you. Some of the criticism that I have at least heard on the

elevation of any agency—not just EPA, any additional agency—is

that to the extent that you increase the numbers in the Cabinet

room, No. 1, you decrease the administration’s focus on other critical functions of government. And I understand it is arguable, you

know, where you elevate EPA according to military defense and

these kinds of things. But what would you offer as an argument

against those who would say, the more people you put in that

room, the less effective each of them are going to be?

Mr. BOEHLERT. First of all, I would point out that you don’t add

anyone to that room. The Administrator of EPA is already designated by the President of the United States as a member of the

Cabinet. She has a seat at the table. She has a seat at the table

30

only at the sufferance of this President. The next President may

view it differently.

Second, this Administrator is given Cabinet level status by the

President. But in reality, she is in a subordinate position when she

represents the U.S.’ interests abroad. For example, she travels to

international conferences dealing with very sensitive subjects on

the environment. She is not at a ministerial level or a Cabinet level

officially, so she is dealing from a subordinate position as she is in

dealing with the other members of the President’s Cabinet. So the

President already has the Administrator reporting directly to him.

The President is enthusiastic in support of this elevation. I think

the time is long overdue that we do this.

Mr. OTTER. And what about diminishing the focus that the President would have on other areas of government?

Mr. BOEHLERT. It won’t diminish the focus because he already

has a focus.

Mr. OTTER. I understand that. But given the nature of an invited

position as opposed to an endowed position, I think that would

change the focus considerably, don’t you?

Mr. BOEHLERT. The focus is what the President chooses it to be,

and he has indicated his intention to give the proper attention and

focus to the environment. The American people expect us to protect

the air we breathe and water we drink. They expect us to give premier importance to the top official in this country dealing with the

environment. They expect the President to have the top environmental official at his side as he makes important decisions. And

the President has indicated that is exactly what he wants. So he

is on the same wavelength as the American people.

We are not adding any expense or a name change on the door.

We are not even adding a new chair. They are kind of expensive.

You have had the privilege of sitting down there, so have I, down

at the Cabinet room. The same chair will be there. The same occupant will be there, only with a different title, demonstrating in very

tangible form that this President, this administration, this government, gives the highest priority to environmental concerns.

Mr. OTTER. Thank you. Mr. Cannon.

Mr. CANNON. In deference to your time, I have one quick question. How do you deal with the Council on Environmental Quality

in your bill? Do you change that?

Mr. BOEHLERT. Don’t change that at all.

Mr. OTTER. Thank you very much. We appreciate your attention,

and we appreciate your extending your time here so we could ask

these questions.

Mr. HORN. Mr. Chairman, if I might put in the record the Organization Manual as it pertains now to the Environmental Protection Agency.

Mr. OTTER. Without objection, so ordered.

[The information referred to follows:]

31

32

33

34

35

36

Mr. OTTER. Our second panel this morning is in this order: Dr.

J. Clarence Davies, senior fellow, Resources for the Future; Dr.

Janet L. Norwood, fellow, from the National Academy of Public Administration; Dr. Robert W. Hahn, the director of the AEI-Brookings Joint Center for Regulatory Affairs; and Janice Mazurek, director, Center for Innovation and Environment Progressive Policy

Institute.

If you would please take your positions at the table. If I could

ask you to please stand and raise your right hands. We do swear

our witnesses here. Sometimes we swear at them.

[Witnesses sworn.]

Mr. OTTER. Being the vice chairman, I don’t always get an opportunity to explain all the rules and regulations, but I have listened

to Chairman Ose give them enough times that I do know that we

are limited to 5 minutes, and we want to give everybody an opportunity to discuss particular topics and their feelings about this legislation, but also want to give an opportunity to those of us who

are sitting on the committee to ask sufficient questions in order to

brief ourselves on the issue and on the legislation. So if you pay

a little attention to the light in front of you, green is you are on

‘‘go.’’ And when it hits white, you have about 45 seconds. And when

it hits red, if you’re not in the process of summing—we would like

to sum up.

Dr. Davies.

STATEMENTS OF J. CLARENCE DAVIES, SENIOR FELLOW, RESOURCES FOR THE FUTURE; JANET L. NORWOOD, FELLOW,

NATIONAL ACADEMY OF PUBLIC ADMINISTRATION; ROBERT

W. HAHN, DIRECTOR, AEI-BROOKINGS JOINT CENTER FOR

REGULATORY AFFAIRS; AND JANICE MAZUREK, DIRECTOR,

CENTER FOR INNOVATION AND THE ENVIRONMENT, PROGRESSIVE POLICY INSTITUTE

Dr. DAVIES. Thank you, Mr. Chairman. I appreciate the opportunity to be here. Let me start by saying that my views are simply

my personal views. Resources——

Mr. OTTER. Could I get you to pull that mic just a little closer

to you.

Dr. DAVIES. Is that better?

Mr. OTTER. That is much better. And I would warn everybody

who is not involved in the conversation that the mics are hot all

the time, so you want to be careful what you say. Dr. Davies.

Dr. DAVIES. Resources for the Future is a research organization

so it does not take positions on policy matters, so my views are

only my personal views. I want to make that clear in the beginning. But I have had a longstanding involvement in the subject of

this hearing. I more than 30 years ago coauthored the reorganization plan that created EPA in the first place. And at the time of

the events that Mr. Horn referred to of the previous consideration

of Cabinet legislation, I was the Assistant Administrator for Policy

in EPA and therefore had a fairly active role in those considerations.

I share the view expressed by the members of the previous panel

that elevation of EPA to Cabinet level is long overdue. As I guess

Mr. Boehlert mentioned, we are one of the few countries in the

37

world that does not have a Cabinet level environment department.

Environment is a major fundamental and permanent responsibility

of the Federal Government and its importance should be recognized

in organizational terms. Furthermore, it is important internationally to send a signal that we consider environment to be a Cabinet

level responsibility. I guess to be more precise, it is important that

we erase the negative signal that we give repeatedly in the international arena by having environment occupy a lower level within

the Federal bureaucracy.

Let me in this context just mention that in terms of span of control of the President the concern that you raised, Mr. Chairman,

a few minutes ago, I really do not think that is a serious concern.

As mentioned by Mr. Horn or Mr. Boehlert, the Administrator of

EPA is already at the table in the Cabinet. The Cabinet is not a

decisionmaking body and therefore, the number there is not really

all that relevant. And in terms of reporting to the President, I can

put on my political science hat and say that there are Cabinet level

positions which Presidents have ignored and other positions which

are not Cabinet level, like National Security Advisor, for example,

which the President pays a good deal of attention to. It is not unusual, for example, for Republican Presidents, let’s say, never to

see their Secretary of Labor in anything other than a formal Cabinet meeting. So span of control does not have the same kind of relevance, I think, that it does in the private sector.

I am very sympathetic to Mr. Boehlert’s urging that we do a simple, clean elevation without any additional provisions. Nevertheless, I think there are a number of things that at least this committee should consider adding onto the legislation; and perhaps my

hope would be at least that a number of them would be noncontroversial and, therefore, would not subject the elevation to the

same kind of jeopardy that concerns Mr. Boehlert. I don’t know. It

is a serious concern. No doubt about that.

I go into details in my testimony on the various items that I

think could be usefully considered in the context of a Cabinet bill:

A mission statement for the Agency. EPA has never had a mission

statement, and I think it would help in a number of contexts if it

did have a mission statement.

Integration across media. There is no policy area more fragmented than pollution control. Jan Mazurek and I have spelled out

some of the details of that in a book which I have given to staff.

And you are not going to remedy that in the context of Cabinet legislation, but I think it could be considered that some kind of commission, some kind of extraordinary body, could be convened to review the statutory authorities administered by the Agency and

ways which that could be made into a more integrated whole.

Better science has been touched upon. And I subscribe to the notion of a Deputy or an Under Secretary for Science in the Agency.

I think that would be useful. I think there may be other steps that

could be done to improve science within the Agency. Better data,

I suspect Janet Norwood is going to deal with. But Bureau of Environmental Statistics is badly needed, in my view, and the Office of

Information which has been set up by Mrs. Whitman is not an adequate substitute for that; in fact, may detract from that in some

38

way. So I think we still need a Bureau of Environmental Statistics,

and it is a neglected function but an important one.

Program evaluation and economic analysis, which I think Mr.

Horn’s bill deals with, I’m not sure I fully agree with the way it

deals with it, but it does address it and addresses it in important

ways.

Statutory basis for innovation. The Agency is running a number

of pilot projects—XCEL, CSI, so on—without any statutory authority whatsoever. And I think there is general agreement across

party lines and so on that kind of experimentation is useful, constructive, and needed, but it is very handicapped by not having any

statutory basis—— Mr. OTTER. Could I get you to wrap up?

Dr. DAVIES. And finally, the international role, which I think

would be helpful to mention. I don’t think the legislation should become some kind of Christmas tree, but the things I have mentioned

are important and worth doing. They are appropriate for Cabinet

legislation and I think they should be relatively noncontroversial if

framed in the right way.

Mr. OTTER. Thank you.

[The prepared statement of Dr. Davies follows:]

39

40

41

42

43

44

45

46

47

48

49

50

Mr. OTTER. Dr. Norwood.

Dr. NORWOOD. Thank you very much. I appreciate the opportunity to be here and to tell you a little bit about some of the work

that the National Academy of Public Administration has been

doing. My background is mainly in statistical policy, having been

Commissioner of Labor Statistics for 131⁄2 years, and I am now

doing a great deal of work on promoting scientific development in

a variety of areas, including the environment. I was a member of

all three NAPA panels, which studies were completed in 1995, 1997

and then 2000. These three reports reviewed the entire operations,

the internal structure and implementation strategies as well as the

manner in which intergovernmental relations in EPA were handled.

A number of recommendations were made, and I’d be happy to

discuss those with the committee at a later time. I was given three

questions by the subcommittee staff, and I would like to focus my

attention on those.

The first was: Can EPA improve its effectiveness? I believe that

we found in the three academy reports that it would be wise for

EPA to focus on a few of the most important basic problems, using

its energy, resources and innovation to address the problems of

smog, water pollution and greenhouse gases.

As Terry said, we believe very strongly that the Congress and

EPA should work together to develop legislation to permit EPA to

move across environmental media. The stovepipe kind of organization today and the way in which money and resources need to be

spent is really counterproductive. We believe that EPA should have

an effective system to collect objective and scientific data, and I

will get back to that.

Does EPA need structural changes? The most important is in the

statistical area. On the question of EPA elevation to status as a

Cabinet agency, we really didn’t consider that. But I can tell you

my personal view, which is that elevation to Cabinet status would

certainly increase EPA’s importance in the public arena, and especially internationally, and provide its Administrator with a better

chance of getting attention.

But I think it’s important to point out that Cabinet status will

not solve all of EPA’s problems. We have to remember that there

are a significant group of Cabinet agencies—State Department,

Transportation, Energy, Agriculture, Labor and there are more—

who are also involved in environmental issues. And the lines of jurisdiction among these agencies, and between them and the EPA,

need clarification when Congress considers legislation on the status

of EPA in our government.

I believe that EPA needs to be a scientific agency, and that to

be successful, any scientific agency must have an adequate system

of information that is objective. I would hope that any bill which

creates Cabinet status for EPA would take account of the need for

an independent Bureau of Statistics within EPA, which is headed

by a Presidentially appointed professional with a fixed term of office. We have those models in other parts of the government and

they have worked extremely.

There is no way that EPA will be able to go ahead with innovative programs, with changing the way it relates to States and local

51

areas and to business unless it has a system of scientific information that is objective and goes across all of its media, that can be

used to evaluate the effectiveness of the work that is being done

as further devolution occurs.

I’d be glad to answer any questions.

Mr. OTTER. Thank you very much.

[The prepared statement of Ms. Norwood follows:]

52

53

54

55

56

57

58

59

Mr. OTTER. Dr. Hahn.

Dr. HAHN. Thank you very much, Mr. Chairman. I didn’t get

three questions to answer and I was instructed to think outside the

box a little, so I will try to do this. First I want to say that the

formal remarks I would like to submit for the record were coauthored with my colleague, Randall Lutter, at the AEI-Brookings

Joint Center.

Mr. OTTER. Without objection.

Dr. HAHN. Since we are short on time, let me make two key

points, and then focus on my recommendations. The first point is

that EPA should not be elevated to Cabinet status without very serious thought. Once an agency is granted Cabinet status, it is very

unlikely in our lifetime to lose that status.

The second point is that we ought to address several defects in

both Federal environmental policy and the policy process. EPA, as

you probably know, accounts for the lion’s share of environmental,

health, and safety regulations. We can estimate that in several

ways, but it is on the order of three-quarters.

One of the fundamental problems of any mission-oriented agency—and this was pointed out by Justice Stephen Breyer in a very

good book called Breaking the Vicious Circle—is that it tends to

have tunnel vision. Bureaucrats tend to focus on their particular

problem. We as economists think that environmental policy is a

very important problem, but we ought to think very carefully about

weighing the benefits and costs of any individual policy before we

move forward. After all, at the end of the day, EPA is primarily in

the business of making regulations.

Some studies at the Joint Center suggest that EPA does not always carefully examine the benefits and costs of its policies. Using

the government’s numbers, quantifiable benefits fall short of quantifiable costs in almost half of the regulations we examined over

about a 15-year period.

Let me turn briefly to our recommendations. We ought to think

carefully about requiring the Administrator to weigh benefits and

costs or at least, not precluding the Administrator or the Cabinet

Secretary from considering benefits and costs. Many of our current

laws preclude that, as Dr. Davies and several others have noted.

We think that Congress should require that regulatory impact

analyses, and other supporting documents are available on the

Internet prior to the regulatory review process. That’s It’s a matter

of promoting transparency.

We believe each of these regulatory impact analyses should include a good executive summary, which should be standardized and

include things that you normally would think would be included in

an executive summary, but frequently aren’t in these analyses;

things like information on cost, benefits and whether the best estimate of quantifiable benefits exceeds costs.

We also believe that Congress should set up a separate Office of

Policy Analysis, much in the spirit of some of the same suggestions

that Dr. Davies and Dr. Norwood made about science, that is responsible for doing all policy analyses. You might be surprised to

know that most of the policy analyses are now overseen by divisions or departments within EPA, like Air and Water, that have an

60

interest in promoting regulation in that area. We think that a separate office would help minimize conflict of interest.

We also think that Congress should require EPA to adhere to

standard principles of economic analysis such as the OMB economic guidelines, and we have strong evidence that they don’t.

One or two more and I’ll stop. We think the Congress should

shift control of scientific peer review of key EPA studies away from

the Agency, again because of the problem of tunnel vision, to a different governmental body such as the NAS or perhaps an independent group within the Agency, if, in fact, it can be independent.

And, finally, as part of the decision to elevate EPA to Cabinet

status, we think you should consider seriously funding the independent regulatory oversight body within GAO that you authorized

under the Truth in Regulating Act.

In conclusion, we believe the decision to elevate EPA to Cabinet

status is a very important one. We think it should be accompanied

by careful consideration of ways in which you can improve both environmental policy and make the process of environmental policy

more transparent.

Mr. OTTER. Thank you, Dr. Hahn.

[The prepared statement of Dr. Hahn follows:]

61

62

63

64

65

66

67

68

69

70

71

72

Mr. OTTER. Dr. Mazurek.

Ms. MAZUREK. I’m the only non-doctor on the panel. Thank you

for giving me an opportunity to speak on a subject that has been

close to my heart since I staffed the first NAPA panel on EPA in

1994. My main message today is twofold. The Progressive Policy

Institute strongly supports the elevation of EPA to Cabinet level

status. But our view is that elevation alone is insufficient to reorient the Agency toward what we think are important new environmental challenges of the 21st century. And some Members of Congress have already designed a blueprint to do just that.

In November 1999, Representatives Dooley, Tauscher, Boehlert

and Greenwood introduced an early work in progress version of

what is referred to as the second generation Environmental Improvement Act, H.R. 3448. We use the term ‘‘second generation’’ to

distinguish this approach from the landmark laws and regulations

that were expanded by Congress in the sixties and seventies.

Unlike first generation approaches, second generation measures

place a premium on measuring success by changes in real environmental conditions, and they also stress improved environmental accountability, more public participation and systemwide change.

I would urge the committee to at least consider the principles

contained in 3448 as Cabinet elevation efforts move forward. And

let me tell you why. We think that EPA has done a commendable

job addressing some of the problems first generation laws were designed to address: smoke from smokestacks, effluent from wastewater treatment facilities.

But we are now faced with a new set of environmental challenges

that are very, very different from those first recognized in the sixties and seventies. Whereas the first generation of environmental

problems came from highly visible, easy to pinpoint sources, some

of today’s problems are largely invisible, at least here on the

ground, such as global warming. Others come from small, diffused,

hard-to-pinpoint sources that are difficult to identify, track, and

regulate: homes, cars, dry cleaners, farm fields, and parking lots.

To meet these new and emerging challenges to human health

and the environment in a manner that’s effective and efficient,

EPA must be provided with what we are referring to as a legal

space to design, implement, and evaluate innovative environmental

management practices. And the second generation bill, at least in

its discussion draft form, I think lays out kind of a road map to

do just that.

It does so in two ways. First, it’s designed to develop more timely, accurate, and more precise information on environmental conditions and environmental performance by industries and other regulated sources. As Terry and I found in our book, monitoring networks and data methods are woefully inadequate in this country,

not only to tell us about current environmental conditions, but future environmental challenges. The Agency under the Clinton Administration made some important strides in at least beginning to

improve how it manages information. And we believe that Representative Horn’s bill contains measures that would take those

gains even further.

But the second generation bill would provide incentives to industries and States not only to modernize how they report information,

73

but also how they monitor and measure environmental performance. Once EPA has better information systems in place to identify

new threats, it needs the legal means to test out new ways to address them while upholding the strong environmental standards

that were put into place by first generation laws.

The second generation bill would provide regulators with the

ability to pursue a broad array of experiments without having to

perform Houdini-like contortions on existing rules, as Project XL

demonstrated under the previous administration. So, greenhouse

gases, intersection of land use, and water quality are just a few examples of what a second generation approach might address.

And to summarize, we think that a Cabinet elevation law that

considers second generation principles would let government and

business systematically find out what incentives for better environmental performance actually work, before enshrining them in difficult-to-change first generation laws. Thanks.

[The prepared statement of Ms. Mazurek follows:]

74

75

76

77

78

79

Mr. OTTER. Thank you very much. I appreciate once again all of

you being here, and your opinions on the legislation that we have

under consideration. I guess I have some general questions for all

four of you, but I also have some specific questions. And let me just

say from my perspective, so you’ll know sort of where my questions

are coming from, in the West—and I’m from Idaho—in the West

there probably isn’t a Federal agency that is more hated or distrusted than the Environmental Protection Agency. And I say that,

having been the Lieutenant Governor of Idaho for 16 years and

watched as the agencies marched into Idaho and took over massive

areas of Idaho and usurped a lot of State authority and State responsibilities. But anyway, the feeling generally is that the EPA

has declared martial law on the environment in the United States.

And subsequently, not unlike most martial—and I happened to be

in the Luzon region of the Philippines when Ferdinand Marcos declared martial law in the Philippines, and it was not a pretty

sight—all manner of individual and civil rights and Constitutional

rights, private property, were set aside. And they were set aside by

those folks that came in with the full power of government to do

what they wanted to do, without rhyme or reason, suspending in

many cases the due process and suspending in many cases many

civil liberties.

Most of the civil liberties that we happen to talk about in terms

of the EPA are search and seizure, of reports that we hear from

all the time from industries; assumptions of guilt, rather than assumptions of innocence and then proving guilt. And so I believe

really that a lot of people in the West would be very, very encouraged about elevating the position of EPA Administrator to Cabinet

level, so long as they had the same responsibilities as, say, any of

the other agencies there to respect private property, to respect the

protections under the Bill of Rights and the Constitution.

So with that in mind, I guess I will start with Mr. Hahn. Mr.

Hahn, much of what you said really falls in line with under an ombudsman. And an ombudsman, when we finally got him into Idaho

in the Silver Valley—and the interesting thing there as I think you

probably know the history, the EPA came into the Silver Valley 17

years ago, saying they could clean it up in 3 years for $28 million.

That was $280 million ago, and they are 14 years over their time

budget. When we kept asking for reports and some kind of responsibility for what was going on, we met a brick wall. And we also

met Agency privilege.

And as you know, many of the Agency privileges are pretty extensive for the EPA. No other government agency that I know of,

including the FBI, has those kinds of privileges. Anyway, we finally

did get the attention and we got the ombudsman to come in. And

the ombudsman found a great deal of waste, a great deal of misinformation, a total lack of peer review. And then the EPA Administrator under the last administration de-funded the ombudsman and

fired him for the report.

So what kind of protection, if we go to the GAO or if we establish

peer review and establish an ombudsman with any kind of

strength, what kind of protection, other than a separate agency,

can you possibly offer somebody who would be a ‘‘whistle blower’’

on the EPA?

80

Dr. HAHN. I am not sure I am the best person to answer that

question. I am not a lawyer. I think the more general question you

raise about agency powers is a very, very important one. If the

Federal Government has a very prominent role, as it now does in

setting air standards and water standards, we at least ought to put

analytical checks on that power by not having the same group that

makes the regulations also do the analysis.

Mr. OTTER. You’re right. Our feeling is that King George III

never had it so good. He made the law, he decided who broke the

law, and decided what the punishment was.

Dr. Norwood, how about on independence of the oversight, how

do you feel about that?

Dr. NORWOOD. Well, I feel very strongly that there’s no way that

EPA can continue to work in this whole field without having better

approaches to finding what is successful, what is not, and accountability; accountability to the people of the country, to the government, and accountability to the States and localities. In the NAPA

reports, we went into considerable length about the way in which

EPA should work with States, localities, with business, and with

all the stakeholders. Very clearly, they need to do that. And we

have made a number of recommendations about that—the more

they do that, they still have even more of a responsibility to be accountable for environmental improvement. And so they need to be

able to have the scientific information as well as the statistical information to be able to judge whether something has been successful or not and whether this devolution is working.

The only way, it seems to me, that can be done is by restructuring completely the so-called information systems that the Agency

now has. I know that they have made some strides. I would not say

that they are very large strides. There is a need for a place within

EPA that is somewhat independent; that is, having a person heading it with a fixed term of office.

I was Commissioner of Labor and Statistics for a very long time.

I had a fixed term of office. We did things and said things and published things that the President didn’t like, sometimes the Secretary didn’t like. We tried to work with them, of course. But basically, we felt we had a scientific responsibility to the public to use

our expertise to explain things as objectively as we could. And I

think that EPA is lacking that.

I do think that many of the innovations that they have attempted—and we had something like 17 teams of experts, researchers, examining each of those. I think that many of those innovations probably were successful. But before undertaking a program,

one should determine in advance how you are going to determine

whether it was successful or unsuccessful and what kind of information you’re going to need in order to do that.

And this needs to be a cooperative effort. There’s no way the national government can develop all the data that is needed. A lot of

the data comes from business. A lot of the work has to be done by

business. A lot has to be done by States and localities. So it needs

to be a really cooperative effort. There are a lot of examples in the

Federal Government of that sort of effort, and I think it can be

done here.

Mr. OTTER. Dr. Davies.

81

Dr. DAVIES. I recognize, Mr. Chairman, that the kind of picture

of the Agency you are painting is widespread, especially in the

West. It sounds to me like the kinds of problems you are delineating are problems for the courts, and they are not going to be significantly remedied by most of the things that we have suggested

here on this panel or elsewhere.

Mr. OTTER. I didn’t understand. They are problems of the courts?

Dr. DAVIES. When you talk about civil liberties and property

rights, the best data in the world isn’t going to remedy that if it’s

a problem. That’s what we have courts in this country for, and

that’s where the remedy lies for those kinds of difficulties.

Having said that, I agree with both Dr. Hahn and Dr. Norwood

that an independent capacity to deal with policy analysis, with economic data, with environmental data, with science and peer review,

that all of those things could significantly improve the Agency’s

performance and effectiveness. And so, you know, I think those are

very valuable suggestions, that I am very sympathetic to them.

Mr. OTTER. I would only point out, getting back to the point that

Dr. Hahn made, that many of the rules and regulations were promulgated by the Environmental Protection Agency, and some of

those are relative to evidence offered in cases of whether or not a

person was polluting, whether or not there was a crime, a breaking

of a law committed.

I have become familiar personally with some cases, but as a representative of 650,000 people in a district that has 87,000 miles of

streambank, 119 municipal water systems or more, at least 119

sewer systems, 650,000 people that work on the watershed, there

isn’t almost any activity, whether it’s recreating or professional

working or private property ownership, that they can do without in

some way finding themselves coming in conflict with a rule or regulation that probably, in all good intentions, was promulgated for a

situation that may be east of the Mississippi and north of the

Mason-Dixon line.

Unfortunately, the application of that law is on 87,000 miles of

streambank, you know, and so what happens is we’ve lost confidence. We’ve lost confidence in an Agency which we hoped was

going to come and help us with some of our environmental problems. And they haven’t helped. In fact, they have been adversarial

and they’ve—as Jefferson said, harassed our people and eaten out

their substance. And that’s the problem that we’re having.

Dr. Hahn.

Dr. HAHN. I have come in contact with many folks, as you have,

who have suggested there are lots of regulations like that. And we

have to recognize that Congress at some level deserves a large part

of the blame for that through the laws that it passes that, to some

extent, empower the Agency to do these things. Now, the Agency

may have a different view of how to implement these laws than the

initial legislators, but Congress deserves the blame. So if we are

going to clean up the process at some point, we have to go back

to the organic statutes, and there I think Dr. Davies and Ms.

Mazurek have made some good suggestions, as others have.

You really have to make some fundamental decisions about how

you want to organize this Agency and what you view as its function. Should it be going after the top health-based environmental

82

priorities, or should it be going after everything, even if it presents,

arguably, no risk from a scientific point of view.

Mr. OTTER. I can tell you, Dr. Hahn, that our problems manifest

themselves from each generation. As I indicated earlier, in my 16

years as Lieutenant Governor, many other agencies also marched

into the State. OSHA was one of those. OSHA told us that environmentally, health wise, we had to remove all the asbestos from all

our schools. We took books and decided to go with 6 and 7-yearold textbooks where the covers were falling off. We let classrooms,

although safely, but really not very comfortable to be in, degenerate because we spent tens of millions of dollars removing asbestos. And once we got it all removed and finally sighed relief, then

they found one more building that had asbestos in it. And they

said, listen, it’s not necessary to remove it. All you got to do is

paint it over, you can seal it in. And we spent all that money.

Now we come on with the EPA in the Silver Valley of Idaho, and they say in 3 years and for $28 million, we can clean this place up.

Here we are, 17 years later, 10 times that much money, and they

found out when they were transporting all that dirt from the site

of the high levels of lead to the dump site, that they didn’t water

down the trucks. So now all the yards are contaminated. All the

tops of the buildings where the dust settled are contaminated.

What we did was we spread the contamination. And these people

were there to help.

We don’t need any more help like that. We have gone from 9,000

miners to none. We shut down 32 lumber mills in Idaho, most of

them for environmental considerations, because they said we don’t

want you cutting trees off the watershed. And this was a rule that

was made, I am sure, with good intentions. But what happened, we

shut down 32 lumber mills. What happened was then 880,000 acres

burnt up and all that silt and all that watershed is being washed

into the salmon recovery areas. So now we’ve got a bigger problem.

The first thing before we elevate, before we change, before we

come in with a whole new matrix of what we’re going to do, I think

we’ve got to get confidence back into the system that says we really

need this, we really need this help. And I think people are willing

to be convinced of that, but I don’t think elevating it to the President’s Cabinet level is going to do that.

Chairman Ose.

Mr. OSE [presiding]. Thank you, Mr. Vice Chairman. I appreciate

you standing in for me. I want to delve in a little bit. I regret I

missed the statements that you made, but I did read your testimony and written statements. And it seems to me that there’s a

consistent comment there that the simple elevation to Cabinet level

does not address the underlying problem. We heard this morning

from Mr. Boehlert, Mr. Horn, and Mr. Ehlers about how do we

move what’s called a clean bill forward.

I’d be curious how you would do each approach addressing the

systemic needs that we’ve identified. For instance, Dr. Davies, in

your testimony you had seven suggestions, and the others of you

had specific suggestions. How do we incorporate those in this process? Are we well advised to go forward with what’s a clean bill as,

say, Mr. Boehlert may have described it, or do we need to incorporate these other changes?

83

Dr. DAVIES. Well, I am very sympathetic, as I said in my testimony, I think when you were out of the room, to Mr. Boehlert’s

concern about having a clean bill and the political dangers of putting too many things into Cabinet elevation. There is also the question of committee jurisdiction, which is a mystery that I have long

since ceased to try and understand. But I think my hope would be

that at least most of the subjects that I suggested or that others

on the panel have suggested or that are in Mr. Horn’s bill, could

be fashioned in such a way that would generate broad support and

basically not be controversial.

There clearly are controversial things which I think would kill

the bill. And there’s also no question that the more you put in

there, the more vulnerable you are to attack from somebody or, you

know, some kind of concern. But I think as illustrated by this panel

and at least by my knowledge of where different groups are coming

from and where the two parties are coming from, there is very

broad support for most of the kinds of things that I mentioned in

my testimony and which, you know, other members of this panel

suggested.

Mr. OSE. Dr. Norwood, in particular with your background at

BLS and the like, it seems to me like the issue of metrics, how do

we measure progress is a fundamental issue here. How do we go

about focusing on that specifically?

Dr. NORWOOD. Well, I think that we have to recognize that there

are problems in the science. We don’t really have answers to everything. I think that’s part of the difficulty that you were talking

about before. So we need to have a scientific involvement in the development of the kind of information that is needed as support for

what EPA does. And I believe that can be done within the Agency

if there is a place to make it clear when the head of that particular

part of the Agency has certain scientific qualifications. That’s been

done in other agencies and it has worked quite well.

The other part is the measurement. You have to decide first

what you’re going to measure and you need to do that before you

go out and tell people all the great things you’re going to do. You

need to figure out if you’re going to start something new, whether

or not you’re going to measure it and how you’re going to measure

it, and then you need to develop the data.

Most importantly, EPA has got to be an Agency, as we’ve indicated in all three of the NAPA reports, which works closely with

all of the stakeholders—with the States, with the localities and

with business, and sometimes uses business techniques. There are

many of them that we’ve recommended be used. But the basic legislation that created EPA and under which it operates is somewhat

stultifying, because it is very difficult and almost impossible to

move across media. When you get to the organization of a regional

office, for example, which really has to deal with the localities, everything is coordinated there and yet the stovepipes within EPA,

which are partly the result of the legislation passed by Congress,

makes that extremely difficult.

Mr. OSE. Is the vehicle that allows—is this legislation the vehicle

that allows us to try to fix some of those?

Dr. NORWOOD. You know, you are much more skilled at legislation than I. My experience has been, however, that if these things

84

are not in some way indicated in the legislation, then they don’t

happen. And that’s what would worry me. I pointed out, for example, the problem of all the interactions of all of the agencies in the

Federal Government, and the problem of determining who is in

charge of the environment in the U.S. Government.

Mr. OSE. I can’t remember which of your testimonies, but they

had the mediums, and then the geographical areas, and everybody

was in charge, so nobody was in charge.

Dr. NORWOOD. And then we have a lot of departments in the

U.S. Government who have legitimate areas that they are interested in. But I think that there needs to be a lot of sifting out of

that. There need to be strong changes in the management of EPA

as well. That would not be a part of legislation, although if there

is to be a Bureau of Environmental Statistics, it has to be part of

the legislation; otherwise it’s not going to happen.

Mr. OSE. Let me ask all of the panelists, one of the suggestions,

particularly Mr. Ehlers’ bill, was to appoint a Deputy Assistant for

Science and Technology, I think is what he referred to. Would that

address the need of providing some bridge between the scientific

side and the regulatory side? Again, I don’t remember which one

of your testimonies said it, but one of the points was that the folks

who are at EPA largely are regulators and not scientists.

Dr. NORWOOD. Dr. Hahn is the one who discussed that. I just

wanted to make one comment, and that is that I have been doing

a great deal of work lately at the National Academy of Sciences as

well, and I think there is a need for outside people, but there does

have to be a scientific group within EPA as well, in my opinion.

Now I defer to someone who knows much more about this than I.

Dr. HAHN. In answer to your question about whether you should

send this bill up now, clean, or with other things, that’s obviously

your decision. I don’t see a great urgency to elevating EPA to Cabinet status. I could think of advantages and disadvantages, given

that I think the four of us at this table who come out of an academic background think there are many things broken in the area

of Federal environmental policy that fundamentally need fixing, as

they say.

Mr. OSE. Of a structural nature or otherwise?

Dr. HAHN. I don’t know what structure is, but as Dr. Norwood

pointed out and Dr. Davies pointed out, you’ve got many, many

statutes governing this Agency. You’ve got a real problem now in

terms of the way people view the authority of EPA.

Congressman Otter made a point about his district with respect

to asbestos removal. I can tell you that’s not an isolated example

from my experience. As I pointed out earlier—and Justice Breyer

pointed out in his book EPA suffers from ‘‘tunnel vision.’’ It only

looks at the environment. It doesn’t worry about those 800 workers

who were displaced and sometimes it doesn’t even think about

whether there is a better way to achieve the same or better environmental outcome at lower costs.

We need to rectify that by, one, you need to think about what

powers you want to give to the Agency and how you want to give

the Agency those powers, in one statute or several statutes. And

then, what kind of information it uses to make decisions. I think

Dr. Norwood pointed out that there are real problems with the naVerDate 11-MAY-2000 10:31 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6633 C:\DOCS\82666.TXT HGOVREF1 PsN: HGOVREF1
85

ture of the information base that’s developed now. The Agency has

an intrinsic bias. We have different suggestions for how to address

that bias.

Mr. OSE. I don’t want to exclude our fourth panelist here.

Ms. MAZUREK. Well, with respect to the point on achieving the

same environmental outcome at lower costs, which was alluded to,

I think in Congressman Otter’s point initially, the 1994 NAPA report and study after study after study during the 1990’s, including

some of the statements that were made by the prior administration, was that if EPA can find a cleaner, cheaper, smarter way, it

should be given the authority to do so. And it tried to do that in

number of experiments, including the common sense initiative,

Project XL, place-based ecosystem management, and all of those

initiatives faltered, paradoxically perhaps, because EPA didn’t have

the authority to give flexibilities to companies, States and localities

who really could deliver superior environmental performance.

That’s why my predecessor, Debra Knopman, working with a bipartisan group in Congress, put together the second generation discussion draft, because it would enable those kinds of measures; and

also recognizing that the cornerstone, the backbone, to innovation

is information that tells us whether or not these results are actually superior to what would have been achieved in the absence of

the experimental programs.

And again, a number of these initiatives during the nineties faltered because, A, as Dr. Norwood pointed out, we didn’t put the

program evaluation measures in place before those programs were

actually launched; and B, there was a lack of will and ability and

resources, just financial resources on the part of the Agency, to actually verify that these programs were delivering superior environmental results.

Mr. OSE. I need to give my vice chairman some time. I have some

questions that I am going to go through here in the second round,

and I’m going to ask each of you to provide input on them. But,

Mr. Otter for 10 minutes.

Mr. OTTER. Thank you, Mr. Chairman. I am not going to take all

that time, but I do just have a couple of questions. I have heard

the lack of resources part of the problems as you have just said,

Ms. Mazurek. And I wonder if it’s the lack of resources, or do we

need to redirect resources within the Agency, and maybe we need

a third party, as has been suggested by other members of the

panel, because I don’t know if it was a scientific or a statistically

proven report or not, but one of the reports that we received in

Idaho was that 12 cents out of every dollar being spent in the EPA

was actually being spent on something other than cleaning up the

environment; that for the bounce for their buck that the taxpayers

thought they should be getting, if 88 cents is being spent on administration or has been the case in court, then rather than directing

new resources, maybe this restructuring that my chairman mentioned, Dr. Hahn, has to do with focusing the EPA, as Dr. Norwood

suggested, on the greenhouse gases, on the nonsource pollution.

And I apologize, I wrote them down, They are in my notes now.

But those focuses then invite the locales in. They invite the State

agencies.

86

Quite frankly, I have to tell you that we have a DEQ in Idaho,

Department of Environmental Quality, and I think every one of

those people in that Agency care a hell of a lot more about the environment in Idaho than any EPA Administrator that comes whipping through from some other State or from some other locale.

Quite frankly, I really believe that. Or any group of administrators

back here that manifest their desires in rules and regulations that

they ship out for us to implement. I think my Governor probably

cares more about the environment in the State of Idaho than, quite

frankly, the President of the United States. But we have taken

them out of the equation.

Dr. NORWOOD. I think it’s important to recognize that there have

been some initiatives at EPA to put them back. And the latest

Academy report called ‘‘Environment.gov’’ does review a whole series of them. The important thing is that there are problems in the

legislation which require certain enforcement activities. There are

difficulties, as I’ve said, across media. So Congress bears some of

the responsibility for this, I think.

I think that what we’re seeing in government generally is a devolution to State and local areas, but there has to be accountability.

And so we need to have both, really. And I think we can.

I have had some experience at the very local level, in a small

town where we have a home on a big lake, and we’ve been very

active, my husband and I, trying to keep that water clean. I can

understand the problems that the town, a very small town, about

800 people, has with the regulation both at the State and at the

national level. But EPA has made a number of attempts to change

that environment. It needs to do more. And we have made a number of recommendations.

Mr. OTTER. Just one more, perhaps a statement, but I would invite anybody to respond to this. One of the things that I really see

lacking in our national environmental policy is a lack of accountability by government agencies themselves. You know, we hear stories all the time about developers that either were fined $250,000

or they go to jail because they didn’t follow certain environmental

regulations, Army Corps of Engineers, wetlands laws or those

kinds of things; polluters that dumped pollution into rivers, you

know. And the companies have to now go back years later and

make amends for those.

Yet, when I was in the full committee the other day, I asked the

Army Corps of Engineers and I asked the EPA and said, ‘‘We

caught you dumping 200,000 gallons a day of slop into the Potomac

River.’’ We caught the Army Corps of Engineers—the EPA caught

them—and I said, ‘‘Who went to jail?’’ Well, we come to find out

that government agencies are exempt. The very teeth that we needed into the law to make the private property owner and the industry and the States obey the law, we absence ourselves from ‘‘accountability,’’ I think was your word, Dr. Norwood.

And so before I would go to any kind of a restructuring, certainly

I want the general of the Army Corps of Engineers to go to jail,

just like I want the CEO of some corporation to go to jail, or the

Governor, if they violate some environmental law. Then I think we

truly do have accountability.

Dr. Hahn, I invite comment on that.

87

Dr. HAHN. There’s a problem there. And I’m happy with equal

treatment of the Government and the private sector. I like that

idea. The problem is: if you own any establishment that is producing anything, you are probably violating some environmental law.

It may be a very gray area. I have been a consultant to several

companies in which sometimes they simply can’t figure out whether they are in complianced.

So I think it’s a real good idea to think about limiting the powers

of EPA and having the agency focus on the most important issues.

You mentioned some that some of the other panelists raised and

recognize that this isn’t 1970. We are in a new century now, and

the States have changed dramatically in their capability for addressing environmental problems in a creative and intelligent way.

And a lot of that should be recognized in any sort of statutory

changes you make.

Mr. OTTER. Would you agree though, Dr. Hahn, that any law

that we make offering penalty or persecution or whatever for violators should also be applied to the government agencies?

Dr. HAHN. I think so.

Mr. OSE. Is pollution any worse, no matter whose hand it comes

from?

Dr. HAHN. That’s correct.

Dr. DAVIES. You have to deal with the congressional language on

sovereign immunity.

Dr. NORWOOD. But there is a more important issue, and that is

that if Congress passes legislation requiring certain kinds of enforcement, then the problem may be the legislation. In EPA’s case,

there are some problems with its legislation, and so it cannot do

some of the things that you and I and other people would like it

to do. So in a way, Congress also has to be held accountable, if you

excuse my saying that.

Mr. OTTER. Send Mr. Boehlert to jail.

Mr. OSE. No, we won’t. Dr. Davies.

Dr. DAVIES. There are fundamental problems with the statutes

that EPA administers. And I think some of them are spelled out

in the book that Jan Mazurek and I wrote. Janet Norwood’s point

about the stovepipe structure and the fragmentation of the programs, that is the most fundamental problem in my view. I have

given to committee staff something that I wrote sort out of desperation, because everybody said you couldn’t pull these statutory authorities together. And out of desperation, I tried to do it. Whether

I succeeded or not is another question, but you can take a look and

see. In any case, I don’t think you can deal with Cabinet legislation. I mean, trying to integrate the statutes that the Agency administers raises every single question of environmental policy that

has ever been raised. And it is a tremendously complicated task

and it’s not something that could be undertaken in this context,

frankly. It’s too bad, but I don’t think it can.

I think you can take an initial step, as I suggested, by setting

up some kind of commission or select joint committee or some body

to start that process rolling, because it is badly needed, but you

couldn’t do it within the legislation.

If I can just make one other quick point in response to Mr. Otter’s comments, without denying anything you said, it is hard to

88

find Federal programs that are more decentralized to the States

than the programs that EPA administers. The two key functions

are permitting and enforcement. Something on the order of 80 to

90 percent of the permitting is done by State agencies, and something on the order of 90 to 95 percent of the enforcement is done

by State agencies. So it is tremendously centralized now and I

think that has just to be kept in mind.

Mr. OTTER. Could I have a followup on that, Mr. Chairman? To

Mr. Davies, can the EPA override any of those enforcement or permit agreements?

Dr. DAVIES. Yes.

Mr. OTTER. Can they override every one of them?

Dr. DAVIES. Well, no. There are some where it can and some

where it can’t; but typically it can, yes. But it is not a frequent occurrence.

Mr. OTTER. As long as you’re doing it our way, then you’re safe?

Dr. DAVIES. Yeah.

Mr. OSE. I want to go back to some specific questions I have for

all of you. There’s not going to be any problem here. You have all

the time you want.

Dr. Davies, I followed your discussion about how EPA was originally crafted. It was a reorganization rather than the manner in

which Cabinet departments are typically created. So I am probably

going to followup with some questions to you about that.

I think Dr. Norwood has reemphasized that also about the structural nature of what created EPA that leads to many of our challenges today. I don’t know whether or not Mr. Boehlert’s bill or Mr.

Horn’s bill or Mr. Ehlers’ bill becomes the vehicle we use. I am just

not at that point yet. But I do want to get a clear understanding

of that if we move forward with this legislation, what aspects of

science need to be strengthened at the Agency? For instance, do we

need to specifically address peer review issues of decisions? Do we

need more basic research? I think, Dr. Norwood, you talked about

targeted research. Do we need more of that? Does anybody have

any feedback on that?

Dr. NORWOOD. Well, I believe that the legislation that creates

EPA as a Cabinet agency probably has to say that it will have certain officials in it, particularly if they are Presidential appointments; that usually is in law. And I think that an Office of Scientific Research and a Bureau of Environmental Statistics ought to

be a part of that.

Mr. OSE. So you would like have the Cabinet Secretary, and then

underneath you would have what effectively are deputy secretaries,

but there would be the Office of Research, office of X, office of Y,

office of Z kind of thing?

Dr. NORWOOD. I’m not sure exactly what the structure would be,

but in the statistics field, which I’m much more familiar with, you

should have—and in several cases, we do have in several agencies,

a Presidentially appointed head of the bureau or whatever you

want to call it, of statistics. And you have a fixed term of office for

that individual, which means that he or she reports directly to the

Secretary, doesn’t have to go through a lot of other people and has

the independence that comes with having a fixed term of office. For

the data system, I think that’s terribly important.

89

Mr. OSE. Dr. Hahn.

Dr. HAHN. I basically agree with Dr. Norwood that’s a really important first step. But until you include the policy analysis in a

way that it’s independent from the development of regulations,

you’re not going to get the kind of unbiased information and accountability you need.

That’s why I argued in my testimony that we ought to have only

one Office of Policy Analysis developing policy, as opposed to having it analyzed by parts of the Agency that are actually making the

regulations.

Dr. DAVIES. Just on a couple of points. I mean, science in EPA

is a very complicated topic. And it’s not that they don’t do science.

Probably something in the order of 20 to 30 percent of the personnel in EPA are scientists of some kind. And a fair number of those

people are doing science.

Peer review to me—and here, I guess, Dr. Hahn, I disagree a little bit; I don’t think that’s a major problem. The Science Advisory

Board of EPA is a pretty sophisticated, elaborate operation. It is a

much better outside science review operation than most other agencies have, which is not to say it couldn’t be improved. And they

have recently run into some problems in terms of conflict-of-interest questions, and that is certainly an area in which improvement

is warranted. But to me, in the hierarchy of problems, peer review

of EPA science is not, frankly, high on the list.

As Dr. Norwood said, part of the problem is just that a lot of the

science isn’t there. You need to develop the basic science. But part

of the problem is also making the EPA science program more rational. As I indicated in my written testimony, the problem here is

that the Office of Research and Development, which in theory is

the research arm of the Agency, really only does about half the research, and nobody knows for sure what the percentage is. But a

significant part of the research is done under the auspices of the

individual program offices, Air, Water, Hazardous Waste and so

forth. Those research efforts of the program offices are not coordinated with the research done in EPA labs and by the Office of Research and Development. So you’ve got a fundamental internal

problem of harnessing the resources that are there now to better

serve the needs.

Mr. OSE. You’re suggesting that there is some redundancy perhaps?

Dr. DAVIES. I don’t know whether it’s redundancy. Yeah, there

probably is some, but redundancy is less of a problem than the inability to focus on what the most important problems are.

Mr. OSE. I think your words were ‘‘blinders’’ and ‘‘tunnel vision.’’

Dr. DAVIES. No way of mobilizing the resources that are there to

focus on the things that are important.

Ms. MAZUREK. That’s not a problem only with EPA. I mean to

illustrate, California EPA had this recent problem with something

that we know as MTBE. And what happened there was that the

air office did the risk assessment when they considered it as an additive in fuel, but the air office had no way of talking to the water

office and so the risk assessment was never actually undertaken to

determine what would happen if this leaked from gasoline storage

tanks into the groundwater. And now we have a big cleanup mess

90

on our hands out in California as a result of this. But again, this

gets back to the media-specific fragmented nature of the statutes,

more than a question of redundancy.

Dr. HAHN. Can I offer a personal anecdote as one who was on

the White House drafting team for the Clean Air Act Amendments

of 1990? I think there is a big problem in getting independent

science amd tjere os a big problem of getting independent science

heard. When we were developing the Clean Air Act, there was a

section of the Clean Air Act that dealt with air toxics legislation.

Now, when you say the words ‘‘air toxics,’’ everyone gets worried

because no one wants to have arsenic in their drinking water, for

example. But all of us are going to have some arsenic in our drinking water. We can’t remove it all.

The problem was that the scientists that I spoke with at EPA in

private conversation, when I called them from the Council of Economic Advisors, told me that air toxics was a very, very low risk

problem. They were not allowed to say that publicly. They had

analyses suggesting that. They were not allowed to say that publicly or their jobs would have been on the line.

This was a question you raised earlier with respect to the ombudsman. That information should have entered into the public

policy discussion before Congress developed the air toxics part of

the Clean Air Act, and it wasn’t.

Mr. OSE. Dr. Norwood.

Dr. NORWOOD. I do think there is need for an independent scientific group. I believe it should be inside EPA because otherwise

I don’t think it would really get to the people that it needs to. But

there does need to be some kind of protection of that group, of its

scientific capabilities and its objectivity.

I should say that part of the problem is that we talk about risk

assessment, we talk about all the economic analyses that we should

make, with the assumption that all the data are there and that

every model works perfectly. I spent some time recently on the

board of directors of a very large bank, chairing the board’s committee on risk assessment. And I’ll tell you that I learned a lot

about the practical world and how it is important to have a scientific approach, but that it doesn’t come quite so easily, so we

have to work with that.

Mr. OSE. That leads directly to the next subject I want to discuss, and that has to do with the stovepipe nature of the manner

in which the Agency currently works. You’ve all recognized sometimes these issues cut across a number of stovepipes. If we’re looking at this in an ideal world, so to speak, and we are considering

legislation, what sort of a functional structure should we have to

deal with these cross-cutting environmental issues? Clearly an

independent scientific body to review the information is useful.

I think, Dr. Hahn, you suggested separating scientific review

from regulatory action. Are there other such suggestions?

Dr. DAVIES. You could organize the Agency totally along functional lines and it would be a much better, more rational organization than currently exists. The difficulty comes from the disconnect

between the way the Agency is organized in terms of offices and

the statutory responsibilities it has; if that disconnect becomes too

great, then nothing is going to happen and then everything will

91

just grind to a halt, because when you say whose responsibility is

it to carry out the Clean Air Act, you won’t be able to find where

it is.

Mr. OSE. So your suggestion in that regard is go back to the legislative underpinnings and fix them?

Dr. DAVIES. You have to at least make some progress fixing the

statutes before you can change the organization of the Agency.

Mr. OSE. When we fix the statutes, what do we need to do? I

mean, that’s the question. Do we need to define the structure or

need to be somewhat more generic and allow the folks who do the

executive branch to define the structure?

Dr. DAVIES. I mean, if I understand your question, what in my

mind the most basic thing you have to do is stop dealing with environmental problems in a fragmented fashion, which is what the

statutes now do. I mean, most of the major problems we have

aren’t just their problems. They aren’t just water problems. They

aren’t just hazardous waste dump problems. They cut across a lot

of different lines. The environment is one single whole. On things

like climate change, on things like acid rain, and on things like

stratospheric ozone depletion, on nonpoint sources, almost any

major current problem that you name, the way the statutes are

written is inadequate to deal with the problem because it doesn’t

recognize the interrelationships. And so that’s what you have to do.

Mr. OSE. Just following up on that, if we had a question dealing

with water, under the Clean Water Act, we’d treat it a certain way

now. And arguably, we wouldn’t know who was in charge. How do

we change that so that we know somebody is in charge? We say

that you are now the Under Secretary for Water?

Dr. DAVIES. You could do that. That is one option, just to go all

the way in that direction. That would not be my preferred option.

Mr. OSE. What would be your preferred option?

Dr. DAVIES. You have 200 pages in response to that.

Mr. OSE. Briefly.

Dr. DAVIES. Briefly, you would have to both do the statutes and

the internal organization of EPA on a functional basis. So you

would have somebody in charge of standards setting. You would

have somebody in charge of enforcement. You would have somebody in charge of planning, somebody in charge of policy and economic analysis and so on. That’s how you would organize things.

So you would pinpoint responsibility by the nature of the function

rather than by the segment or the physical environment or the

focus of where the pollution is and so on.

Mr. OSE. Do the rest of the panelists concur?

Dr. NORWOOD. I am not sure that I do completely, but I don’t

know as much about this as Terry does. But what I would like to

say is that I have a strong belief, having been in government a long

time, that organizational structure can be very important, but that

it doesn’t necessarily get you where you want to go; because it’s

really the informal structure within an agency that counts a great

deal.

However, having said that, the problem with the EPA legislation

is that it prevents the Agency from thinking broadly and from

using its resources broadly. And yet, the States don’t think that

separately. They don’t have those stovepipes. So when you get to

92

a regional office, it’s ridiculous to organize a regional office along

separate, media lines because they have to deal with people who

are dealing across media lines in the States or localities. You don’t

have the luxury of having individual offices there.

That is just one kind of thing. There is the question of how

they’re doing work with some of the innovations that they attempted. We dealt with that in this last report, the restrictions on

enforcement that were either in the law or interpreted as being in

the law, prevented them from doing many of the things which we,

at least at the Academy, felt they should be doing to improve relations and improve the environment.

Mr. OSE. Dr. Hahn. Ms. Mazurek.

Ms. MAZUREK. If I may just sort of followup on Dr. Norwood’s

point. Under the innovations programs that she mentioned, they

found that the enforcement provisions, or just the statutes themselves, were the tripping-up point. So while ultimately I share Terry’s vision of where the Agency needs to go, there are some interim

measures, if one prefers the Lynn Bloom muddling-through kind of

approach, and that’s what the second generation proposal was designed to do, to provide legal space to do cross-media approaches

and to test out innovative experiments, all the while simultaneously collecting information that starts to tell you what these

new emerging priorities are, and then giving the Agency the authority to experiment with different ways structurally of addressing

them.

Dr. HAHN. Well, again thinking outside the box, right now EPA

really isn’t responsible in any sort of meaningful way for showing

that it has enhanced the environment of either—— Mr. OSE. Accountable or responsible?

Dr. HAHN. Accountable—I’m sorry, good point—for showing that

its actions have actually improved the environment. One way of

writing the statute, and I haven’t gone through the 200 page exercise that Terry has done, is to say OK fellows, we think you should

be thinking about reducing risks in a way that saves lives or life

years of Americans or citizens of the world. And we are willing to

give you access to private sector resources on the order of X, because effectively when EPA regulates, it takes money out of consumers’ pockets. And we want to see in 5 years’ or 10 years’ time

that you have actually made a significant difference based on an

independent policy review.

I don’t think that is going to happen, but that is one way of getting accountability. It is just some food for thought. I think it could

happen in a limited area as a pilot project.

Dr. DAVIES. If I could make one very quick point. I mean, that’s

absolutely necessary. We are so far away from that, that as Jan

and I point out in the book, you can’t tell whether water quality

in this country has gotten better or worse over the last several decades because the data isn’t good enough to answer that question.

Mr. OSE. Mr. Otter. OK, I will continue then. Dr. Hahn, I want

to go back to your comments, and Dr. Davies—in fact, everybody

here. There is no base line is what you’re saying. And there is no

attempt to keep the baseline or the updates current for analytical

purposes. Does that go back to the underlying statute, the reorganization of it, or is that just practice, managerial practice. I don’t

93

have a problem pointing the finger at us if we’re the root cause.

Is it that we’re not watching? What do we need to do better, or

what can we do organizationally to establish the performance

measures and then make them work?

Dr. DAVIES. Three things, I think. Better data, better analysis,

and Congress asking the questions that will force the Agency to

take those things seriously.

Dr. Norwood is talking mostly about data on environmental conditions, and I think that is essential. Dr. Hahn is talking mostly

about economic analysis and economic information, and that’s necessary, too. So we need to be a little careful when we are talking

about different kinds of information, but they all go to the question

of holding the Agency accountable and having some kind of defensible, scientifically valid evidence, independently arrived at to some

degree, as to whether the job is getting done.

Dr. NORWOOD. And it’s important to recognize that a lot of the

information has got to be done cooperatively with States, localities,

and with the business community. There’s no way that the Federal

Government can create all of that information. It needs to get the

information in large part from a lot of the players in the system.

And that means that it has to be certain that there is a consistent

system of definitions, the way in which the data are collected, the

quality of the data. And there’s none of that as of now in this system.

I should say that there are a number of models in the Federal

Government system of very good cooperative Federal, State, and

even local data cooperative systems. I think it can be done.

Mr. OSE. Where are those models? For instance, where’s the template that we can at least go and examine?

Dr. NORWOOD. Well, certainly the place that I am most familiar

with, the Bureau of Labor Statistics, has had a Federal-State cooperative program in developing information on employment hours

and earnings with the States since 1917. And it means that they

work together cooperatively. The Federal Government pays some

moneys to the States because the Federal Government needs these

data. The States supply money because they want to do other

things. The Federal Government helps to keep these units in the

States separate and independent from politics.

I used to spend a lot of time talking to Governors about the importance of that when I was there. I think there are examples, different kinds of examples, in agriculture and in education and other

places. The important point is that you can’t put too big a burden

on the respondents, on the people who have the data. You can’t

have all different jurisdictions asking them for the same information. And it has to be consistent across all of these areas.

I’ve done a little book on the Federal statistical system and its

need for reorganization, which I have yet succeeded in getting

passed. And one of the chapters in it is on Federal-State cooperation, which I think is tremendously important. The Feds have a lot

to learn in that, however, because it has to be cooperative and it

has to meet the needs of both those at lower levels of government

and business and the Federal Government. It can’t just be a oneway street.

94

Mr. OSE. Dr. Hahn, Ms. Mazurek, any feedback? I want to thank

the panelists for coming today. This has been enlightening, to say

the least. We are going to consider what type of legislation to put

forward. And obviously, we have—we have the full range, if you

will. The record from this hearing will be left open for 2 weeks. We

may have some followup questions that we would like to send each

of you in writing. We would appreciate your cooperation in the response.

I want to thank you all for coming today. Like I said, this has

been enlightening and I do appreciate it. I may end up calling you

independently and just talking. So if you will grant me that permission, I may very well followup. We stand adjourned.

[Whereupon, at 11:45 a.m., the subcommittee was adjourned.]

(95)

EPA CABINET ELEVATION—FEDERAL AND

STATE AGENCY VIEWS

THURSDAY, MARCH 21, 2002

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

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

2154, Rayburn House Office Building, Hon. Doug Ose (chairman of

the subcommittee) presiding.

Present: Representatives Ose, Otter, LaTourette, Mink and

Kucinich.

Staff present: Dan Skopec, staff director; Barbara Kahlow, deputy staff director; Jonathan Tolman, professional staff member; Allison Freeman, clerk; Yier Shi, press secretary; Elizabeth

Mundinger and Alexandra Teitz, minority counsels; and Jean Gosa,

minority assistant clerk.

Mr. OSE. Good morning. Welcome to our hearing. I want to recognize a quorum with the attendance of Mr. LaTourette.

The issue of elevating the Environmental Protection Agency to

cabinet level status has been around since the agency was created

in 1970. In the years since its inception, Congress has passed numerous environmental statutes expanding the jurisdiction of the

EPA. As its jurisdiction has expanded, the agency has grown as

well. Today more than 18,000 employees work at EPA and it has

an annual budget of $71⁄2 billion. It is important to note that elevating EPA to a cabinet level department will not in and of itself

change the agency’s size, jurisdiction or effectiveness. The act of

creating a new cabinet level department is largely symbolic, but

how and why Congress elevates the EPA to a cabinet level department may fundamentally affect not only how the EPA operates, but

also perceptions of the agency and the importance of environmental

issues.

Two bills have been referred to this subcommittee to elevate EPA

to a cabinet level department, H.R. 2438, introduced by Representative Sherry Boehlert of New York, and H.R. 2694, introduced by

Representative Stephen Horn of California. The two bills take significantly different approaches. One offers no reforms to the agency, and the other offers a multitude of reforms to the agency.

The principal question facing our subcommittee at this hearing

is what, if any, reform should Congress explore in the process of

elevating EPA to a cabinet level department.

96

When EPA was created in 1970, this country faced widespread

and daunting environmental challenges. We have made great

progress in the cleanup of large industrial pollution that plagued

our Nation 30 years ago. Today, however, we face new environmental challenges, more complex and intractable environmental

concerns.

Last week the USGS, U.S. Geological Survey, released a report

on various chemicals in our rivers and streams, chemicals like caffeine, which come not from some giant caffeine manufacturing

plant but from the coffee, tea and soda that we drink every day.

Are tiny amounts of chemicals such as caffeine in our waterway a

problem? How big of a problem is this compared to our other environmental problems? What, if any, resources should we devote to

solving it?

These are the types of questions that will face EPA in the coming

decades. I would point out that it was the Geological Survey and

not EPA that produced this study, which in itself raises questions

about the role of EPA in dealing with the environmental problems

we face as a Nation.

At our first hearing in September, we heard from the sponsors

of the elevation bills. In addition, a number of policymakers from

the academic community testified about the need for reform at

EPA. Having heard from people who view the agency from arm’s

length, today we want to hear from those dealing with the agency

on a more regular basis.

Our witnesses today bring with them a wealth of knowledge

about EPA and environmental policy. EPA’s Inspector General and

the General Accounting Office have spent countless hours reviewing, analyzing and auditing EPA’s programs.

Hopefully, their expertise will shed some light on the organizational and management challenges that EPA faces and what sorts

of changes need to occur at EPA to ensure that it can achieve its

mission.

After our first hearing, several Members of Congress wrote me

expressing concern about problems with EPA, citing numerous

GAO reports and urging me to address these issues. I have read

many of those reports. I am pleased that we could have the GAO

here today to focus on those subjects.

The other dramatic change that has occurred since EPA’s inception is the emergence of State agencies in protecting the environment. Most of our major environmental laws are delegated in some

fashion to the States. In addition, States spend most of the public

money committed to environmental protection. For instance, in fiscal year 2000, the States spent just over $131⁄2 billion on environmental and natural resource protection, which is about double the

entire budget of the EPA.

State agencies have emerged as not only the workhorses of environmental protection but also innovative leaders. States are on the

cutting edge of solving the complex environmental problems that

we face today. Unfortunately, and we’ll hear more about this today,

their innovative ideas often run into obstacles, some of which originate at EPA.

97

Hopefully, today’s hearing will shed some light on the experience

that State agencies have had in attempting to overcome these obstacles and what lessons Congress should take from those experiences as we consider elevating EPA.

[The prepared statement of Hon. Doug Ose follows:]

98

99

100

Mr. OSE. Joining us today on our first panel are the Honorable

Nikki Tinsley, who is the Inspector General for the EPA. Good

morning. Also John Stephenson, who is the Director of Natural Resources and the Environment for the U.S. General Accounting Office. Good morning.

Now, in this committee we typically swear in our witnesses, and

we’re going to conform to that norm this morning. So if you’d both

rise.

And we have others who might provide counsel.

[Witnesses sworn.]

Mr. OSE. Let the record show that all the witnesses answered in

the affirmative. Now our typical approach here, as you may well

know, is that we recognize the witnesses for 5 minutes each to

summarize their testimony, which we have received and we will

enter into the record and I have read, and I even have a markedup copy to ask questions from. So Ms. Tinsley, you are first for 5

minutes.

STATEMENTS OF NIKKI TINSLEY, INSPECTOR GENERAL, U.S.

ENVIRONMENTAL PROTECTION AGENCY; AND JOHN STEPHENSON, DIRECTOR, NATURAL RESOURCES AND ENVIRONMENT, GENERAL ACCOUNTING OFFICE

Ms. TINSLEY. Well, good morning. I’m happy to be here to testify

and share information on EPA’s top 10 management challenges.

Not surprisingly, these challenges overlap areas in the President’s

management agenda. I’m going to highlight today the challenges

that are particularly important to EPA working with States.

One challenge that EPA faces is linking its environmental and

human health mission with its corporate management responsibilities. This challenge relates to three of the President’s management

agenda items, linking budget and performance, improved financial

management, and competitive outsourcing.

EPA can be viewed as a business whose primary product is delivering improved environmental and human health protection to the

public, its investors, at a reasonable cost. For EPA to show its investors that it is a company worthy of investing in, it needs to address regional, State, and local priorities as it develops environmental and human health goals and defines how it will measure

and report its accomplishments.

Further, the investors and Agency managers need to know the

cost of activities and resulting environmental and human health

protections in order to judge EPA’s overall performance. Without

detailed information on what is working and at what cost, Agency

management cannot make informed decisions on how to best deploy

its resources to achieve results and the investors cannot assess the

success of their investment.

EPA is the leader in its progress in integrating its budget and

accounting structure with the Government Performance and Results Act architecture and accounting for costs by goal and objective. But EPA needs to improve its cost accounting system and

processes so Agency managers have useful, consistent, timely, and

reliable information on the cost of carrying out programs.

The Agency has output data on activities, but it has little data

to measure environmental outcomes and results.

101

Another challenge that EPA faces relates to information resources management, which is closely linked to e-government. In

many respects, sound IRM practices establish the foundation for

enabling e-government. Our audits of EPA programs often have a

component relating to environmental data information systems,

and we frequently find deficiencies within these systems. Today

most States have information systems based upon State needs to

support their environmental programs. EPA and States often apply

different definitions within their information systems, and sometimes collect and input different kinds of data. As a result, States

and EPA report inconsistent data, incomplete data, or obsolete

data.

Recent audit work on EPA’s systems identified problems in

EPA’s enforcement, Superfund and water programs, and we illustrated problems in inconsistent, incomplete, and obsolete data. EPA

is developing an information exchange network that will support

efforts for States and EPA to share information, and EPA is working with the Environmental Council of States to identify and develop data standards that will ensure consistency in data reporting.

Unfortunately, right now the States get to decide whether or not

they want to adopt these standards. If the exchange network is to

work effectively, applying the data standards cannot be voluntary.

EPA is also working to produce its first State of the Environment

Report to be issued in the fall of this year. The purpose of this environmental report card is to inform the public on EPA’s progress

in protecting the environment and human health. This initiative

will actually give the Agency its next opportunity to honestly evaluate its data collection processes, quality, and costs.

A third management challenge relates to the President’s management agenda item on human capital management. EPA recognizes

that one of its biggest challenges over the next several years is the

creation and implementation of a work force planning strategy that

addresses skill gaps in its current work force, particularly competencies related to leadership, information management, science,

and technical skills.

These skills gaps will intensify over the next 5 years as about

half of EPA’s scientific and senior managers are eligible to retire.

These gaps can be addressed in part through employee development. The need for training has been highlighted in a number of

our audit reports and in reviews by GAO and the National Academy of Public Administration.

Our work shows that a lack of training for EPA employees has

hindered the Agency’s ability to work effectively with States, and

that EPA needed to better train managers to oversee assistance

programs and to lead in a results and accountability oriented culture.

Assistance agreements constitute approximately half of EPA’s

budget and are the primary vehicles through which EPA delivers

environmental and human health protection. It is important that

EPA and the public receive what the Agency has paid for. Our recent audit work of EPA’s assistance agreements disclosed that

some recipients did not have adequate financial and interim controls to ensure Federal funds were properly managed. As a result,

EPA has limited assurance that grant funds are used in accordance

102

with work plans and met negotiated environmental targets. Last

May we reported that the Agency did not have a policy for competitively awarding discretionary assistance funds totaling over $1.3

billion annually. EPA depends heavily on States to fund and implement national programs as well as most environmental data. Our

work shows problems with EPA and States working together to accomplish environmental goals.

Mr. OSE. Ms. Tinsley, if I might, we have this entire statement

for the record.

Ms. TINSLEY. OK.

Mr. OSE. If you could summarize here briefly. I know we’ve got

another page and a half on your testimony.

Ms. TINSLEY. How about if I just jump to the part on elevation?

Mr. OSE. That would be fine.

Ms. TINSLEY. Which is—I was actually getting there. In addition

to having to work with State partners, EPA also relies on a host

of other Federal departments and agencies to accomplish its mission. Right now EPA’s budget represents only 20 percent of the Nation’s environmental and natural resource programs. Our office has

been working with other Federal IGs to develop an inventory of

Federal environmental programs and we have identified more than

300 environmentally related programs managed by other Federal

agencies. Because of that, the broad breadth of these programs, we

think it is important that EPA sit at the table as a full partner

with the other Federal agencies, and so we support the elevation.

[The prepared statement of Ms. Tinsley follows:]

103

104

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

120

121

122

123

124

125

Mr. OSE. Thank you. We appreciate your summary.

Mr. Stephenson for 5 minutes, if you would, please.

Mr. STEPHENSON. Thank you. Good morning, Mr. Chairman. I

am pleased to be here today to discuss GAO’s views on providing

EPA cabinet level status and to also point out some of the major

management challenges that the Agency must address regardless

of whether it becomes a cabinet level department or not. Some of

these views are going to sound very similar to what you just heard

from Ms. Tinsley, so I will be very brief.

While ultimately it is up to the Congress and the President to

decide, we believe that there is merit to elevating EPA to a cabinet

level department. Since EPA was created in 1970, its responsibilities have grown enormously. Its mission, to protect human health

and the environment, has become increasingly significant with the

Nation’s understanding of environmental problems. Today, EPA’s

mission, size, and scope of responsibilities place it on a par with

many cabinet level departments. Its 18,000 employees and $71⁄2 billion budget make it larger or

about the same size as the Departments of Labor, VA, HUD, Energy, Education, State, Interior, and Commerce. Other factors, although less quantifiable, include the highly significant environmental problems to be addressed, the need for environmental policy

to be on equal footing with the domestic policies of other cabinet

departments, and the need for international cooperation in formulating long-term policies.

The United States is the only major industrialized Nation in the

world without cabinet level status for environmental issues. Regardless of its status as a department or Agency, there are longstanding fundamental management challenges that EPA needs to

address. I’ll highlight three of these.

First, EPA must address the challenge of strategic human capital

management. Simply stated, that means having the right people

with the appropriate skills where they are needed. Last October we

reported that EPA had not done sufficient work force planning and

analysis to determine the number of staff and the appropriate skill

mix needed to carry out its mission. We also noted that the number

of enforcement staff available to oversee State-implemented programs varied significantly among EPA’s 10 regions, raising questions about whether enforcement may be more rigorous in some

States than others. EPA has initiated actions to address our concerns, and we are doing followup work to assess this and other

management challenges at EPA.

Second, EPA needs better scientific environmental information.

Such information is essential if EPA is to establish priorities for its

programs that reflect risk to human health and the environment,

something we all believe it should strive to do. This type of information is also needed to identify and respond to emerging problems

before significant damage is done to the environment, damage that

directly affects human health and costs hundreds of billions of dollars a year to correct.

While EPA annually collects vast amounts of data, much of it is

incomplete, inaccurate, and not well integrated. As a result, it is

not useful information to credibly assess risk and establish corresponding risk reduction strategies.

126

Further, the lack of credible data has been a roadblock to EPA’s

efforts to develop a comprehensive set of environmental measures

and indicators needed to evaluate the success of its programs.

And finally, I would like to highlight an area I will call regulatory innovation. Under the existing Federal approach, EPA,

under various environmental statutes, prescribes regulations with

which States, localities, and private companies must comply. This

approach, commonly referred to as command control, has resulted

in significant progress in some areas, but is increasingly being

criticized for being costly, inflexible, and ineffective in addressing

some of the Nation’s most pressing environmental problems.

In recent years, EPA has encouraged wider use of innovative regulatory strategies that could streamline the environmental requirements, but our work has shown that EPA has had limited success

in implementing such strategies.

This is due in large part to a strict interpretation of the existing

regulations. Legislative changes are needed to overcome this barrier, changes that would give EPA broad statutory authority or a

‘‘safe legal harbor’’ for allowing States and others to pursue innovative approaches in carrying out environmental statutes. Of course,

EPA would also need to develop the environmental indicators I alluded to earlier to assure that the new approaches are doing a better job than the command and control approaches they replace.

That concludes my statement. I would be happy to take any

questions.

[The prepared statement of Mr. Stephenson follows:]

127

128

129

130

131

132

133

134

135

136

137

138

139

140

141

142

Mr. OSE. Thank you, Mr. Stephenson. We have reviewed both of

your statements in writing, and we appreciate you attending this

morning.

We do have some questions that we need a little expansion on.

Ms. Tinsley, in your testimony, you talk about the information resources management issue. You stated that the result of the current system has been that States and EPA report inconsistent

data, incomplete data, or obsolete data, I think those are your

words, and your testimony suggests that EPA is not currently capable of monitoring environmental activities or comparing progress

across the Nation. Is this primarily a problem of data not existing

or a problem of how data is managed?

Ms. TINSLEY. It’s both. First of all, I guess if you think about

starting with the end in mind, the Agency and its partners, both

in the States and also its partners in industry, has never decided

what kind of information it needs to really address whether or not

the environment is safe and what kind of indicators it actually

wants to use. I think through this environmental report card, the

agency may get there by default.

And second, you have the data standards kind of issue that I

talked about. Unless people decide what level of quality they want

in the data and then gather data using methods that provide that

quality, they will have a problem as far as using that data to make

decisions about what to do next.

Mr. OSE. Are you suggesting that the programs themselves lack

prioritization within their objectives?

Ms. TINSLEY. Yes, and it is difficult to assign your priorities if

you do not know what is working, if you do not know where your

problems are and what is working to address them.

Mr. OSE. Do you know what the priorities of the EPA are?

Ms. TINSLEY. Well, I know from a mission standpoint what they

are. They are to protect the human health and the environment.

Mr. OSE. But for instance, they do not have a top 10?

Ms. TINSLEY. They have their 10 organizational goals, several of

which include the media programs.

Mr. OSE. Well, I noticed—I do not know if it was your testimony

or Mr. Stephenson’s testimony or a couple of the other witnesses— that one of the standards by which EPA judges its effectiveness is

the number of regulations it issues, rather than an empirical reduction in pollution in, say, the Mississippi River.

Ms. TINSLEY. If you were designing an environmental program to

be effective, you would have that kind of interim step. That is an

outcome. But then you would want to have some means of measuring whether or not issuing your regulation really had an effect on

the environment down the road. Right now it is difficult for EPA

to measure the impact of a particular regulation or a particular

output. You almost have to start when you design a program to determine what environmental impact you want to create, and then

sort of back in to how you are going to do that, and then evaluate

throughout the process to make sure that your hypothesis, if you

will, is working.

Mr. OSE. Do the States have this data? Are the States suffering

from the same problem that the EPA seems to be suffering from,

in terms of the available data to evaluate their efforts?

143

Ms. TINSLEY. Well, much of EPA’s data comes from the States,

and States gather the data that they need to implement their program. In many respects States are ahead of EPA in gathering data,

but what States decide they need differs on a State-by-State basis.

So we do not have a coordinated approach to this, and to the Agency’s credit they are trying to address that problem, but has not

fully addressed it at this time.

Mr. OSE. Well, how do we get from where we are to where we

want to be? And I’ll tell you what my primary concern is. If we look

at individual permits, like, let’s say Doug Ose Manufacturing Plant

gets a permit for the issuance of such-and-such effluent and then

John Smith gets one and Susie Jones and whatever, you do not

have any measurement of the aggregate impact. You only have a

measurement of the piecemeal impact. Is that one of the problems

here?

Ms. TINSLEY. Yes, it is.

Mr. OSE. So, if you will, the methodology is flawed? Is that what

you are saying?

Ms. TINSLEY. I do not think that as they’ve thought about how

they’re going to do their work, they’ve stepped back and done it

from a big-picture standpoint. I mean, the issue that you talked

about, if you were talking perhaps about an NPDES permit, you

know, would relate to Total Maximum Daily Loads, and how much

pollution are you going to put in your stream, and what are you

going to use your stream for—are you going to use it for swimming

and fishing and drinking water—and then how would you decide

what’s coming into the stream based on the permits, as well as all

the other uses, for example, farm and agricultural runoff and that

kind of thing. Then how and where are you going to measure to

make sure that you’re taking care of your stream, and then how

are you going to regulate all the people who are polluting the

stream with some degree of fairness? And many times this—well,

always this is an issue that goes beyond the boundaries of EPA. I

mean, this is surely a big issue to States, but then you also have

the agricultural community and a number of other players at the

Federal level.

Mr. OSE. All right. My time is expired. I recognize the gentleman

from Idaho for 5 minutes.

Mr. OTTER. Thank you, Mr. Chairman. My apologies to both you

and to the members of the panel for being tardy this morning. I

was at school. That’s why I was tardy here instead of being tardy

there. But I did have an opening statement and, Mr. Chairman,

without objection, I’d like to submit that for the record.

Mr. OSE. Hearing none, so ordered.

[The prepared statement of Hon. C.L. ‘‘Butch’’ Otter follows:]

144

145

146

Mr. OTTER. I do have a series of questions, but there was something in response to the chairman’s question Ms. Tinsley, you indicated that you weren’t quite sure that when a program was set up,

you weren’t quite sure of all the data that was going to go in. Yet

in your written testimony that I read last night, almost everything

that comes out of the EPA is outbased-intended. In other words,

you already decide what the target is and hopefully that is clear

water and clean air, and then all of the programs that you put in

place hope to get us from wherever it is now in the status of level

of pollution to usable, drinkable, swimmable, fishable. So I’m curious as to the conflict I see between your written testimony and

your response to the chairman’s question that you weren’t quite

sure what the outcome was going to be, so you had to put certain

laws in place to see if the laws were effective in cleaning it up. If

most of our science or most of our intent here, our mission, is outbased—in other words, we have a target here, and the target is

clean water and clean air and cleaning up solid waste—does that

create a conflict for you? It creates one for me. It seems to beg the

question here.

Ms. TINSLEY. I’m not sure I’m clear on what your question is.

Mr. OTTER. I’m not sure I am either. I think the chairman’s question was relative to setting standards or putting certain legal requirements and regulations in place, and your response to that was

that you weren’t quite sure what the outcome was going to be, and

so in the transition, things had to be changed or something.

Ms. TINSLEY. No. What I’m saying is right now the Agency

doesn’t have a means always of measuring what the outcome is

once it puts a regulation in place. If you think about, for example,

compliance assistance versus enforcement activities on the Agency’s part, right now the Agency doesn’t have a system where it

would know whether it works better to spend its limited resources

helping industries learn how to comply with regulations or does it

work better to go out and do enforcement activities and punish

them? You know, how are you going to best use your limited resources to get the result that you’re after?

Mr. OTTER. And what has been the result? What has worked the

best?

Ms. TINSLEY. The Agency does not know at this time which

works best. See, you have to remember, I’m representing sort of the

outside view on what’s happening at the Agency.

Mr. OTTER. I understand.

Ms. TINSLEY. Right now the agency doesn’t have good systems to

show what works best, which approach works best. No doubt, both

approaches work, but when do you use one versus the other one?

Mr. OTTER. And which is the most productive? In 30 years, having punished a lot of people in 30 years, having encouraged a lot

of people to do good things, we do not know which works best? In

30 years?

Ms. TINSLEY. Not that I’m aware of, no.

Mr. STEPHENSON. Could I add my 2 cents worth on this issue?

Part of the problem is that the performance measures that EPA

has set for itself are, as the chairman noted, largely activity-based

and not outcome-based. The Administrator right now has an initiative to create some environmental indicators. We do not know

147

much about that yet. It’s supposed to be a major element of a report card that she’s going to issue in the fall. That may be a step

in the right direction, but the data itself on which the indicators

are based originate in the States and are problematic, too. First,

there isn’t enough environmental monitoring to get good data. The

data quality varies significantly from State to State just like on the

waters data base for polluted waters, States report information

very differently from State to State. So if that sort of bad or mixed

data is rolled up at the EPA level, it still isn’t going to be very useful. So it’s a long-term problem that needs to be corrected, and

right now EPA’s data bases for air, water, and waste cleanup are

not integrated, and the data that originate within the States may

be flawed depending upon the State they come from. It’s a big problem and we’ve got to resolve it before we can get to deciding priorities or where the taxpayer dollars should be spent for environmental cleanup and pollution control.

Mr. OTTER. Well, Mr. Chairman, my time is up, and we really

didn’t get on to the issue. I hope we’ll—— Mr. OSE. We’ll have another round. We’ll have as many rounds

as you like.

Mr. Kucinich for 5 minutes.

Mr. KUCINICH. I thank the gentleman. To the witnesses, the two

EPA elevation bills that have been introduced into the House take

vastly different approaches. The bill that was introduced by Representative Boehlert is a clean bill that elevates the Agency, and

the bill introduced by Representative Horn includes a number of

additional provisions, some of which, as you know, are controversial.

Do you have any particular view or recommendations that you

could provide at this time that would suggest whether we pass a

clean bill or a bill that also changes the organization and the responsibilities of the EPA? Maybe Ms. Tinsley could start.

Ms. TINSLEY. We haven’t done any work to analyze the two bills,

but my personal perception is that it would be better to have a

clean bill, just because it provides wider latitude for the agency to

work with its partners to make decisions. If there were going to be

some requirements in the bill, I would hope that they would be outcome-based and where you would let the people who have to solve

the problems work together to solve those problems as opposed to

trying to tell them how to solve them.

Mr. KUCINICH. Mr. Stephenson.

Mr. STEPHENSON. I’m going to stay politically correct and in the

middle on this issue, but you guys are the experts on what works

and what doesn’t. The past attempts to elevate EPA have

failed——

Mr. OSE. I want to remind Mr. Stephenson, you’re under oath

here.

Mr. KUCINICH. I was going to ask the Chair to do that. Thank

you.

Mr. STEPHENSON. We were sworn in. The past history, as you all

know well, the 1993 bill, failed in large part because of a minor

amendment that the House couldn’t agree to, so I think history has

shown that a clean bill probably would work better and would be

easier to pass, but I wouldn’t want to let go of some of the manageVerDate 11-MAY-2000 10:31 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00151 Fmt 6601 Sfmt 6601 C:\DOCS\82666.TXT HGOVREF1 PsN: HGOVREF1
148

ment issues that need to be addressed. We think they need to be

addressed regardless of the status of EPA, whether it’s a cabinet

level department or an agency.

Mr. KUCINICH. I thank the gentleman. I think you testified that

you disagreed with the recommendation of the EPA to cut about

270 staff positions from Federal enforcement activities. Is that

right?

Mr. STEPHENSON. Our conclusion was that EPA didn’t have the

data to support that decision. We called for a work force analysis

of the enforcement office.

Mr. KUCINICH. Has that been completed, by the way?

Mr. STEPHENSON. I do not know. We have some ongoing work

looking at the 2003 budget to determine whether—— Mr. KUCINICH. Are you going to continue to recommend that they

delay cuts to Federal enforcement until this analysis is completed?

Mr. STEPHENSON. That would be our recommendation, yes.

Mr. KUCINICH. Now this year the President again has recommended cuts to Federal enforcement at the EPA and at other

agencies and, of course, this is after Enron and when we had the

SEC fail to uncover Enron’s accounting practices. Now the GAO recently found that part of the problem was that the SEC did not

have sufficient staff, and although the President has recommended

the increase in funding for the SEC, has recommended deep cuts

in Federal enforcement at the EPA and numerous agencies or entities charged with ensuring compliance with civil rights laws and

laws that protect our workers. So I’m concerned about this trend

away from enforcement, that it would only encourage further violations, and could end up at a high price for safety, health, civil

rights.

Mr. STEPHENSON. Well a lot of the implementation of environmental law is being pushed on to the States, and so in theory the

States would need more resources. EPA would need less, but that

is oversimplified. EPA’s role would change from one of direct enforcement to assistance to the States in implementing environmental law.

Mr. KUCINICH. I’d like to quickly move to these questions about

measuring EPA performance, that focusing on performance measures could lead to cuts in funding for complicated but important

areas like the environment or global warming, because it’s difficult

to be able to assess what kind of success you’re having in those

areas. So we could end up redirecting our resources to either less

dire problems or even less successful programs, because we can

measure the success of those programs. I mean, how do you look

at that in terms of, you know, trying to measure performance

standards of certain areas that are big picture versus small picture?

Mr. STEPHENSON. There’s not an easy solution. The results of our

environmental efforts are often long term. Sometimes it takes 20

or 30 years to determine whether our programs for cleaning up

water actually result in fewer cancer deaths, for example. So I do

not have a simple solution.

Mr. KUCINICH. OK. Thanks, Mr. Chairman.

Ms. TINSLEY. Can I respond to that just a little bit? I really think

that——

149

Mr. KUCINICH. Mr. Chairman?

Mr. OSE. I’d be happy to allow the response.

Ms. TINSLEY. I think that it’s important that EPA and its partners sit down and develop a strategy to do just that, because if we

do not ever decide what is important to measure and how we’re

going to measure it, then 30 years from now we still won’t know

what works and what doesn’t work.

Mr. KUCINICH. I thank the Chair. Thank you.

Mr. OSE. I thank the gentleman. Mr. Stephenson, the GAO has

issued several reports in recent years, from 1995 onwards. It just

seems to be a constant delivery pattern, for which we’re appreciative, by the way.

Mr. STEPHENSON. That’s good.

Mr. OSE. On the environmental information that’s available at

EPA. Does the GAO feel that EPA is capable of effectively monitoring the environment and comparing progress across the Nation?

Mr. STEPHENSON. In a word, no. As I mentioned earlier, they do

not have the data—they do not have accurate data in the form they

need it and integrated well enough, not only within EPA, but

among all of the other data bases available in the other agencies.

Federal environmental data in general have not been integrated in

such a manner to be useful in setting priorities for environmental

programs.

Mr. OSE. Let me back up. I always like to use the phrase ‘‘flying

blind.’’ Are you saying we’re flying blind after 30 years?

Mr. STEPHENSON. The way EPA has grown, as you know, is

throuigh regulations in each of the media, in air, water, waste

cleanup, and so forth. There’s never been an attempt to integrate

priorities across those programs. So in effect, EPA’s managers do

not know how effective their programs are. I think that’s a fair conclusion.

Mr. OSE. Is it fair to say that might lead to a situation where

we focus on one particular pollutant in the environment, which has

a nominal impact, to the exclusion of another pollutant, which

could have a very significant impact?

Mr. STEPHENSON. That’s a fair conclusion.

Mr. OSE. Does that possibility exist?

Mr. STEPHENSON. That possibility exists until managers have

better data to measure the effectiveness of their programs.

Mr. OSE. Right. Now, this issue of incomplete, inconsistent, or

obsolete data, which I believe you’ve both testified to, could you

give me, Mr. Stephenson, some specific examples of incomplete, inconsistent, or obsolete data that EPA currently collects?

Mr. STEPHENSON. The one I mentioned earlier is the most often

cited example. In the water area, States list their waters as polluted or not, but they all adhere to very different criteria and

standards in doing that. This leads to shared waters across State

lines being listed as polluted in one State and not polluted in the

other, and beyond that the standards that each State adheres to

in creating their data bases vary greatly. Some States have data

integrity laws and their data is very good, and others do not. So

it’s a very mixed bag, and therefore it is very useless in managing

an overall program like clean water.

150

Mr. OSE. Let me make sure I understand the consequence of

that. If you’ve got one State that designated a water as polluted because its standards specify X and the river flows across the State

line and another State decides that its standard is Y and under Y

the river is not polluted, you have Americans subject to two very

different—— Mr. STEPHENSON. Exactly.

Mr. OSE [continuing]. Due processes of law.

Mr. STEPHENSON. Exactly.

Mr. OSE. Ms. Tinsley, do you have any specific examples of inconsistent, inaccurate, or obsolete data?

Ms. TINSLEY. I do.

Mr. OSE. Can you share them with us?

Ms. TINSLEY. I will add a little bit to John’s water example results in a fish advisory in one State and not in another, and they

share the same body of water.

Mr. OSE. What State?

Ms. TINSLEY. I think it was Tennessee, and who was the other?

I’d have to look. We reported on it this year in one of our audit reports where we actually had that situation, where it was Tennessee

on one side of the Mississippi River, and who’s—I do not remember

who is—— Mr. OSE. Arkansas?

Ms. TINSLEY. Yes. It was Arkansas, as a matter of fact, but that’s

not the only example. Some of the other things that we’ve found,

we recently issued an audit report on the quality of enforcement

and compliance data stored in EPA’s docket system, and EPA uses

that to estimate the amount of pollutants reduced as a result of environmental actions, and the data was incomplete and the Agency

was making management decisions using it.

Mr. OSE. I actually think your testimony is that the information

generated from the docket analysis is in large part speculative

without any empirical background. So they’re just making it up out

of the—I do not—I mean, those are just my words. They aren’t

yours, but, you know——

Ms. TINSLEY. I do not think that they would say that they’d

make it up.

Mr. OSE. Do they have any empirical data behind these docket

conclusions?

Ms. TINSLEY. I would assume that initially it was based on some

kind of scientific analysis. We did some other work on enforcement

where the Agency actually reports in its GPRA report the results

of compliance and enforcement actions, but what we found was

that the Agency never followed up to find out if the companies actually did come into compliance. The companies promised to come

into compliance. EPA reports it as an accomplishment, but as a

matter of policy, did not go back and followup to see whether or

not the companies really came into compliance.

EPA’s Superfund system also has problems. The CERCLIS system is what it is called, and it measures what’s going on in the

Superfund program, and what we found was many times the Agency information about what States were doing on non-national priority list sites wasn’t even included in the system. So the Agency was

making decisions without complete information.

151

Mr. OSE. The gentleman from Idaho.

Mr. OTTER. Thank you, Mr. Chairman. I want to mention that

actually there’s one other bill by Mr. Ehlers that has also been advanced, and that should be the subject, if I’m correct here, Mr.

Chairman, also of our discussions here this morning.

Mr. OSE. Mr. Ehlers’ bill is part and parcel of this discussion.

Mr. OTTER. And I think his bill, along with much of the testimony that you two—although I didn’t listen to your verbal testimony this morning, I did read what you had submitted, that the

Environmental Protection Agency itself is fraught with lots of problems, lack of standards, lack of follow-through, lack of goal-oriented

programs that are verified later on, 30 years of not knowing whether or not punishment or the stick or the candy, which is the most

successful, and it seems to me that although I could certainly

argue, I think, with a certain amount of reason for the elevation

of the director to cabinet staff level, it seems to me that we’re getting the cart before the horse here, that maybe we better clean up

everything and get everything in order as perhaps suggested by

Mr. Ehlers’ bill, and then have an Agency that is fulfilling a mission. I would hate to think of what we would have done with the

Secretary of State had we had problems all over the world, ineffective Secretary of State, and then all of a sudden decided, well, let’s

put him up to cabinet level, that will make everything OK.

I do not want to share a misguiding opinion or idea with the

American people that because we’ve taken it up to cabinet level,

which is not an easy thing to do, by the way, that everything is

going to be all right. You think we need to continue to share that

we’ve got 283 million people that need to worry about polluted waters, and polluted air, and collected solid waste disposal and that

it cannot just be one person or Agency. It’s got to be all 50 States;

in Idaho, all 44 counties, all 202 cities. I’m a little concerned, not

only from your testimony but also from the suggestions from Representative Ehlers that everything is not right, and I think we’ve

pretty well established that here this morning.

Defend for me taking an inadequate organization that is

missioned with a very important part of our Nation’s health to cabinet level staff and still be inefficient.

Ms. TINSLEY. If you were to compare what EPA is doing from the

standpoint of having a results-oriented culture with other organizations that I’m aware of through interacting with IGs, EPA is actually ahead and is a leader in many of these areas.

Mr. OTTER. Cabinet level position?

Ms. TINSLEY. Yes.

Mr. OTTER. Well, maybe we should remove those from the cabinet level.

Ms. TINSLEY. So if we’re going to have a level playing field, then

we might need to think about that, but as far as accomplishing its

environmental mission, it is going to have to interact a lot with

those other Federal agencies that are cabinet level position—you

know, have cabinet level status as well as, of course, as I’ve said,

with the States. I think that being an equal player at the table

could give the Agency more influence in that area, because right

now it really has to deal through personality and, not through havVerDate 11-MAY-2000 10:31 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00155 Fmt 6601 Sfmt 6601 C:\DOCS\82666.TXT HGOVREF1 PsN: HGOVREF1
152

ing an equal seat at the table, and that’s a difficult thing to do,

given that it’s really only 20 percent, even at the Federal budget.

Mr. OTTER. Only 20 percent.

Ms. TINSLEY. I know ‘‘only’’ sounds like a lot, but when your goal

is all about clean water, clean air, removing hazardous waste,

they’re taking that 20 and trying to leverage the other 80.

Mr. OTTER. But you understand there’s a lot more than 20 percent of this Nation’s budget that’s spent in pursuit of a clean environment. I was the lieutenant Governor of Idaho for 14 years, and

we busted our backs many times trying to match and trying to also

advance the cause of the clean water, air, and solid waste disposal

in Idaho. And we had to come up with an awful lot of money. If

not the exact same amount, in many cases, it was a 40/60 split,

and in some cases, although we were promised money, we got none.

So there’s an awful lot more money being spent than 20 percent of

this Nation’s budget, and it is an important position. But also when

we come back on the next round, perhaps you can square up for

me that if the States need to take a much larger role in this, is

that going to diminish the actual role of the EPA as we see it on

the enforcement level here and then become the counseling and become the activities adviser and that sort of thing for States.

Thank you, Mr. Chairman.

Mr. OSE. I thank the gentleman. I want to go to something, and

I would appreciate both of your input on this. I look at the way

EPA is structured today, and the analogy that was drawn for me

was of a pin cushion. You have the Administrator; and then you

have Region 9, and Region 3, and Region 6, and Region 5; and in

each of those regions, you have air, water, land, stovepipe type of

regulatory enforcement agencies; but you do not have any level between the regions and the Administrator that would take all of this

information and sort through it for the purpose of setting priorities

within the Agency itself.

Coming back to your point for instance, if I recall correctly, Tennessee being a polluted river on one side, but Arkansas it’s not.

How do you reconcile those? It’s the same river. All it does is move

3 feet.

Now, Congressman Horn has within his bill a suggestion for a

Bureau of Environmental Statistics, where this information that

would allow the compilation and the analysis of these statistics

would take place. Is this a good idea?

Mr. STEPHENSON. I think both of us would agree that any bureau

or organization that would do a better job of integrating environmental data and providing meaningful data to measure progress

and assess priorities across programs would be a good thing. EPA

is organized—now as you have observed is partially media, water,

and air and so forth and partially function, enforcement, compliance. So it’s a mixed bag. It’s a very strange organizational construct.

Mr. OSE. From an organizational construct position or perspective, are there other Federal agencies that are similarly structured?

Mr. STEPHENSON. I do not know.

Mr. OSE. OK. Ms. Tinsley, in your testimony, you talk about how

these environmental problems we just talked about transcend

media boundaries. You have some interaction between air, and

153

water, and land, and what have you, and solutions frankly require

some innovative approaches rather than, if you will, a point source

kind of analysis. Just to rephrase the question I asked Mr. Stephenson, does the current organizational structure lend itself to

solving these cross-media problems?

Ms. TINSLEY. It does not lend itself to solving those kinds of

problems, but it also doesn’t preclude the Agency addressing problems across media. One of the things that recently the Agency has

begun doing is looking at environmental protection from a watershed standpoint, and using that strategy. It’s going to try and mix

all of the different media things together so that you look at how

the air pollution in fact impacts the water and things like that. So

it’s not impossible to get there with this structure. And I think any

structure that you have will have some challenges to it. I think

most important is the ability and the desire of the people who are

working on the problem to work together to solve it.

Mr. OSE. Well, are we presently doing a good job of handling

these cross-media issues?

Ms. TINSLEY. I think that if you were to ask people in the Agency, they would say no, not as good as they could be.

Mr. OSE. I want to examine this watershed issue. There’s a situation down in South Carolina over the Tar River field that feeds

into the Pamlico Sound. Going to your safe legal harbor issue that

you mentioned in your testimony, the approach that was taken

changed to measure an outcome rather than a specific effluent discharge, for instance. In other words, the agencies all got together.

The stakeholders signed off on some safe harbor provisions, and

they went and they measured what’s the impact at the mouth of

the river where it spills into the sound, because that’s basically

what they wanted to monitor. It changed the approach.

Now, I want to come back—I know my time is about up. In fact,

it is up. I want to come back to this safe legal harbor issue in particular in this next round, Mr. Stephenson. It’s your suggestion, I

think, in your testimony that we need to address that. So Mr.

Otter, 5 minutes.

Mr. OTTER. Thank you, Mr. Chairman. I want to go back to the

question I left you with, and that is how do we square up—if we’re

going to ask the States to take a much larger role in enforcement,

it would seem to me if the EPA is going to carry on the enforcement activities but sort of the advice and setting standards and

that sort of thing, which is needed across State lines, and I think

we’ve pretty well accomplished a mindset on that, but if we do have

this transfer, if you will, to the States, do you think the elevation

of the Administrator to a cabinet level position would be more effective for the States as a result of that? You know, I’m just concerned that if we do that, how does the Governors Association feel

about it now? Do they want to see it elevated? Do they think it’s

an important thing to do? It seems to me that if they’re going to

be partners in this program, that they need to buy into the idea

that we’ve got a cabinet level position here.

Mr. STEPHENSON. I do not know. I think that would be a great

question for the second panel. You’ve got a lot of the State witnesses here. I think more importantly, EPA’s role is changing from

direct enforcement to assistance to the States and I do not know

154

what that means in terms of staffing levels. But assistance is certainly a very important function—it’s trust by verifying. They’re

still going to have to perform some oversight functions to make

sure that environmental laws are consistently applied across the

States. So they haven’t analyzed their staffing levels and their skill

levels to determine if they’re in a good position to do that yet.

Mr. OTTER. Ms. Tinsley.

Ms. TINSLEY. I’ve heard the Administrator testify on the funding

that the Agency is asking for to give additional grants to States,

that those grants are going to be competitive, and would probably

be awarded to the States that are doing the best job in enforcement, which would have to make you wonder what’s going to happen in those States that aren’t doing a good job of enforcement because they’re not going to get any more money. So the oversight

and the involvement of EPA that John talks about is going to be

very important. EPA is going to have to continue its enforcement

role in addition to the compliance assistance.

Mr. OTTER. Well, I would agree, and perhaps the EPA’s role of

enforcement has not been as effective, and maybe that’s because it

isn’t a cabinet level position. You know, I’m very much aware since

1994 without a permit, the Army Corps of Engineers has been

dumping 200,000 tons of sludge into the Potomac River. In fact,

into the habitat of the snub nose sturgeon, and yet without a permit, violating the law.

If the State did that, I would think that the EPA—are they just

without power to make another agency obey the laws of this land?

Ms. TINSLEY. They don’t seem to be real engaged in making that

happen. Our audit says neither EPA nor the States do enforcement

the way the regulations would anticipate it should happen.

Mr. OTTER. Which brings me back, I guess, to the question that

I had earlier. Maybe we need to clean this mess up before we advance this mess in the very important and necessary role that it

has.

In your supportive data that I read last night, Ms. Tinsley, I’m

going to read for you a part of a paragraph: ‘‘our reviews and investigations have disclosed a particularly disturbing trend in the number of environmental laboratories that are providing misleading

and fraudulent data to the States for monitoring the Nation’s public water supplies. Several current lab fraud investigations involve

severe manipulations of lab tests used to evaluate the compliance

of public water supplies with Federal drinking water standards.

Some of these manipulations have masked potential violations of

drinking water regulations.’’

If we elevated the Director to the Cabinet level, would this help

improve this, the qualification of labs, the verifications of labs, the

veracity of labs? How is this going to help an inherent problem?

Ms. TINSLEY. I don’t think that whether EPA is a Cabinet level

office or not has any impact on that issue.

Mr. OTTER. So we will just make bigger mistakes at a higher

level?

Ms. TINSLEY. Just not one way or another. That’s a different

issue.

Mr. OTTER. Thank you, Mr. Chairman.

155

Mr. OSE. I thank the gentleman. I want to come back to this safe

harbor issue with Mr. Stephenson. This really boils down to the

EPA relationship with the States in terms of what kind of insulation you can give them if they are going to do innovative things.

Now you recently released a report on obstacles to State environmental innovation. What did you find were the chief obstacles that

the States faced?

Mr. STEPHENSON. One of the chief obstacles is the rulemaking

that EPA does based on the regulations. The rulemaking is very

prescriptive and it is done that way to be legally defensible. But

the impact that has is that it stymies innovation within environmental programs. And the safe harbor—— Mr. OSE. Before we leave that, I want to make sure I understand

you correctly. When you say it is prescriptive, the regulations mandate that it will be done A, B, C?

Mr. STEPHENSON. In a specific way.

Mr. OSE. Rather than L, R, Q? It is A, B, C, or no way at all?

Mr. STEPHENSON. Right. In a lot of cases that is true. And what

we’re suggesting is that maybe there is more room for some flexibility in environmental programs. Just like I described, measuring

pollution at the mouth of the river, rather than regulating everything that’s put into the water along the way. It’s an outcomebased indicator and that’s what we advocate.

Mr. OSE. What sort of things do you recommend to help change

that prescriptive culture that exists at EPA?

Mr. STEPHENSON. I think recognition in some of the legislation

that employing some innovative practices may be acceptable would

be the safe legal harbor that we are talking about. Right now, the

legislation doesn’t really allow for that, in our view. I believe there

was a House bill last year that in some way addressed this, but I’m

not that familiar with it.

Mr. OSE. I want to make sure I understand. Between rules and

regulations and legislation, you think the prescriptive issue is legislative in nature, not regulatory in nature?

Mr. STEPHENSON. I think that because there is no provision for

this in the legislation, then the rules are not written in such a way

that would allow innovative practices to be employed.

Mr. OSE. Is there a provision in the legislation that prevents the

innovation?

Mr. STEPHENSON. No.

Mr. OSE. It’s just that the safe legal harbor issue——

Mr. STEPHENSON. And EPA chooses to implement the rules the

way it does in large part so they will be defensible against, for example, the Clean Air Act or the Clean Water Act. That is the approach they think they have to take.

Mr. OSE. So your suggestion is that in order to allow that culture

to evolve into something a little more innovative, we need more

flexibility in the legislation?

Mr. STEPHENSON. Exactly. Exactly.

Mr. OSE. All right. Then, Ms. Tinsley, you indicate in your testimony that relations between the EPA and the States have been

strained in some occasions. Is this the principal reason for that? Is

it that the States think we can accomplish something by doing a

little more innovative approach versus the EPA’s prescriptive patVerDate 11-MAY-2000 10:31 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00159 Fmt 6601 Sfmt 6601 C:\DOCS\82666.TXT HGOVREF1 PsN: HGOVREF1
156

tern of operation? What are the principal causes of this difficult relationship between the States and EPA?

Ms. TINSLEY. In the past, EPA has monitored the States through

requiring States to do certain activities, as you said. And States

want to do other activities. It seems that it is difficult for EPA to

give up the old way of doing business in favor of a new way. And

EPA has also tried, as it has gone through a transition to try to

work with States, to hold States accountable for showing changes

in environmental results and States have not wanted to be held accountable to that level. So you have two different things going on.

Mr. OSE. Well—— Ms. TINSLEY. And they sort of work against each other.

Mr. OSE. Let me ask the question to the extent that I can. It

would seem to me that somebody who lives in New Mexico, working at the State of New Mexico’s Department of Environmental

Regulation or whatever, is far closer to a problem than somebody

at a desk at EPA here in Washington, in terms of what needs to

be done. Are we just kind of saying, you know, we are the big dog,

you are the little dog, you have to do what we say? Is that what

is going on here?

Ms. TINSLEY. At least in some of the regions where we have

looked at how the regions are interacting with the State, it is something like that. And part of this is even a training issue where,

while the headquarters office at EPA said it was going to do business differently with States, the regional people said that they had

not bought into it. And that’s what they actually told us when we

did our work, was that maybe headquarters wanted to do that, but

that’s not what they were doing. Because EPA doesn’t have a good

handle on what its work force is doing all the time, it did not even

realize that was a problem.

It resulted in regional people who worked with the States actually asking the States to measure hundreds of things, all the old

activities that they used to monitor, plus the new agreements with

the States. And if you step back and looked at what was happening, it looked like the States would spend all of their time counting

things and not much time protecting the environment.

Mr. OSE. Mr. Otter.

Mr. OTTER. Ms. Tinsley, in your capacity as the Inspector General of the Environmental Protection Agency, how many people do

you have reporting to you?

Ms. TINSLEY. We have about 350.

Mr. OTTER. No, I mean to you.

Ms. TINSLEY. To me personally?

Mr. OTTER. Yes.

Ms. TINSLEY. I have eight.

Mr. OTTER. And, Mr. Stephenson, in your capacity as the Director of Natural Resources and Environment, how many do you have

reporting to you?

Mr. STEPHENSON. Directly reporting about seven or eight.

Mr. OSE. Do you know that the President now has 14 on the

Cabinet reporting directly—I mean in the chain of command, 14

different people reporting to him. I come out of the private sector,

and generally we thought five to eight was about the max that you

could really do a good job with. And part of my concern about this

157

has always been if we did not fold into another agency and have

that agency representing the Environmental Protection Agency on

the Cabinet level, were we going to diminish those that were already there or were we not going to do as good a job as we would

with a little more independence? I think that’s one of the things

that we really have to concern ourselves with.

The other that I am concerned about is as recently as 2 weeks

ago, the environmental community, along with many of the States,

were quite upset when an individual was removed from the Department of the Interior because of an apparent disagreement with the

administration. And as that person was removed, it was suggested

that, you know, that the administration made sure that removal

took place. Even though the separation just by command would

offer a little bit of autonomy, I don’t know of any of these 14 people

that I have seen any disagreement with this administration, so

they are all still sitting around the table.

One would have to wonder if the closer the Environmental Protection Agency got to the administration vis-a-vis the Administrator now sitting at the Cabinet table, that perhaps part of that

autonomy and that creative individual willingness and focus on

mission might be diminished, in light of what happened a couple

of weeks ago in the Department of the Interior.

Mr. STEPHENSON. I don’t have any basis for judgment, but—— Mr. OTTER. Well, you are the Inspector General. You guys should

have investigated that. You don’t have an opinion on that?

Ms. TINSLEY. Well, I do not investigate things that happen at the

Department of Interior. I’m pretty busy at EPA.

Mr. STEPHENSON. I think the management challenges are independent of Cabinet level status. Maybe we shouldn’t reward EPA

until it gets its act together, but based on the President’s management agenda and the OMB report card that it just issued, no agency is doing a good job. There were reds everywhere on their green,

yellow, red checklist. So that is not really a criteria.

To me, it is the importance of the job that EPA is doing and the

U.S. standing in the international community. If every other country says this is Cabinet level status, then why don’t we? I guess

that is kind of where I am.

Mr. OTTER. And I’m sure you are aware that there is a major difference in government structure between the U.S. Government—— Mr. STEPHENSON. Of course.

Mr. OSE. Does Mexico, for instance, do they have a Cabinet level

position?

Mr. STEPHENSON. To my knowledge, yes.

Mr. OTTER. I will take my environment, and this is no great disparagement to our friends south of the border.

Mr. STEPHENSON. I am no way suggesting that elevating EPA to

Cabinet level is going to solve all of its problems and make it a better agency. That is not what I am suggesting at all. EPA has to

address its management concerns regardless of whether it is a Cabinet level agency or it remains an independent agency.

Mr. OTTER. My expectation would be if we do elevate it, if we increase the title—if I took a person in my company, if I went from

Lieutenant Governor to Governor, I was expected to do a much

greater role. If I took a person from vice president to a chief of a

158

department or to president of a company, I would expect them to

have a much greater role, a much greater influence, and much

more focus overall for their particular area of discipline. And I

would expect it to improve.

Mr. STEPHENSON. Yes. Based on testimony from ex-Administrators in the Senate last year, they contend that they don’t have an

equal footing with other Cabinet level departments, they don’t have

a place at the table. That’s debatable, I guess.

Mr. OTTER. I think it would be. And perhaps I’d like to get a

Governor at that Cabinet level table as well. And so if we are going

to go to 15, we might as well go to 16 and put a Governor on there.

Thank you, Mr. Chairman.

Mr. OSE. I thank the gentleman. I keep coming back to this

structure issue. In terms of the Agency itself, going back to the

analogy I introduced of a pin cushion where the different assistant

administrators and the different regional directors report directly

to the administrator, I think there are 22 actual direct relationships there. If we are going to elevate EPA to a Cabinet level status, aren’t we also obliged to look at how it will operate after the

fact? If we can identify some clear organizational issues that are

frankly contributing to the difficulty we are having in the aggregate of positively affecting our environment, aren’t we obliged as

we elevate to fix those structural problems?

Mr. STEPHENSON. Yes, I think they need to be fixed, whether

EPA is elevated or not.

Mr. OSE. Do you share that, Ms. Tinsley?

Ms. TINSLEY. Yes.

Mr. OSE. All right. Now one of those that has been suggested,

and I think Mr. Otter brought this up earlier, had to do with an

office dedicated to science. Should the EPA have an office dedicated

to science, separate and apart? A deputy administrator dedicated

to the scientific function or functions?

Mr. STEPHENSON. If our policy is going to be based on sound

science, I would think that such a position would be appropriate.

Mr. OSE. Do you share that opinion Ms. Tinsley?

Ms. TINSLEY. Yes, I do.

Mr. OSE. Now there has also been the suggestion at previous

hearings regarding an office to quantify whether or not the programs are having an environmental impact, a positive environmental impact or a negative environmental impact. And I think,

Mr. Stephenson, you talked about this previously. Should the EPA

have an office, a deputy administrator, if you will, responsible for

basically monitoring these programs to ensure that they’re achieving their objective? So you would have a science guy, then you

would have an enforcement office, you would have a ‘‘success or

failure’’ office. I don’t know what you call it.

How do you go about quantifying whether or not the money we

are spending is actually having the effect that we want?

Ms. TINSLEY. If——

Mr. STEPHENSON. Go ahead.

Ms. TINSLEY. If you had the information you needed to measure

what was happening in the environment, then you could hold the

individual managers accountable. In normal business, every manVerDate 11-MAY-2000 10:31 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00162 Fmt 6601 Sfmt 6601 C:\DOCS\82666.TXT HGOVREF1 PsN: HGOVREF1
159

ager is accountable for making sure their part of the organization

works.

Mr. OSE. So you have to have an office of the data administrator,

so to speak, into which all data flows and from which you can get

good periodic reports evaluating the program.

Ms. TINSLEY. That would be one way to do it. One of the reasons

that EPA doesn’t have the data that it needs to manage is not because managers would not like to have that, but because there has

sort of been, at least in the last few years, a collective decisionmaking process about what money gets spent on, and managers

have a tendency to not want to take funds away from their individual programs for the greater good, if you will, because they are too

busy trying to do the things that they hope are working to deliver

environmental results.

Mr. OSE. But you both testified that there is little scientific data

by which to judge those programs being funded.

Mr. STEPHENSON. Well, specifically data on environmental indicators, I would call them, supported by sound science. But, as you

know, what does the data show in terms of how much cleaner the

water is getting, how much cleaner the air is getting and so forth?

The fact that EPA does not have a good set of outcome-based environmental indicators would suggest that it has fallen through the

cracks in the Agency’s current organizational structure.

So I wouldn’t want to get hung up on the title of a bureau of environmental statistics or whatever. But that’s a really important

function for EPA to determine its priorities. They cannot employ

risk-based environmental strategies unless they have that kind of

data. So it is an extremely important function.

Mr. OSE. And we don’t have that data now in a usable or consistent manner.

Mr. STEPHENSON. No, and I think the current Administrator

would agree. That is why she has initiated the environmental indicators study.

Mr. OSE. My time is up. OK. I am going to get another round

here. Both of you have testified about the human capital issue in

the Agency itself, one comment being that the skill set within the

work force is not necessarily aligned with the challenges we face,

and the second issue being that we have this bulge, if you will, in

the employee pool that is moving through chronologically and within 5 years we are going to lose a lot of senior people.

How do we deal with that? I mean, if we know they are coming,

we know these retirements are pending within 5 to 10 years, we

have a need for a change in the skill sets, is this an opportunity

to frankly evolve the Agency—that is not a verb, but I just made

it up—evolve the Agency into something a little more responsive or

reflective of our current challenges?

Mr. STEPHENSON. Preparing for the future is part of good human

capital strategic management in any agency. There are two problems. There is the succession planning problem and there is the

change in the skill mix from a direct enforcement function, to more

of an assistance to the States, to kind of an oversight function. So

there are two problems which should be part of EPA’s strategic

human capital plan.

160

After we reported on it last year, they were going to undertake

several initiatives to address these specific concerns. GAO has put

out a human capital model for all agencies to use to help guide

them through this process, but, we haven’t been back in to look at

how well they are doing in that endeavor.

Mr. OSE. Ms. Tinsley, would you agree that we have—I mean, we

could look at it as lemons or lemonade in terms of an opportunity

here to refocus the skill set, if you will, within the Agency. Is this

an opportunity or an impediment?

Ms. TINSLEY. Well, we would have to look at it as an opportunity.

But this is an opportunity that all of Federal Government has,

which I think in part is why there has been legislation introduced

to at least give managers more flexibility in how to address these

problems. If you look at all these folks who could leave the Agency

in 5 years, the Agency doesn’t have any idea whether or not that

is going to happen. So it needs, as John said, to have some strategic way of thinking about where it wants to get to and what skills

it wants to replace, how it wants to do that through hiring versus

training, so that 5 years from now the Agency is where it wants

to be.

Mr. OSE. Now one of you in your written comments referenced

a number of pending. EPA ordered a contract ‘‘in early calendar

year 2002 to develop a model work force planning process and a

system that will meet the Agency’s competency-based work force

planning needs.’’ That is Ms. Tinsley’s testimony. When will this

contract be complete? Do you know?

Ms. TINSLEY. I do not know.

Mr. OSE. Is it an open-ended contract?

Ms. TINSLEY. I don’t know the answer to that. I can get back to

you for the record.

Mr. OSE. For the record? We may well want that.

And also there is a second mention in here, your office reported

the Agency did not have a policy for awarding discretionary assistance funds competitively. You did testify a little earlier today about

some change in the competitive grant process.

Your written testimony says that the Agency agreed with the

OIG’s observations and is drafting a policy which will address competition in the award of discretionary assistance funds. When will

this be completed?

Ms. TINSLEY. I don’t know when that is going to be completed,

but I have heard discussions among the Agency managers, particularly the Assistant Administrator for the office that handles that.

I think that draft will be out soon for our comment.

Mr. OSE. See, this is the kind of thing that makes it very difficult

for us on this side, if you will, to evaluate what we’re doing. I have

heard nothing in terms of specific empirical objectives as they relate to the environment and I did not read anything in your testimony relative to EPA’s mission in addressing those objectives, specific, empirical objectives. We have a contract on a work force planning process, for which I don’t know the due date. In other words,

when is that contract supposed to be finished?

And on the competitive grant process, I get the same question

that we don’t know when that will be finished. It almost seems like

161

we have a culture here that does not set priorities with due dates.

I mean, am I accurate here?

Ms. TINSLEY. Yes. And you have a culture from an environmental

standpoint that doesn’t have the information to work with others

to make those decisions.

Mr. OSE. To make those decisions.

Ms. TINSLEY. That is right.

Mr. OSE. Or a central collection point into which that data could

come so priorities could be set and based on those priorities we

could allocate resources accordingly.

Mr. Otter for 5 minutes.

Mr. OTTER. Mr. Chairman, I have no more questions for this

panel, but I would like to draw your attention to and make a unanimous consent request that a letter received by you on December

20, 2001, relative to this very subject, the elevation of the Administrator to Cabinet level, signed by myself and five of my colleagues,

be made a part of this permanent record.

Mr. OSE. Without objection.

[The information referred to follows:]

162

163

164

Mr. OTTER. Thank you, Mr. Chairman.

Mr. OSE. I do appreciate you taking the time to come and visit

with us today. I know it is not easy to constructively criticize, but

I do appreciate the input. It is helpful to me to have you come and

tell us what you found. I am interested in whether or not to elevate

EPA. But I’m also cognizant that we are not going to repeat the

problems we faced in the past. We are going to try to fix them.

So your testimony has been very helpful in that regard, and I

want to thank you for coming. You are relieved of duty, so to

speak, and we will call the second panel forward. We will take a

5-minute recess here, too.

[Recess.]

Mr. OSE. Our second panel today, we are joined by Commissioner

Karen Studders from the Minnesota Pollution Control Agency.

Thank you for coming. And also by Jane Nishida, the secretary of

the Maryland Department of Environment. Ladies, as you know,

we swear in our witnesses on this committee. Rise and raise your

right hands.

[Witnesses sworn.]

Mr. OSE. Let the record show that the witnesses answered in the

affirmative. We provide our witnesses with 5 minutes to summarize their testimony, which we have received in advance and we are

grateful for that. So, Ms. Studders, you are going to be first. Thank

you for coming.

STATEMENTS OF KAREN A. STUDDERS, COMMISSIONER, MINNESOTA POLLUTION CONTROL AGENCY; AND JANE T.

NISHIDA, SECRETARY, MARYLAND DEPARTMENT OF THE

ENVIRONMENT

Ms. STUDDERS. Thank you, Mr. Chairman and members of the

subcommittee, for giving me this opportunity to appear before you

today. I welcome the chance to provide Minnesota’s perspective on

elevating the EPA to Cabinet status.

Minnesota has consistently supported a Cabinet level department

of the environment. I continue in this tradition today. It is more

important than ever before that environmental protection is

factored into decisions made at the highest councils of our land.

There are three reasons to justify this change. First, elevating

EPA to a Cabinet level status would improve the department’s ability to work laterally with other Cabinet members on what I call

second wave environmental issues involving agriculture, transportation, and energy. I will explain those issues in a moment.

Second, pollution crosses State, regional, national, and international boundaries, thus requiring a Department of the Environment with access to policy discussions at the Cabinet level.

Third, a Cabinet level Department of the Environment provides

leadership to States so that we can better do our jobs.

On my first point regarding the second wave of environmental

problems, after more than 3 years as Minnesota’s environmental

commissioner, it is clear to me that the State regulatory agencies

are facing very different problems today than we faced in the

1970’s, 1980’s, and the 1990’s when Congress passed laws to deal

with end-of-pipe emissions, which I call environmental protection’s

first wave.

165

This was met with hard-won success. However, today the greatest threats to our environment are not from our regulated factories

and facilities, but they are from widely disseminated pollution arriving from transportation, energy consumption, agriculture and

urban sprawl. In Minnesota we realized a few years ago that these

complex problems could not be regulated out of existence; we needed new strategies, what I call the ‘‘second wave of environmental

protection.’’ This relies on enforceable goals, partnerships, innovation, public

stewardship, and is performance-based. In Minnesota, Governor

Ventura has afforded me the latitude to work directly with my fellow commissioners in the State Department of Transportation, Agriculture, Commerce, Health and Natural Resources. By sitting at

the table with the top managers of other agencies, Minnesota has

achieved some remarkable success. And I won’t go into a great deal

of detail, but I would encourage to you read it in my written testimony, but I would like to cite two examples.

First, the environmental agency participated in writing the State

Transportation Department’s 5-year strategic plan so that when we

design roads, we ensure we aren’t increasing the congestion unnecessarily and causing us to have air quality problems.

Second, Minnesota just completed its first energy plan. It is a 10-

year energy plan written by our State Department of Commerce.

The entire appendix, more than half of the document, talks about

the environmental consequences of the energy choices we make.

And it literally costs that analysis down so we can look at what is

the cost to the ratepayer if we add this piece of pollution control

equipment to this plant in this area. That is a first for Minnesota.

I am very proud to say that we have been able to do such work.

I do believe that EPA could forge more productive relationships

and strategies with other Cabinet members if the department had

a permanent place at table, as do I in the State of Minnesota.

My second point, a Department of the Environment provides

clout for solving pollution problems crossing State, national and

international boundaries. Just as today’s pollution problems require national strategies, they also require stronger cooperative relationships. As a commissioner that shares a border with Canada,

I know how important authority and credibility are to developing

and maintaining such relationships.

My final point is that States need environmental leadership that

provides flexibility in approaching environmental problems in the

21st century.

And now I’m going to differ a little from my written testimony

and try to touch on some of the issues that you raised in your questions to the first panel, if I can. I do believe that to achieve this

leadership goal, EPA needs to do three things.

First, we need a statute that—we need Congress’ help in writing

to allow EPA to operate effectively among the media programs. We

need a safe harbor, and I will talk a little bit about that.

Second, we need to change the structure so that it helps us address cross media issues. However, I would not suggest changing

structure until we do some things legislatively.

Third, we need to focus on environmental results. I, too, come

from the private sector and am very interested in results.

166

First, in 1996, Minnesota passed a statute called the Environmental Regulatory Innovations Act to give my agency the ability to

try new ways of working on environmental problems. This law

leaves in place our existing laws related to air, water, and land, by

allowing us to try approaches that are different, promoting reduction in pollution levels overall and reducing unnecessary administrative burdens. And it is allowed under State policy.

A similar overarching Federal law could help EPA deal with such

innovations, one that leaves in place all of the major environmental

acts but also gives EPA the flexibility it needs to do things differently and depart from statute when needed through variances

like Minnesota’s law, or another mechanism. This is the legal safe

harbor I refer to.

Next, EPA needs a clear message from Congress that it wants

EPA to be flexible. That is where a legal safe harbor sends such

a message to EPA. In the meantime, a new overarching environmental law can be and needs to be written, eventually replacing

the media laws that are currently on the books.

Then we need to address EPA’s structure. Minnesota has experience in designing a structure responding to emerging environmental problems, such as smart growth, that cut across the media

programs. In our experience, the EPA innovations staff tries very

hard to do things differently, but they run into obstacles with the

media program staff. Perhaps using a congressional task force with

the administrator, congressional staff, State environmental staff,

and environmental commissioners to design a new structure will

give EPA the flexibility to do their job once a national environmental act is written.

Consider a functional organization with reporting similar to the

corporate model, such as permitting and enforcement and research.

But I will tell you I think we need a tight timeframe to do this.

We do not need to get caught up in analysis paralysis. We need a

flexible statute written. I think it could be done in a month.

Second, we need to write a national environmental protection act

with a task force doing that work and getting stakeholder buy-in.

That could be done in about 6 months. And then subsequently we

need to redesign EPA. That, too, I think would take about 6

months.

Once the above are done, Congress could then reduce the number

of committees that oversee EPA. I believe at present in excess of

15 congressional committees oversee EPA. There are not many

other departments that have such a reporting relationship with

Congress.

Then EPA and Congress could move further in reporting on as

opposed to counting numbers of permits issued and numbers of enforcement actions taken to measuring how the results actually improved our environmental state. This is something that Governor

Christie Whitman has made a priority in her administration, and

a new statute allowing greater flexibility and structure designed to

allow the department to work across media issues would give EPA

the tools it needs to focus on environmental outcomes, which I believe are clean air, water, and land.

Finally, I’d like to share with you that I’m going to ask you this

question as I close: How should we measure the quality of our air?

167

One, should we focus on the number of permits that are issued to

major facilities; or, second, on the number of days when air has no

negative health impacts? In Minnesota, we measure the latter.

Thank you for inviting me to provide Minnesota’s perspective,

and I apologize in advance, because I know I took more than 5

minutes.

[The prepared statement of Ms. Studders follows:]

168

169

170

171

172

173

174

175

176

177

Mr. OSE. Ms. Studders, we are glad you are here. Your stuff is

so good we decided to let you run. We figured it was productive.

So, Ms. Nishida, if your stuff is as good we’re going to let you run

a little long, too.

Ms. NISHIDA. Thank you, Mr. Chairman and members of the

committee. My name is Secretary Jane Nishida. I represent the

Maryland Department of the Environment and I am privileged to

be here today to testify about Maryland’s position with regards to

the elevation of EPA. You have my written testimony, and what I

would like to do in light of the number of questions that you asked

the panel one witnesses, is to forgo reading or summarizing my

written testimony but instead try to answer some of your questions

in the context of three questions that were posed to me originally.

The first question is whether or not the original charter of EPA

is still valid today, 30 years later. The second, whether improvements should be made in elevating EPA. The third is whether EPA

should in fact be elevated.

With regards to the first question, that is whether or not the

original charter of EPA is valid today, I want to answer that in the

context of an experience that we have in Maryland, and that is our

restoration of the Chesapeake Bay.

The earlier panel testified that they had run into experiences

where States may be treating a water body differently from across

State lines. I am happy to tell you that with regards to the Chesapeake Bay, it is an unprecedented level of cooperation that we have

with regards to the protection of the Chesapeake Bay between the

States of Maryland, Pennsylvania, Virginia, and the District of Columbia. As well, we have included other States who are not technically a part of the Chesapeake Bay restoration efforts but who do

play a role in terms of contributing to the water quality.

As a result of that and such things as trying to designate a

TMDL for one of the tributaries of the Chesapeake Bay, the Potomac River, we are working jointly with those States that share the

Potomac River. So we believe that as a result of the cooperation

fostered by the Chesapeake Bay program, we will not see the inconsistencies that are occurring in the other parts of the country

with regards to different standards and perhaps different protections for a water resource.

Likewise, with regards to the question of whether the EPA charter is flexible in addressing the Chesapeake Bay concerns, as you

have pointed out, there has been evolution of environmental problems over the years from the command and control approach of

point sources. What we’re finding in the restoration of the Chesapeake Bay is that many of the sources of pollution are not from our

factories, they are from agricultural runoff and sediment erosion

from land use and from air deposition. Twenty-five percent of the

NOx that enters the Chesapeake Bay comes from the air.

The EPA is one of our partners in this Chesapeake Bay restoration, one of our strongest partners, and they have worked with us

in terms of flexible interpretation of their standards and approaches. They are able to apply to the States the flexibility that

we need collectively to protect the Chesapeake Bay.

The second question that I would like to address is what other

improvements should be made with regards to EPA. I will acknowlVerDate 11-MAY-2000 10:31 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00181 Fmt 6601 Sfmt 6601 C:\DOCS\82666.TXT HGOVREF1 PsN: HGOVREF1
178

edge that all the points that were raised by Commissioner Studders

and the other panelists are very valid. We need to look at pollution

and environmental protection in the future from a multipollutant

strategy, from a cross media strategy. We need to look at an entire

facility, not just a single media within a facility. We need to look

more closely at incentive-based approaches. We need to look more

at compliance assistance.

One of the difficulties that we have had with EPA in the past,

when they look at our enforcement record, they only look at the

number of NOVs and enforcement actions taken and not what compliance assistance we have rendered.

You have raised a question with regards to data management.

Yes, more integration needs to occur in data management. One of

the difficulties that we have at the State level, as an example, is

that because everything is media-driven, my agency data base cannot communicate with each other and this prevents us from doing

community-based profiles in addressing such things as environmental justice.

We also need to look at outcome performance indicators, as you

indicated. In the State of Maryland, we have been working with

our regional office, Region 3, to develop a performance partnership

agreement that establishes environmental indicators in exchange

for more flexibility with regards to funding that comes to the

States. And these environmental indicators look at number of wetlands that we restore, the number of lead-elevated children that we

reduced, the reduction of ozone days within the State. So they are,

again, environmental performance indicators.

Which leads me to the final question, and that is whether or not

to elevate EPA. As you have indicated, there are several proposals

before you. One, H.R. 2438, which is the clean bill in terms of elevating EPA; H.R. 2694, which has more in terms of reforming EPA.

While we support aspects of the reform bill in terms of EJ, IT,

and public access, we would urge this committee to pass out the

clean bill, 2438, because we believe that the structural problems

are complex, require further evaluation, and further dialog with

important stakeholders like the States is needed.

I would add that when my agency was elevated to an environmental agency in the mid 1980’s, it was not a perfect solution. Over

the last 15 years I have been before the General Assembly where

there have been reforms in my agency, where certain programs

have been shifted and certain organizational structures have been

made.

I think the important thing is that we need to send a message

to our public, we need to send a message to the world that we believe that environmental protection is on equal footing with the

other Cabinet level responsibilities. I think the public deserves no

less and the time is long overdue. Thank you.

[The prepared statement of Ms. Nishida follows:]

179

180

181

182

Mr. OSE. Thank you, Madam Secretary. We appreciate you coming today.

We are going to go to questions now. Ms. Studders, is it an agency or commission you run? I just need to be clear in my own head.

Ms. STUDDERS. My agency’s name is the Minnesota Pollution

Control Agency.

Mr. OSE. OK. Now, that agency, it is my understanding that your

agency was reorganized here several years ago and that the manner in which you approach the issues before you changed. How was

the agency organized before and how is it organized now?

Ms. STUDDERS. Mr. Chairman, the agency was actually created

3 years before EPA was created. And it was arranged exactly like

EPA is today arranged, which was by media: air, water, land, a

separate financial office, an administrative separate office.

The agency was reorganized in 1998, destroying those media organizations for all of the reasons that each of the panelists have

spoken about today with the second wave environmental issues,

and it was set up to deliver services geographically. Minnesota is

a northern State and we broke the State down geographically and

we dealt with the large communities differently. So if you were a

large community greater than about 100,000 in population, services

were rendered differently to you than in the smaller communities.

What we did originally was try to put every single program out

into that service delivery system, if you will. We also centralized

a planning function, which I think is very critical for planning and

analysis before new rules are promulgated, before a new standard

is set, to have independent staff look at that rule of standard and

see if it was indeed warranted. And we set up another division that

had to do with environmental results. We call it the environmental

outcomes division. And that group created the Minnesota Environment 2000 report which I brought before this committee last year,

and is looking at our indicators quarterly, and produces a report

quarterly looking at what progress has been done.

But I will tell you that it is very difficult to measure environmental progress in a quarter. It very often takes years.

Mr. OSE. Before we leave that, how do you measure it in this report? Do you have specific quantifiers in the report? Or is it subjective? Tell us how you measure it.

Ms. STUDDERS. Mr. Chairman, that answer honestly depends on

the breadth or wealth of the information we may have in the

media. We have much better data on air in Minnesota than we do

on water. I think that is true of most States, but not all. The number of parameters we have monitored air for in this country has

been a finite amount and it is less than a dozen and it is manageable. In the water arena, it is thousands and it is less than manageable. The criteria pollutants are measured. And what we have

seen is a movement of the criteria pollutants coming out of the

Twin Cities, our primary metropolitan area, and extending north

into our area north where our resort areas are. We are seeing deposition issues in those lakes. But we are measuring the pollutants,

I believe, on a monthly basis and then looking at that data cumulatively over years and adding each subsequent month to that information.

183

Mr. OSE. Do you correlate the measurements with changes in the

regulatory regimes? In other words, at such and such a date we

had a measurement of X and we changed our regulation at that

time to address something else? Is there any way to correlate your

regulatory evolution with the empirical data that you are monitoring out in the field?

Ms. STUDDERS. Mr. Chairman, we started doing that last November. We made a structural change to our organization last November, which I think is important I share with this committee. The

district service delivery system was a little flawed in that—I’ll give

you an example. In our main office we have 500 people. In a smaller regional office we may have 50. And to expect 50 people to operate over 50 environmental programs was really, I think, a laudable

goal, but an impossible one. We pulled some of those programs

back into our central Saint Paul office primarily for what we call

our major facilities, those big emitters that have been regulated

under the Clean Air Act, Clean Water Act, RCRA, for 20, 30 years,

and have consolidated the major facilities in one division now and

what we call our minor facilities in a second division.

We still have those regional offices but what we learned in the

course of the last 3 years was that our staff needed different skills

to go out and inspect and enforce a major facility versus providing

some assistance and perhaps actually teaching an entity, like a

farmer that had not been regulated before about the impact his or

her phosphorous and nitrogen was having on that waterway down

the block. And so now our service delivery system is looking at that

skill issue and we actually have different skills in the two divisions

that we ask our staffs to have.

Mr. OSE. I want to come back to this, but my time has expired.

Mr. Otter.

Mr. OTTER. Ms. Studders, in your testimony, you provide us that

you had worked for many years for the private sector and that is

Reliant Energy.

Ms. STUDDERS. Yes, that is true, Mr. Otter.

Mr. OTTER. Tell me a little bit about Reliant Energy.

Ms. STUDDERS. I can tell you that—I think it is important I tell

you this, I worked in the natural gas business originally and went

through a series of seven acquisitions and mergers in my 17-year

career in the energy business and wound up at Reliant Energy. As

that ended, we were doing environmental regulatory work in 13

States and I was primarily involved in negotiations with the different regions of the Environmental Protection Agency, establishing standards and negotiating cleanup scenarios for very large sites

that needed remediation, and then working on air quality agreements as well.

Mr. OTTER. And coming from that sector when you were working

with the EPA, did you find them pretty easy to work with, relative

to your position now as the head of the Environmental Protection

Agency of Minnesota?

Ms. STUDDERS. I think what I would comment on is that I found

working with each region unique. Region 5 is different, different

than Region 7. The expectations in Region 8 are very different than

those in Region 2, and I found that troubling in that to me what

was good in New York should also be good in Texas. But the difVerDate 11-MAY-2000 10:31 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00187 Fmt 6601 Sfmt 6601 C:\DOCS\82666.TXT HGOVREF1 PsN: HGOVREF1
184

ferent regions would interpret the laws differently, and I fortunately worked for a company that said let’s hold ourselves to the

highest standard that one region of the EPA holds us to. So it

made my job easier as I worked with fellow managers to teach

them what standard they needed to comply with. But EPA themselves don’t hold themselves to that same standard.

Mr. OTTER. Was Reliant generally under the auspices of the public utilities commissions of these relative states?

Ms. STUDDERS. Yes, it was.

Mr. OTTER. And so if you had an environmental problem that required a solution within a certain period of time, you needed to, as

you stated in your testimony, you could cost-basis whatever it was

going to cost for another 1,000 cubic feet of gas, what that abatement process was going to cost you in your product?

Ms. STUDDERS. Yes.

Mr. OTTER. And then with that knowledge, you could go to the PUC and say we need an increase from $1.80 up to $1.85 or $1.82?

Ms. STUDDERS. We could, but I will be honest, the people I

worked for asked that I do a more thorough analysis of that, meaning look at different alternatives to grapple with an environmental

scenario and cost that out, and then go to the public utility commission and ask them what they thought. So we did not necessarily

always go in with one solution, we went in with several so that

they could help determine if they wanted that issue addressed or

not because there are different costs.

Mr. OTTER. In that capacity, was Reliant ever fined by the EPA?

Ms. STUDDERS. Reliant has been fined by EPA, yes.

Mr. OTTER. Did you believe that those were justifiable?

Ms. STUDDERS. I will be honest, Mr. Chairman, the fines I’m referring to actually happened to Reliant before I came to work with

Reliant, because I only worked with them the last 4 years of my

career. During the time I was there they did not have any fines

that I’m aware of.

Mr. OTTER. Very good. I operated a plant in northern Minnesota,

a little town called Claxton. I also operated plants in Idaho, Maine,

California, and several other States, and several other countries.

And I have to tell you that we were just as frustrated with the different rules and different—about the time we thought we had it

figured out in one State or in one country and made those accommodations, then we found out because of the inconsistencies between regions that we no longer were doing the proper job.

And quite frankly, selling French fries is not the same as selling

1,000 cubic feet of gas. There is no PUC to go to. You have to go

to McDonalds and Burger King and say we have to raise the price

of your product. We have a problem here. It is not as easily accomplished in the private sector as it is in the quasi public sector that

you talk of. There is no PUC. There is only the consumer. And if

you happen to have been fortunate to have located your plant in

a region which was more flexible, you could cost your product much

cheaper. And if you did not, and your competition did, well, then

actually it was the regulation by your own government that put

you in a noncompetitive position because you happened to locate

your plant in a different State and subsequently in a different region.

185

And so you can imagine what the private sector is faced with

constantly when they have a multiplacement of plants or when

some competition was a little more far-sighted and located in one

of the regions that were more flexible. I will come back to this later

in my second round. My time is up, Mr. Chairman, but flexibility

is one thing that if we are going to establish flexibility, and I appreciate the fact that both of you have spoken to that, we need to

make it consistently flexible. Otherwise, we disenfranchise in the

marketplace and we disenfranchise States, to some extent one

State is required to do something that other States are not. Thank

you, Mr. Chairman.

Mr. OSE. I thank the gentleman. Ms. Studders, Ms. Nishida, I

have a bunch of questions for you also. Just be patient with me.

Ms. Studders, you talked about how you have reorganized or

Minnesota has reorganized to effectively go away from the air,

water, land, to basically—these are my words, not yours—the stationary known air emitters that require major oversight, and then

the smaller ones. You centralized the oversight of the major guys

in an office that had staffing. Now the smaller offices, the satellite

offices, if you will, retained jurisdiction on what emerging types of

industries? I mean, how did you structure this? When you got the

big emitters identified and centralized, how did you handle the

ones that were less than big?

Ms. STUDDERS. Mr. Chairman, the large emitters are primarily

identified by EPA, and the regulatory prescriptiveness to which we

are held to show that we are complying with Federal law as we

regulate them determined who was a major facility. And that’s a

finite group that we could put in that one division.

The second division is everything else. So it is much less tangible

and it will have facilities in it that one could argue will have to

operate under the same prescriptiveness. As an example, a smaller

sized wastewater treatment facility still has to comply with the

Clean Water Act.

But the volume of the discharge and the number of pollutants

they need to test for is much smaller than a major facility is. That

same staff will have to work with a farmer to implement Minnesota’s new feedlot regulations, which also have two sets of rules.

One set of rules is much more prescriptive for a small farmer, to

tell them exactly what to do. And the second set of rules is performance-based, because the large operators with confinement animal feeding operations [CAFO’s] told us they didn’t want the

prescriptiveness, they just wanted the goals they needed to meet.

So we wrote our regulations that way.

Mr. OSE. Has that worked?

Ms. STUDDERS. I would say yes, Mr. Chairman. We’ve had the

regulations on the books since last October, and when I came on

board in February 1999, there was much contention in Minnesota

about our lack of regulation of farmers and if you were even being

too tough on farmers or too weak on them. And I can tell you the

calls and the letters have dropped immensely since we’ve gotten

those regulations in place.

Mr. OSE. Well, let me examine the CAFO thing that you’ve obviously dealt with, because I know that—I’m more familiar with the

hog production in Iowa and cattle production in California than I

186

am with what’s in Minnesota, but the concept is the same, in the

sense that the discharge—I mean, you point out that the critical

piece to the puzzle is what are you discharging at the end of the

day, so to speak? Now, you apparently have taken it toward that

end as opposed to the prescriptive end. Is that correct?

Ms. STUDDERS. With regard to the CAFOs, that is true, Mr.

Chairman, yes.

Mr. OSE. And then you’ve taken that particular approach and expanded it in the satellite offices beyond just the CAFO/AFO situation, but perhaps to some more industrial uses?

Ms. STUDDERS. We are in the midst of doing that, Mr. Chairman.

We are in the midst—we are now issuing permits that are multimedia in Minnesota, and from our perspective in 1996 when Minnesota passed that law giving our agency the flexibility, we were

allowed to start doing those things.

Mr. OSE. Does the stovepiping of EPA, the air, land, water issue,

is that one of our impediments here?

Ms. STUDDERS. Mr. Chairman, it’s a double-edged sword. It is

both an impediment and something that is very valuable, if that

makes any sense.

Mr. OSE. It does.

Ms. STUDDERS. When we made changes to our organization last

fall, we reinstituted what are called media leads. For us to interact

with the Environmental Protection Agency [EPA].

Mr. OSE. Media leaks?

Ms. STUDDERS. Media leads.

Mr. OSE. I’m familiar with those.

Ms. STUDDERS. Not leaks; a lead. We did that because it was

very difficult for EPA to talk to us. They didn’t know who to talk

to, who was in charge of water in Minnesota, because we had perhaps a dozen people handling water in Minnesota. And so we have

both a hierarchical relationship in our State now as well as a lateral relationship.

And to simplify it, I’ll tell you that if we have seven offices, each

of the offices work on water, but there is one person now in charge

of water, so that they have an indirect relationship reporting in to

that individual as they operate their water programs. But they

don’t all report to that person, because as they are out there working in the field—as my fellow commissioner said—air deposition is

very often impacting water; my staff need to be looking at the impacts of air and water together. And if I kept them organized by

air and water, they just weren’t able to do that. It was too difficult

culturally for them to have that interaction. Now they are much

more amenable to having such an interaction.

Mr. OSE. All right. My time is expired. Mr. Otter.

Mr. OTTER. Thank you, Mr. Chairman.

Ms. Nishida, in your testimony you indicated that you lack certain aspects of Mr. Horn’s legislation which called for the establishment of a statistics bureau and creates an independent bureau

within the EPA dedicated to environmental statistics. Is this something that you support, even though you indicated that you prefer

the clean bill? But if in the restructuring of the EPA we were to

establish that kind of a department, would you have a little more

belief in the information that you get from EPA?

187

Ms. NISHIDA. I think as you have heard this morning, managing

data is one of the challenges that EPA has, along with the States.

And so I think by creating a bureau of statistics or however we

name that bureau, we would assist States in being able to assure

more complete and accurate data. So to that extent, yes, I think

that this would be an improvement with regards to looking at the

structure at EPA.

The question that I was pointing out was that some of the other

provisions in the reform bill are more complex and may require

more careful evaluation before proceeding and therefore might

delay the elevation of EPA.

Mr. OTTER. Do you think it would be more advantageous for a

Cabinet-level EPA Director to make those kind of important structural changes? Is the EPA director stopped from doing that now because she doesn’t have Cabinet-level position to make those

changes?

Ms. NISHIDA. No. I think it would be hard for me to say that the

EPA Administrator is prohibited now from doing that because she

doesn’t have the Cabinet-level status. I think what is important to

point out that in her ability to interact with other Cabinet-level

agencies, she needs to have the same level playing field.

And I’ll just give you one example. In the area of air quality regulations, she has to interact very closely with the Department of

Energy and the Department of Transportation. What we have

found at the State level, that some of the changes that are now

being considered in air quality protection and statutes, EPA doesn’t

necessarily have the same level playing field and the same access

to the information and to the decisions that we think that a Cabinet-level status might afford her. And as I mentioned, most of the

States in the country have Cabinet-level environment departments.

Certainly Minnesota and Maryland are two of them.

Most recently, at the last ECOS meeting, which is the environmental commissioners across the country, they supported a resolution where the State commissioners recommended to Congress to

elevate EPA. So this is something that is important, I think, at the

State level to give the Administrator that equal footing.

Mr. OTTER. The term ‘‘interaction,’’ I’m a little confused by that.

One of the other committees that I serve on is the Transportation

Committee, and the subcommittee that I serve on, that has to do

with water and also with pollutants, air pollutants. We’ve got a

turnpike in New Jersey that is 6 years yet to be built because the

EPA has not permitted it. We’ve got a bridge in Tennessee that’s

about the equal number of time. I’ve got a stretch of highway in

my State that kills 34 people a year that we’ve not been able to

go forward with on construction because we haven’t gotten the EPA

permit.

What kind of interaction are you talking about? I mean, they can

deny the permit. We can’t go forward with the construction in

transportation.

Ms. NISHIDA. Well, again, certainly I’m not suggesting that there

isn’t communication between a Cabinet-level agency and an agency

like EPA. What I’m suggesting, though, that on some of the important policy issues that are before this Congress in terms of what

new steps that this country needs to move toward in terms of air

188

quality initiatives that you have heard about recently like the

President’s Clean Skies Initiative—that those are the types of

issues that we believe from a State perspective, that EPA should

be on a level playing field, on equal footing with the other Cabinet

agencies, because the environmental aspects of those policy decisions are critical and need to be considered in that equal footing.

Mr. OTTER. I understand that, but I’m also, I guess, concerned

and maybe perhaps a little confused when you overlay the Clean

Skies with the Jobs Initiative and you see that we’ve got over $14

billion in highway projects that are being held up that could put

over 400,000 high-paying jobs to work in this country, and they’re

being held up because of one of the three environmental considerations.

And the question is, are they dealing with true science? There’s

a conflict between the two that is greater—and not necessarily that

the two goals can’t be achieved, but right now it appears that they

can’t be achieved. And so whether it’s agreements or whether it’s

ability to sit at the same table and make these kind of decisions,

I would hate to arrive at a structure, whether it’s at the Cabinet

level or what, that makes it worse.

Ms. NISHIDA. Well, I think you raise the issue of the dichotomy

between economic development and environmental protection. And

like you, I know that we can achieve both goals. They don’t need

to be mutually exclusive. They don’t need to be necessarily adversarial in terms of their outcomes. And Congress has passed a law

that requires that any transportation project, whether it’s a highway project or a transit project, be able to conform with the Clean

Air Act that you have also passed. And as a part of the responsibilities that EPA has to assure transportation and clean air conformity, they have had to take a close look at some of these transportation projects. I’m not familiar with the one, obviously, you’re referring to. I can tell you that with regards to the transportation

projects in the State of Maryland, we work very closely with our

transportation counterparts. We work very closely with EPA in trying to resolve the conformity issue, because it is a very complicated

and difficult issue to resolve. But I think that the fact that I’m a

Cabinet-level agency gives me the greater ability in terms of dealing with my transportation colleagues. That’s not to say that I

want to put an obstacle to any transportation projects. We just

have to understand what the environmental impacts are so that

when we submit our State implementation plans to EPA to meet

the Clean Air requirements, there is conformity.

Mr. OTTER. I understand that. Mr. Chairman, in the second

round, I will come back and I will wonder out loud why the EPA

took Maryland’s Clean Air standards back and is now operating

your Clean Air.

Ms. NISHIDA. I can answer that.

Mr. OSE. I thank the gentleman. Ms. Studders, it’s clear that you

and the Governor of Minnesota are certainly trying to innovate in

how you address these challenges we face, and I admit to significant admiration for your efforts. How frequently do you seek to innovate? I mean, is it an ongoing process?

Ms. STUDDERS. Mr. Chairman, innovation is a tool that we’re trying to foster within our staff, just like enforcement is a tool, just

189

like writing a permit is a tool. I think what is interesting is that— I really do believe Minnesota has been an environmental leader in

this country, and I think part of it is the pristine lakes we have

in the Boundary Waters Canoe Area, and just the value that Americans place on that sort of real estate.

The innovations start at the States, and Minnesota was one of

the prime States that pushed for the Environmental Council of

States to negotiate the agreement that the GAO talked about in

their report that I read last night, between the States and ECOS.

That was Project Excel, one of the agreements that we were trying

to help fix that had been passed.

I can tell you, Minnesota has similarly been very disappointed

with the amount of hours we have put of staff time into innovations and for the lack of a result that’s better.

Mr. OSE. What kind of obstacles have you run into?

Ms. STUDDERS. When we sit down and work with companies that

want to innovate and sit down with regional EPA, it’s not uncommon to put 1,000 hours of staff time into talking about doing something; yet the permit is not even issued.

Mr. OSE. Is it a conflict between a culture that relies on a prescriptive mandate versus a culture that looks at an outcome?

Ms. STUDDERS. Mr. Chairman, very much so. If you look at the

Clean Air Act as an example, it’s very prescriptive of how to protect

the environment. It’s not prescriptive as to what the goal is.

Mr. OSE. But those standards of how to protect the environment

were written in 1971 or 1972. Is that one of the problems we have

here?

Ms. STUDDERS. Mr. Chairman, I believe the Clean Air Act was

actually amended a couple of times.

Mr. OSE. Well, the amendments that—we’ve had some amendments in the early nineties, for instance.

Ms. STUDDERS. Yes, I believe so; and that’s why Minnesota wrote

the Innovations Act that allowed us to not follow that

prescriptiveness, so long as we were meeting the same CAA goals

and allowed that to happen. I can tell you that we could not even

have experimented with Project XCel if our State legislature had

not passed that statute.

Mr. OSE. Now, I’m told that in the past year or so, you haven’t

sought any EPA approval of innovative programs at Minnesota. Is

that accurate?

Ms. STUDDERS. What I would believe is accurate—it’s yes and no.

We have two that we have further pursued, one with the Anderson

facility and another with—I apologize. I believe it’s an IBM facility.

I may have the wrong name, but we have not tried anything else.

That is correct.

Mr. OSE. Why not?

Ms. STUDDERS. Because the amount of stakeholder time and the

amount of staff time, in my mind, it’s not cost-effective. And I’m

probably the first MN commissioner that’s saying, how cost-effective is this?

Mr. OSE. So someone at the State may vet a program, or a proposal, more accurately, that gives a better environmental outcome

in terms of level of emissions or pollutants that are put into the

environment than the current prescriptive mandate.

190

Ms. STUDDERS. Yes.

Mr. OSE. And the State of Minnesota has elected not to pursue

that because the culture, if you will, at EPA doesn’t seem to be

very receptive to that?

Ms. STUDDERS. Mr. Chairman, I wouldn’t be quite that broad.

Minnesota still has its innovation statute on the books, and I have

not asked that the legislature remove that by any means. We are

operating under that statute with respect to several permits that

we did successfully get through, where the State was able to make

those decisions with delegated authority. But to the extent where

we have to involve EPA, our success record has not been very good.

Mr. OSE. So once you get into an area where there’s no clear delegation of authority, that’s when you tend to bog down; when

there’s a prescriptive element to any consideration you’re making,

there’s little flexibility provided?

Ms. STUDDERS. Mr. Chairman, that is correct. And in fairness,

we very often can get the flexibility at the region, and then we get

stuck at headquarters.

Mr. OSE. So the region might sign off on it, but then when it goes

up the chain you get resistance?

Ms. STUDDERS. The closer you get to headquarters, the more

you’re involved with media management and very much the silos.

Mr. OSE. The stovepipe issue?

Ms. STUDDERS. Yes.

Mr. OSE. One of the things that occurs to me in listening to your

earlier testimony is that you reengineered—these are my words,

not yours—you reengineered your stovepipes in an effort to expedite this innovative process that you’ve created in Minnesota. It almost seems as if you reengineered to, frankly, more effectively deal

with stovepipe challenges you face not the regional level but the

national level. Am I accurate?

Ms. STUDDERS. I would say with our recent change, that is accurate.

Mr. OSE. OK.

Ms. STUDDERS. For point of information, I think it’s important to

understand—if I could, Mr. Chairman—if we can’t interact with

EPA well at the State level, we stand to lose a significant amount

of Federal funding.

Mr. OSE. I understand.

Ms. STUDDERS. And in fairness to EPA, if we aren’t organized in

a way that can somehow interact with their existing structure, it

does get to be problematic.

Mr. OSE. The situation I’m most familiar with—and this may be

the case up around Minneapolis, St. Paul—is that there is a mandate in terms of what can go into automobile fuel, even though industry tells us now that they can accomplish a more efficient outcome if they’re allowed to use a different chemical or manufacturing process. And it’s this kind of innovation that I want to find a

way to encourage, as opposed to frustrate. It’s outcome-based rather than legislatively mandated, and that’s the thing I keep driving

at with Minnesota’s success.

I’m trying to figure out how to, frankly, push that up the chain

rather than have things sent down the chain. So I appreciate you

coming.

191

Ms. Nishida, I want to go to Maryland’s experience. I’ve particularly followed the Chesapeake Bay program, and I’m highly complimentary of that. I do want to enter into the record the short synopsis that I have here about the agreement between the States and

EPA. I do want to note publicly that the signatories to this document dated December 9, 1983 are the Commonwealth of Virginia,

the State of Maryland, the Commonwealth of Pennsylvania, the

District of Columbia, United States of America, and the Chesapeake Bay Commission. So we’ve had for roughly 20 years some

evidence of an ability to interact successfully in a manner that

leaves EPA, as I read this document, leaves EPA as the Chair of

the Chesapeake Bay Council. Is that accurate?

Ms. NISHIDA. No. What happens is—Mr. Chairman, the Chair rotates every year. And so this year it is Mayor Williams of the District of Columbia who was nominated by his peers to be the Chair

of the Chesapeake Bay program.

Mr. OSE. The balance is accurate, though?

Ms. NISHIDA. Yes. The bay agreement that you’re referring to is

the one in 1983. Most recently, there was an agreement last year

that set even higher goals with regard to our commitments, and actually set very ambitious goals that we are working now to achieve.

Mr. OSE. Briefly, if you would, summarize those goals. Are they

empirical in nature, or are they——

Ms. NISHIDA. They are empirical in nature. One goal is in terms

of wetlands. The Chesapeake Bay States have agreed to restore

25,000 acres of wetlands in the Chesapeake Bay area. Another goal

is that we are going to reduce the negative impact of sprawl by 30

percent, I believe. I might have that exact percentage in error, but

as you can tell from those two examples, they are empirical goals

that the public can hold us accountable to.

Mr. OSE. All right. Is that a dynamic program? In other words,

you say this was adopted last year.

Ms. NISHIDA. Yes.

Mr. OSE. Do you periodically review it and update it?

Ms. NISHIDA. Yes. It is a very dynamic program in which new

goals are set. For instance, one of the goals that was originally set

was that we were going to reduce the amount of nutrient pollution

into the bay by 40 percent. That was to occur in the year 2000. We

are now reevaluating that commitment, trying to understand

whether we need to set new goals with regard to nutrient reduction

and, as I alluded to, set new and different goals with regards to

resource protection or land use.

Mr. OSE. How do you get the science to determine what the goal

should be?

Ms. NISHIDA. We have a scientific advisory committee that is

chaired by some of the eminent scientists within the region, and

they essentially advise what we call the principal staff committee,

which includes the Cabinet secretaries from amongst the region.

They will make recommendations with regards to some of the scientific background and goals that the States should then set, and

then we—it’s our obligation to develop strategies to meet those

goals. So there’s a science and technical advisory committee that’s

created by the Chesapeake Bay program.

192

Mr. OSE. So the science and technical advisory committee will

look at the bay as a whole and say, all right, our analysis indicated

that we’ve got a problem here, here, here and here, and those may

be different media, obviously different geographic areas. Does the

science and technical advisory panel also make a recommendation

as to the priority with which the Chesapeake Bay program should

proceed?

Ms. NISHIDA. They do make recommendations with regards to

priority areas that need to be addressed. One of the things that we

have found over the years is that the Chesapeake Bay program is

very comprehensive. It started out originally as a water pollution

problem and had a water pollution focus. But in the last agreement

I just referred to, there are goals on air pollution, there are goals

on transportation, there are goals on brownfields.

And so we have now, since the evolution of—since 1983, gone to

the other media, and it is truly a much more comprehensive approach. It’s not just a watershed-based approach, though it is primarily water-based focused.

Mr. OSE. And EPA signed off on this?

Ms. NISHIDA. Yes, and EPA has signed off.

Mr. OSE. How is it that—I don’t know how to put this delicately

so I’m not going to try. How is it that you’ve been able to succeed

in achieving, if you will, some cooperation on this, frankly, comprehensive approach, and yet Ms. Studders has some difficulty in

creating the same kind of innovative approach in Minnesota?

Ms. NISHIDA. Well, not knowing enough about, obviously—— Mr. OSE. I mean, we may very well compare you to Minnesota,

but I don’t want to jeopardize Ms. Studders’ job.

Ms. NISHIDA. Right. Well, let me, I guess, describe what we think

are the features that created the success with regards to the

Chesapeake Bay program. One, we had the commitment from the

highest levels of government, as you can see, and that document— it is the Governors who signed the agreement.

Second, when the agreement was signed, all of the measures

were voluntary, so that some of the goals that were to be achieved

were going to be achieved through voluntary measures. What has

evolved is we’ve realized it has to include a mix of regulatory measures.

The third thing is that even though we set an overall goal for

restoration of the Chesapeake Bay, each individual State can adopt

their own individual strategies, so it’s not prescriptive to the States

in that sense. Maryland and Virginia take very different approaches to land use. We have a land use goal, but each State can

meet it according to its own approaches.

And then the fourth thing I would say is the very active involvement we have with our stakeholders. I mentioned the scientific

community. We have also actively gone out to the regulated community—to the industry. We have businesses for the bay, which includes our chemical manufacturers. We have farmers for the bay.

We have even, most recently, a homebuilders signed agreement to

address the commitments in the Chesapeake Bay program.

And so I think that, again, unprecedented level of cooperation,

both at the government as well as the private sector, has contributed to our success.

193

Mr. OSE. My time is expired. Mr. Otter.

Mr. OTTER. Ms. Nishida, when we left last, I had said that I

would come back to you with a thought out loud about the EPA

having to take over Maryland’s air program. Why did that happen?

Was Maryland not meeting these standards?

Ms. NISHIDA. No. I’m glad you raised that. That’s the title V program. What happened was EPA determined there was a deficiency

in our title V program. The deficiency did not have anything to do

with the air quality and protections of our regulations. Rather, it

had to do with a legal issue of citizen standing. The Maryland citizen standing law is much more restrictive than the Federal Constitutional protections for citizens in terms of access to court. So

EPA advised us that we had to correct that deficiency.

We actually went into our legislature a number of times to correct environmental standing. Unfortunately, we were met with a

lot of opposition from the business community, who were afraid of

increased lawsuits as a result of having the broader standing. And,

frankly, we were actually glad that EPA took the program back, because now as a result of that, the business community for the first

time testified this January in our legislature in support of expanded standing, because they did not want to have to go to Philadelphia to get their permits.

Mr. OTTER. I understand that. We, I guess, had something like

that happen to us similarly in Boise, and it is unfortunate, but you

know when the question comes between the individual’s Constitutional right, I don’t think that ought to be diminished in any way.

And having been a businessman, you know, I know how tough that

can be.

So perhaps with some of the tort reform that we have engaged

in and what we’ve already passed in the House—and Lord knows

what’s going to happen to it in the other body—but perhaps we can

correct some of that, while not diminishing the Constitutional

standing of the individual in favor of anybody else, including the

government. Hopefully we’ll be able to go forward with that.

Has the EPA ever taken over any other program, solid waste or

water?

Ms. NISHIDA. In terms of the State of Maryland, no. That was

the first program that we lost delegation for, and unfortunately we

had the dubious distinction of also being the first State in the country of losing title V delegation. But our hope is, because the legislation has now passed, though it hasn’t come to the Governor’s desk

for signature yet, that we can get the program yet. We have not

lost anything else.

Mr. OTTER. So because of the legalism rather than the presence

of any problem that was going to endanger the environment, you

lost the title V; is that fair?

Ms. NISHIDA. That is fair.

Mr. OTTER. So that is not something that you would correct or

try to find some sort of arbitration method for establishing a program where that didn’t happen again?

Ms. NISHIDA. No. We have found, at least in our region, where

we have had difficulties with regards to program delegation, that

we have been able to work it out with the region satisfactorily, so

that we’ve been able to retain the programs.

194

Mr. OTTER. During your testimony, you spoke of the Chesapeake

Bay, and I have to tell you when I first came to Congress—and I’ve

only been here a few months, I guess 14 now, 15.

Mr. OSE. Seems like yesterday.

Mr. OTTER. Seems like yesterday. That one of the first gentlemen

I met was a fellow by the name of Wayne Gilchrest. And Wayne

had made a statement in the Transportation Committee that I was

really concerned about. And I talked to him about it, and I said,

I want to make you a deal, Wayne. I won’t make any decision that

adversely affects Maryland without talking to you. It doesn’t mean

I’m going to vote your way necessarily. And you won’t make a decision that adversely affects Idaho without talking to me first. And

you don’t have to vote my way; just listen to my argument. I ended up voting for the Chesapeake Bay, I think it was $350

million for the Chesapeake Bay cleanup, simply because of that

agreement with Wayne.

And, you know, I hope that’s the kind of cooperation that I hope

will continue for me in this Congress, because so many times we

try to do things in our own States and within our own little world

that can adversely affect anybody else. And this inconsistency that

we have coming from the EPA, Wayne and I have since had many,

many opportunities to talk about things that are happening in

Idaho.

For instance, 3 years ago, we burned 880,000 acres of forest, and

that’s all on the watershed, and all of that water—and ostensibly

we weren’t allowed to go in and harvest or thin that forest on a

sustainable yield, sustainable cut basis, because we would have degraded the watershed.

I have since asked the EPA if they will make an environmental

assessment of whether we do more damage to the watershed by

burning it or do more damage to the watershed by going in and selectively harvesting it. And, by the way, Wayne is not fully my way

yet, but he’s coming my way.

It is fortunate that States like Maryland have been able to work

out a cooperative agreement on an important water body like the

Chesapeake Bay, because it truly is a national treasure and something that we all ought to be concerned about. But I would have

to tell you, if I hadn’t had the opportunity to talk to Mr. Gilchrest,

I probably would not have voted for that bill.

Ms. NISHIDA. Well, we are obviously very proud of Congressman

Gilchrest. He is our strongest advocate in the State of Maryland

and obviously here on Capitol Hill, and so I will certainly pass on

your comments to the Congressman.

Mr. OTTER. It doesn’t change the fact that he can be a pain in

the tree stump sometimes, but he’s a great guy.

Ms. NISHIDA. Me, too.

Mr. OTTER. Thank you. Thank you, Mr. Chairman.

Mr. OSE. Wayne did that to you, too? I have to give Congressman

Gilchrest credit. He is quite an operator up here. He did that same

little dance with me, too. And I do enjoy working with Wayne.

On the screen over here—you probably can’t see it very well—

but that is a chart of the organizational structure in the executive

portion of the EPA under this and past Administrators. There are

22 direct reporters to the Administrator. The reason I put that up

195

there is that I keep coming back to this issue of why is it that we

can make something happen in the Chesapeake Bay that has been

so clearly beneficial to the environment and the surrounding

States, and we have such difficulty in a different region in making

the same kind of thing happen.

I’ve asked questions earlier, to the other panel in particular,

about the various bills before us and whether an office of science,

or office of implementation, or an office of enforcement are appropriate levels of management to basically collect and reconcile these

decisions.

Now, Ms. Studders, you said earlier, in response to a question on

innovation, that it’s very frustrating from your perspective in terms

of staff and the like to pursue these things.

Ms. Nishida, you indicate that last year the Chesapeake Bay program was updated to reflect a significant evolution in what its objectives were and that EPA signed off on it. Those are two diametrically different messages I’m getting here. And I’m trying to figure

out structurally, is the problem in the structure where you have

different regions who take different approaches? I mean, what is

the impediment here? Ms. Studders.

Ms. STUDDERS. If I can, Mr. Chairman—— Mr. OSE. You need to turn on your microphone.

Ms. STUDDERS. I’m chomping at the bit here to tell you something, and I would draw this parallel: I think that Secretary

Nishida’s example is a good one of a success. I don’t want to leave

you with the impression that Region 5 or Minnesota is not capable

of similar success. Please. I believe the Great Lakes are being handled exceptionally well. We have eight States involved. I think

there are five States in Chesapeake Bay—four.

When you get multiple States involved, there’s power in numbers

at the State level. And when there’s multiple States involved, I

really do think EPA has come to the table a little differently, and

I think part of that is because you have to go pretty high up at

EPA when you’re dealing with multiple States. I think we’re managing the Great Lakes exceptionally well, considering they too are

a treasure, and we’re sharing them with an international partner,

and I believe we have eight States around the Great Lakes.

A similar successful example I would cite is down in the Gulf of

Mexico where we were dealing with the hypoxia down there. I’m

honored to serve on the congressional task force, but I can tell you

it’s a very different relationship when there’s multiple States at

that table.

Mr. OSE. For what purpose, though? Why should that be different?

Ms. STUDDERS. I think it’s pretty simple. I think when you’re

dealing with a permit with one State, you’re dealing with an individual at EPA and that individual’s supervisor or manager, and

they’re typically in a media-led program, and there’s a right or

wrong answer, primarily because they’re concerned about litigation

and having something upheld in court.

I think when you’re dealing with a much more policy-orientation

about how are we going to manage this resource and what sort of

goals we should set to improve the quality of this resource, you’re

doing it much more methodically, much—very differently than the

196

Clean Air Act or the Clean Water Act, and you’re applying normal

management skills to a problem.

The issuance of permits and enforcements aren’t normal management skills. They’re very prescriptive output-measured ways of

doing things.

Mr. OSE. Ms. Nishida, do you want to add anything to that?

Ms. NISHIDA. Well, I guess I would agree with my commissioner

with regards to the two different aspects to interacting with the

States and the structure that’s before you. When you are dealing

with a specific industry or a specific permit or enforcement issue

and there are disagreements amongst the States, it’s much harder

to resolve. That is, even though we are obviously very successful

with regards to our commitment to restore the Chesapeake Bay as

a resource, as I mentioned, we were all left to our own devices in

terms of how we protect that resource.

What it comes down to, I guess, is sometimes in individual permit issues, Maryland may take a very different approach than Virginia EPA has to come in and then negotiate this, and that is not

always easy with regards to resolving a very specific permit issue

or enforcement issue.

Mr. OSE. But you’ve proven that it can work?

Ms. NISHIDA. Well, we have proven that it can work, as I mentioned, in terms of broad goals that we are trying to address. As

I mentioned—take, for example, the wetlands goal in terms of

restoring——

Mr. OSE. 25,000 acres.

Ms. NISHIDA. The 25,000-acre goal. We may, in Maryland approach that from a regulatory standpoint. In other words, we may

choose to impose more prescriptive regulations to get the 25,000

acres. Virginia may take a more incentive-based approach to do

that.

What I guess the strength of the Chesapeake Bay program has

been is, you have outcome goals that you prescribe for each individual State, but you let the individual States prescribe how you’re

going to perform those outcomes. And I think the more that EPA

tries to prescribe outcomes on States, that’s when you run into

more of the difficulty.

Mr. OSE. You said that far more eloquently than I have been able

to say that yet this morning.

Mr. Otter.

Mr. OTTER. Ms. Studders, in your answering a question to the

chairman during this last go-round of questioning, you indicated

how much easier it was for five States to get together, or, I should

say, how much easier it was to get something, some reaction from

the Environmental Protection Agency; because several States get

together, and that’s precisely the reason when we write a memo to

the chairman, we get as many other of our colleagues to sign that

as we possibly can, to say that this is not just one individual.

Now, let’s take that from there to the private landowner or the

private citizen, the private farmer, that you mentioned earlier. You

know, for Archer Daniels Midland, or for some company like that

to file for an environmental permit because they want to do something on 40 acres is much, much different than for the mom and

197

pop that own that 40 acres and that’s their equity, that’s their livelihood, that’s everything.

And I don’t know if you’ve ever filled out a—is it a 404 national

permit? Have you ever seen those 404 national—on wetlands? But

to ask mom and pop to sit down at the breakfast table and to fill

that thing out is absolutely impossible. And what’s even more frustrating is when they call you and they say, Congressman, we went

down to the local EPA and we went down to the local Army Corps

of Engineers folks and asked them to do it, and they said we had

to go hire somebody for $182 an hour. We had to go hire an environmental engineer to do that.

If we’re truly the servants of the people, why is it that we don’t

engage in the EPA, folks like we do in the IRS, and some now in

the IRS; because if you walk in and you’ve got a major tax problem,

they assign somebody to sit down, and they don’t charge you, and

they guide you through the process so that you can fill out something as important every year as your tax return.

Why can’t we do that for folks with a 404 national permit so that

they can dig an irrigation ditch on their property or so that they

can build something on their property? Why don’t you get those

five States together and go to the EPA folks and say, why don’t you

simplify the permit so that it’s a one-page thing and mom and pop

can sit down at the breakfast table over a cup of coffee and have

some sort of control over their life and their property?

Ms. STUDDERS. Mr. Chairman and Mr. Otter, I will see if I can

do justice to that very well-worded question. I’m going to try to

simplify it, because I think that’s part of the core of what we’re all

grappling with in how we improve environmental protection in this

country with limited resources.

The world of pollution has changed in America. And I can quote

you the Minnesota statistics, not the national, so I’ll keep it to my

home turf that I’m much more familiar with. I won’t use the 404

form per se, but I’ll say when the regulations were written to create such a document, most of the air pollution and the water pollution was coming from large big sources, corporations, factories with

many employees and very complicated equipment, and it was appropriate to start ratcheting down the emissions coming from that

equipment.

In Minnesota, to give you an example, it was primarily our air

pollution and our water pollution. Those complicated forms, they

probably had an environmental engineer on staff who understood

and actually operated that equipment and could fill it out. That’s

what the laws were written for.

Thirty years later in Minnesota, we have a very different story.

Air is almost 50–50. It’s 43 percent coming from our regulated

businesses and 57 percent coming from things I can’t even regulate, that the Clean Air Act doesn’t touch—automobiles and energy.

That’s where our air pollution is coming from. It’s not coming from

the points that I regulate.

Water, it’s much more disparate. Only 14 percent of our water

pollution in our State is coming from the factories where we regulate their discharge from the pipes, from the wastewater treatment

facilities, and from the businesses that are treating their water before it’s discharged. We’re the land of 10,000 lakes and we do not

198

have an ability to get our arms around 85 percent of the water pollution in our State with the existing Clean Water Act!

The way we have chosen to start remedying this in Minnesota

was, we took the feedlot issue first. We are primarily an agricultural State. Our main source of revenue is agriculture, and we’re

very proud of our farmers. And we started inventorying our farms.

We estimated that we had 80,000 farms in Minnesota. January of

this year, we received applications for feedlots numbering 40,000,

and we know we have not had the entire regulated community— we probably come in about 50 percent. We created a general permit, which the Clean Water Act does allow us to do and the Minnesota comparable law does, and we’re issuing general permits to

small farmers, a very simple form. He or she can sit down at the

breakfast table and fill that form out with their spouse.

If you’re a large CAFO in Minnesota, you’re filling out a much

more detailed form as prescriptively regulated by the Clean Water

Act, but we feel you’re capable of doing that. If you’re Archer Daniels Midland, you have people on board that understand the ramifications of a facility of that size and understand how to operate a

facility of that size responsibly and can fill that out. So we’ve handled it very differently.

Mr. OTTER. Thank you, Mr. Chairman. Thank you.

Mr. OSE. I have nothing further.

I want to thank our witnesses today. We’re going to leave this

record open for 7 days. We have some questions that may arise

here as we think about this over the next 24 hours. We’d like your

cooperation if we send them to you, to have a response in writing.

We stand adjourned. Thank you both for coming.

[Whereupon, at 12:12 p.m., the subcommittee was adjourned.]

(199)

EPA CABINET ELEVATION: AGENCY AND

STAKEHOLDER VIEWS

TUESDAY, JULY 16, 2002

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 3:05 p.m., in room

2154, Rayburn House Office Building, Hon. Doug Ose (chairman of

the subcommittee) presiding.

Present: Representatives Ose, Duncan, Otter, Cannon, Tierney,

Waxman, and Kucinich.

Staff present: Dan Skopec, staff director; Jonathan Tolman, professional staff member; Yier Shi, press secretary; Allison Freeman,

clerk; Greg Dotson, Elizabeth Mundinger, and Alexandra Teitz, minority counsels; and Jean Gosa, minority assistant clerk.

Mr. OSE. Good afternoon and welcome to today’s hearing of the

Subcommittee on Energy Policy, Natural Resources and Regulatory

Affairs. The subject today will be EPA Cabinet Elevation: Agency

and Stakeholder Views.

Mr. Waxman has come in and Mr. Tierney will be back shortly.

The issue of elevating EPA to Cabinet level status has been

around since the day after the Agency was created in 1970. In the

years since its inception, Congress has passed numerous environmental statutes expanding the jurisdiction of the EPA. As its jurisdiction has expanded, the Agency has grown as well. Today with

more than 18,000 employees at work, EPA has an annual budget

of $7.5 billion.

It is important to note that elevating the EPA to a Cabinet level

department will not in and of itself change the Agency’s size, jurisdiction, or effectiveness. The act of creating a new Cabinet level department is largely symbolic. The important thing is how and why

Congress elevates the EPA, as it may fundamentally affect not only

how the EPA operates, but also perceptions of the agency and the

importance of environmental issues.

Two bills have been referred to this subcommittee to elevate EPA

to a Cabinet level department. The first, by Representative Sherry

Boehlert, is H.R. 2438 and the other is by Representative Steve

Horn, H.R. 2694. The bills take radically different approaches. One

offers no reforms to the Agency and the other offers a multitude

of reforms. The principal question facing our subcommittee at this

hearing is what, if any, reform should Congress explore in the process of elevating EPA to a Cabinet level department?

200

At our first hearing in September, we heard from the sponsors

of the elevation bills. In addition to them, a number of policymakers from the academic community testified about whether elevation should proceed with or without certain legislative reforms.

At the second hearing last March, we heard from EPA’s IG and the

General Accounting Office. Both identified numerous organization

and management challenges faced by the Agency. In addition, we

heard from State Environmental Protection Agency heads. Most of

our major environmental laws are delegated in some fashion or the

other to the States. State agencies are not only the work horses

when it comes to environmental protection, but are also innovative

leaders. This as yet unchallenged assertion begs any number of

questions, some of which I hope to get to today.

When EPA was created in 1970, this country faced widespread

and daunting environmental challenges. We have made great

progress in the cleanup of large industrial pollution that plagued

our Nation 30 years ago. Many of the pollution problems we face

today come not from large industrial sources but from the actions

of every day citizens, from our cars, our yards, our homes, our cities, and our farms. These are more complex and intractable concerns that seem to defy the simple solutions mandated by the first

wave of environmental laws.

While elevating EPA to a Cabinet level department is an important gesture, it is clear that more flexible and innovative approaches are needed to find solutions to the second wave or second

generation of environmental problems, not just for the problems we

face today, but for the environmental problems that we will undoubtedly face in the future.

By 2025, the population of the United States is expected to reach

more than 335 million people. That means we will have 50 million

more people than we have now. Think about the amount of food,

water, housing, and energy consumed by an additional 50 million

people. It understates the case that this could put a strain on our

environment. If we are to prepare for these changes, we must begin

to think about different approaches to environmental regulation.

The old command and control approach won’t get us where we need

to go. It is largely inflexible and some of the compliance costs are

excessive. The time has come for us to look at innovative ways to

manage our environment. High standards of environmental protection are a must, but individuals must have the flexibility to meet

those standards in new ways. Government bureaucrats should not

be environmental bean counters but instead, environmental managers. The goal should not be the number of permits issued or the

amount of money spent, but rather, the ultimate result which is a

cleaner environment.

While we do face some daunting problems, there are some reasons to be hopeful, areas where environmental innovation and experimentation have worked. For example, the 1990 Clean Air Act

amendments, in which many of my colleagues on this panel participated, introduced the novel concept for controlling sulfur emissions

from powerplants. Instead of requiring specific clean technology at

every plant, sulfur emissions were capped as a whole for the whole

country. Powerplants were forced to either reduce their own emissions or buy credits from other plants that were in fact reducing

201

emissions even further than they were required. At the time, environmental economists predicted this would be a more efficient way

to reduce pollution and in fact, the program was even more successful than had been predicted, with powerplants reducing sulfur

pollution even more effectively than anyone had thought.

To its credit, this administration has seen the success of such

emissions trading programs and is seeking to expand them. The

administration’s Clear Skies Initiative seeks to expand air emissions trading beyond merely sulfur emissions. In addition, EPA recently proposed a water quality trading policy that promotes the

use of pollution reduction credits for trading in watersheds.

As our committee looks at elevating EPA, we want to ensure that

the Agency has an organizational and management structure that

allows such successful, innovative environmental policies to be the

rule, not the exception. Today’s witnesses include the Administrator of EPA, Governor Christine Todd Whitman; the chairman of

the Council on Environmental Quality, Mr. James Connaughton;

the president of Environmental Law Institute, Mr. J. William

Futrell; vice president for Environment and Regulatory Affairs,

U.S. Chamber of Commerce, Mr. William Kovacs; and a senior fellow for environmental economics, Natural Resources Defense Council, Mr. Wesley Warren.

[The prepared statement of Hon. Doug Ose follows:]

202

203

204

205

206

207

Mr. OSE. I would now like to yield to my friend from Massachusetts for the purpose of an opening statement.

Mr. TIERNEY. Thank you, Mr. Chairman.

I am going to submit my statement for the record and allow the

witnesses to testify.

I would simply say I hope we can move the EPA up and elevate

it to the status I think it deserves and warrants. I would note the

Congressional Research Service found that of 198 governments

worldwide, all but 9 include their environmental agency at the

administerial level. I am hoping we will be able to do that with a

clean bill and not get bogged down on the internal machinations

of how the Environmental Protection Agency works.

With that, I yield the balance of my time and submit my statement for the record.

[The prepared statement of Hon. John F. Tierney follows:]

208

209

210

211

212

213

214

Mr. OSE. The gentleman’s statement is accepted for the record

without objection.

The vice chairman of the subcommittee, Mr. Otter.

Mr. OTTER. No.

Mr. OSE. My good friend from Los Angeles and Beverly Hills, Mr.

Waxman.

Mr. WAXMAN. Thank you very much, Mr. Chairman. As a result

of redistricting, it is Los Angeles, Beverly Hills, and many other

cities.

I am pleased to see Administrator Whitman here today.

I have long supported the elevation of EPA to a Cabinet level department because of the great importance of its job and the respect

I have for the EPA staff. The American people should take pride

in the performance of this Agency over the last decade. Most of the

staff at the EPA are professionals who care deeply about their

work. These government employees have chosen their careers because they want to protect public health and the environment.

Over the past decade, they have had a long list of successes.

In the 1990’s, EPA worked with industry, the States, and environmental groups on initiatives such as updating health-based air

pollution standards, attacking powerplant emissions, cleaning up

automobiles and diesel engines, and finally, working to clean up

the Nation’s rivers and streams, and starting to address one of the

most serious environmental challenges we face, global warming.

EPA vigorously enforced the law. They caught diesel engine manufacturers redhanded. EPA found that the Caterpillar Corp. and

some other companies had sold diesel engines that illegally emitted

millions of tons of air pollution. EPA investigations revealed that

electric utilities were flagrantly violating the Clean Air Act, spewing some 5 million tons of illegal air pollution each and every year.

Yet with grave disappointment, I have to note the sea of change

that has occurred in the last year and a half. Under strong pressure from the White House, EPA appears to be in active retreat

from the central purpose of the Agency. Indeed, the progress of the

last decade is quickly being undone by the Bush administration.

For this reason, I question whether this is the right time to be discussing elevating EPA to a Cabinet department.

Last month, Administrator Whitman announced that she would

weaken the Clean Air Act’s New Source Review provisions, placing

EPA’s pending enforcement actions in jeopardy. Then EPA joined

the White House Office on Management and Budget in announcing

it would consider weakening the recently upheld rules to clean up

diesel engines. These actions, if carried through, will be a major

rollback of our clean air program and could well leave children

throughout the country exposed to unacceptable levels of air pollution.

It seems every day we learn of a new rollback being pushed by

the Bush administration. Just this weekend, we learned that EPA

is considering a plan to jettison efforts to clean up polluted runoff

and yesterday the trade press reported that Administrator Whitman may backpedal on penalties for not complying with diesel engine emission standards. Without sufficient penalties, companies

won’t bother to clean up their engines and the health of the American people will suffer as a result.

215

Today I have learned that EPA is considering requiring the

States to weaken their air pollution laws. I would like to introduce

a letter into the record from the State Air Administrators on this

issue.

It is a terrible thing for the Federal Government to ignore its duties to protect public health and the environment, but at least you

would expect EPA to let the States do the job if EPA won’t. News

that EPA would consider preventing the States from more aggressively targeting air pollution is truly an outrage.

With regard to environmental policy, this administration has

acted abysmally and EPA’s interactions with Congress have been

no better. Over the last year and a half, EPA has resisted necessary congressional oversight, apparently at the direction of the

White House. In fact, EPA has been stonewalling information requests I have made for months. This is not a partisan issue. The

Constitution provides Congress with oversight authority, yet both

Republicans and Democrats alike have been critical of EPA’s responsiveness to the congressional oversight requests.

Good government requires responsiveness without resorting to

subpoenas. EPA must address congressional concerns in a prompt,

non-partisan manner, and I am looking forward to hearing from

Administrator Whitman on what changes she will make at the

Agency to ensure that EPA’s poor record in communicating with

Congress is immediately improved.

Mr. Chairman, for more than 10 years, I have supported elevating EPA to a Cabinet level position and I still support this goal but

I don’t think it would do much good under this administration. The

whole purpose of elevating EPA is to enhance environmental protection, but this administration seems bent on undermining, not

strengthening, our environmental laws.

Mr. OSE. Does the gentleman have a letter he wishes to enter

into the record?

Mr. WAXMAN. I have a letter I would like to submit for the

record.

Mr. OSE. Without objection.

[The prepared statement of Hon. Henry A. Waxman and the information referred to follow:]

216

217

218

219

220

221

Mr. OSE. The gentleman from Tennessee.

Mr. DUNCAN. Thank you, Mr. Chairman.

Thank you for calling this hearing.

After spending my 6 year limit chairing the Aviation Subcommittee, I now chair the Water Resources and Environment Subcommittee. In that role, we have many contacts with the EPA. I can tell

you the EPA has been very responsive to that subcommittee, both

to the majority and the minority. There is just no way they could

have been more responsive.

My dad told me many years ago that everything looks easy from

a distance. The longer I live, the more truth I see in that statement. It is easy to criticize but I said at one of the hearings of my

subcommittee that I thought Administrator Whitman had perhaps

the most difficult, if not the most difficult, one of the most difficult

jobs in entire Federal Government because it is extremely difficult

to reach that delicate balance that we need to make sure we don’t

hurt the poor, the lower income, and the working people in this

country because if we go overboard on anything, you can take any

good thing to extremes. If we go overboard in things that may

sound good on the surface, you destroy jobs, drive up prices, and

hurt the poor, and lower income, and the working people most of

all.

I think Administrator Whitman has been doing a really outstanding job. I think we do have some serious questions we need

to look at in regard to whether to elevate the EPA. The big question would be, what could the EPA do then that they could not do

now. That is sort of the threshold question.

We got a Congressional Budget Office report last week that said it is going to cost us at least $3 billion to create the Homeland Security Department, just to implement it. I assume there would not

be any similar type cost here, but we have to look into all of these

things.

I just want to thank you and Chairman Connaughton for being

here. He is also in a difficult position. I want to thank you. You

didn’t come to my district but you did come close, to the First District of Tennessee, a few days ago with Sandra Friez attempting to

work with the Congress. I hope you had a nice visit to the Smokies.

I represent about half of the Smokies. I have the Second District.

I appreciate your being here with us today and I look forward to

hearing your testimony.

Thank you very much, Mr. Chairman.

Mr. OSE. Thank the gentleman.

As our witnesses have come to know, in this committee we swear

in everybody, it doesn’t matter who you are. So if you would both

please rise.

[Witnesses sworn.]

Mr. OSE. Let me again welcome you both to our humble committee.

We will first have the Administrator of the EPA offer her testimony and then we will have the chairman of the Council on Environmental Quality offer his. We have received your written testimony and it has been entered in the record. We would like you to

summarize your testimonies within 5 minutes each, so we can go

to the member questions.

222

Welcome, Administrator Whitman.

STATEMENTS OF CHRISTINE TODD WHITMAN, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY; AND

JAMES CONNAUGHTON, CHAIRMAN, COUNCIL ON ENVIRONMENTAL QUALITY

Administrator WHITMAN. I want to thank you and the members

of the committee for the opportunity to be here this afternoon to

talk about something I think is of great importance, particularly to

the environment and to the American people, the elevation of the

Environmental Protection Agency to the level of department.

It was over 30 years ago that President Nixon affirmed America’s

commitment to the environment by creating the Environmental

Protection Agency. Since that time, the EPA has worked to fulfill

its mission, protecting human health and safeguarding the natural

environment. We have witnessed this mission take on a whole new

meaning since the attacks of September 11th of this past year. As

we have seen, EPA plays a critical role in protecting our homeland

with responsibilities that range from responding to chemical or biological attacks to protecting our Nation’s water supply. These responsibilities underscore the significance of the Environmental Protection Agency.

However, despite the crucial nature of these new responsibilities,

the importance of the EPA is not a new phenomenon. Since its creation in 1970, the EPA has worked to preserve the quality and

safety of some of our most basic needs—the water we drink and the

air we breathe. The EPA has helped develop a national appreciation for our natural resources and an understanding of the integral

role that they play, not just in our economic prosperity but also in

our everyday life.

Economic prosperity and protecting the environment are two of

the paramount goals of American life. EPA is charged with finding

that balance between those two issues to ensure that America remains both economically strong, but as importantly, environmentally safe and healthy for the public that we serve.

Fortunately, over the years EPA has enjoyed the support of Congress and the White House. Establishing EPA as a Cabinet level

department is not a new idea. The first bill to elevate the EPA was

introduced in the Senate in 1988 and since that time, a dozen similar proposals have been introduced.

Similarly, former President Bush showed his support by becoming the first President to support elevating EPA to Cabinet level

and involving then Administrator Riley in the Cabinet meetings

and according him Cabinet level status. President Clinton and

President George W. Bush have followed suit, both supporting legislation and including the EPA Administrator in the Cabinet.

These actions emphasize the importance that past administrations

and our current administration put on the environment.

Environmental protection is critical to our public health’s security and economic vitality as are the responsibilities that are under

the jurisdiction of other Federal level departments. Indeed, EPA

works closely with many of those departments with areas of responsibility often overlapping. As an example, EPA is currently

working with other Cabinet level departments, emergency response

223

teams, and independent experts to address bioterrorism threats

and to develop effective remediation tools for protecting our Nation’s critical infrastructures and the health and safety of the

American public.

Elevating EPA to Cabinet status will ensure that this type of cooperation and integral working relationship will continue into the

future. The environment is not just a domestic issue. It continues

to play a central role in international relations as well. This legislation will bring the United States on a par with other G8 countries

and more than 60 others by establishing a Secretary for the Environment. The time has come to establish EPA as a full member of

the Cabinet. Doing so would be consistent with over 30 years of environmental work and accomplishments and with the status of our

international partners.

I am pleased that many in Congress support this crucial step.

The bill Congressmen Boehlert and Borski have introduced would

elevate EPA to Cabinet level status and provide the Agency with

the flexibility that it needs in that transition. I would like to urge

the committee to avoid any extraneous amendments to the bill and

to strictly limit any changes to those that would improve organizational efficiency and streamline management. I am requesting your

support in achieving this goal.

Making sure all Americans have clean air to breathe, pure water

to drink, and unspoiled landscapes to enjoy, and contributing to the

safety and the security of our homeland, this encompasses the mission of the Environmental Protection Agency and it is a mission

that deserves our full support, the full support of Congress, that

Cabinet level status will bestow on the Agency. Creating the Department of Environmental Protection will ensure that our environmental and public safety mission will continue to be a high priority

both today and in the future.

Thank you very much for your time and attention. I will be

happy to answer questions once the chairman has finished his testimony.

[The prepared statement of Administrator Whitman follows:]

224

225

226

227

Mr. OSE. We thank you for your testimony, Administrator Whitman.

Now, we welcome the chairman of the Council on Environmental

Quality, Mr. James Connaughton, for 5 minutes.

Mr. CONNAUGHTON. Good afternoon.

Thirty years ago, it fell to my predecessor, Russ Train, the chairman of the first Council on Environmental Quality, the task of

helping advance the creation and the establishment of the Environmental Protection Agency. It is my pleasure to sit here today, as

the current chairman of the Council on Environmental Quality,

and take part in advancing the next critical step in this agency’s

evolution; that of a Cabinet level agency.

I am pleased to share this panel with my colleague, Administrator Whitman, with whom I have enjoyed a wonderful year of

close collaboration and significant environmental progress.

In EPA’s short history, its work has helped transform the way

Americans view the environment. It has planted in the American

consciousness a clear sense of environmental stewardship. Over

this period, EPA has taken on the qualities we would expect and

taken on the mission that we would expect of a Cabinet department. First, EPA carries out the work of a Cabinet department.

EPA started out by overseeing four major environmental statutes.

Today, EPA implements 15 major statutes and numerous others, as

well as a full complement of grant programs, voluntary initiatives,

technical assistance and educational programs, and citizen outreach throughout the Nation.

EPA advances the mission of a Cabinet department. EPA is

reaching out to develop new approaches that promote stewardship,

spur innovation, instill sound science in its decisions, advancing

federalism through greater involvement of State and local government, and ensuring compliance.

EPA also plays the vital role of a Cabinet level department in defense of our homeland security. Their expertise is essential for a

Federal response to an act of terrorism that involves a release of

biological, chemical, or radioactive material.

EPA produces initiatives of national significance that one would

expect of a Cabinet department. EPA designed and is advancing

the President’s Clear Skies Initiative, which would cut the Nation’s

powerplant emissions of sulfur dioxide, nitrogen oxide, and mercury by 70 percent. This initiative will enable hundreds of counties

across the Nation to meet national air quality goals.

EPA possesses the international standing of a Cabinet department. Our laws, regulations and standards have been adopted by

nations across the globe. EPA’s scientific and technical expertise is

respected worldwide and is increasingly being deployed worldwide.

Finally, EPA’s Administrator fulfills the role of a Cabinet Secretary. When President Bush took office, he welcomed Governor

Whitman to his Cabinet. As EPA Administrator, Governor Whitman serves the Nation as a core member of the President’s leadership team.

In sum, in the Bush administration EPA carries out the work

and advances the mission of a Cabinet department. In the Bush administration, the EPA Administrator has the stature, the standing,

and the authority of a Cabinet Secretary. The Bush administration

228

therefore looks forward to working with the committee to advance

EPA Cabinet status legislation, and to make official what in this

administration is already a reality.

Thank you.

[The prepared statement of Chairman Connaughton follows:]

229

230

231

232

Mr. OSE. Thank you, Mr. Chairman.

We will now go to questions from Members. Each Member will

be given 5 minutes. If a second round of questions is necessary, we

will have one. I am going to claim time first.

My first question is for the Administrator. Governor Whitman, in

the past you have talked about moving EPA toward a results oriented environment. I actually had the liberty of going back and

reading some of your recent speeches, which I found enlightening

because embedded in all your remarks is a real focus on making

this results oriented policy approach stick.

The biggest problem is how do you change a large ship’s direction

in a short period of time? I guess the question we would have is

how do we ensure that the agency will keep moving in the direction

you are trying to lead, which is a results oriented approach? Is this

legislation, whether Congressman Boehlert’s, or Congressman

Horn’s, or some mix of that, is there something we can use to assist

you in this task?

Administrator WHITMAN. Mr. Chairman, the legislation in and of

itself is not going to change the focus or the purpose of how we administer the agency. The focus on the results oriented approach is

one that we are integrating into all our planning now of budget

and all of our prioritization.

As Congressman Waxman pointed out, we have an extraordinarily dedicated staff of professionals, people who are committed

to making environmental progress. They have welcomed the idea of

measuring environmental progress by real positive changes to the

environment. I believe as we continue to move forward in this way,

we are going to institutionalize this approach. As we develop our

environmental report card, which we are in the process of developing and hope to have ready before the end of the year to show

where we are today and the status of the environment and where

we hope to go, that will also help determine that approach to the

environment for the Environmental Protection Agency is one that

is going to continue long after this Administration.

Mr. OSE. I do appreciate your touching on the future because I

scribbled in a little note here that none of us lasts forever, so it

is a concern that we find a way to get this results oriented, empirically measured policy approach in place.

Chairman Connaughton, the Government Performance Results

Act has created a general framework for agencies to establish a

mission, set goals and objectives to achieve that mission, and then

measure empirically the outcome of these policies and projects to

see if they achieve that. Would it make sense for Congress to more

proactively establish a statutory mission statement for EPA?

Mr. CONNAUGHTON. I think right now we have a well established

framework for EPA’s mission, which began with the National Environmental Policy Act, in terms of its overall goals and then the

kind of statement you just heard Administrator Whitman articulate, I think they have one at hand that could be looked at.

I think a goals statement is important but it is also important

to leave the future Cabinet Secretary the flexibility to have that

mission statement evolve as circumstances evolve. Certainly in

your comments you reflected, Mr. Chairman, the fact that we have

had a long and quite rewarding history of the regulatory apparatus

233

in place in terms of the benefits it has delivered, but we are at a

stage where we need new tools and new focus to make even greater

progress with greater innovation and less cost. Certainly I wouldn’t

want to lock us into a particular construct, so I would want to be

flexible on the goals side.

Specifically, in terms of advancing the metrics and the mission

of the Government Performance and Results Act, we are dedicated

to making that happen. EPA has actually made substantial strides

in making real progress in articulating the kinds of metrics you

just discussed. Certainly the Office of Management and Budget is

a key supporter of that and certainly in the President’s budget submission this year, we made it a first and critical step in beginning

to identify some key indicators on which we will measure agency

performance. Those indicators were worked out in close collaboration with the agencies themselves.

Mr. OSE. Are those indicators, the metrics you speak of, available

for congressional review or input or are they guidance documents?

Mr. CONNAUGHTON. The initial steps are actually articulated in

the President’s budget submission to Congress, so we are actually

looking forward, as we get into the rest of the budget season, to

quite an extensive conversation about those.

Mr. OSE. Thank you, gentleman.

The gentleman from Massachusetts.

Mr. TIERNEY. Thank you, Mr. Chairman.

I thank the witnesses for being here today.

During the course of your time in this office, there has been a

great deal of criticism about what some perceive as an attempt to

weaken the broad range of environmental protections, whether carbon dioxide, or the New Source Rule, the Clean Skies Initiative,

things of that nature. Over the weekend, the Washington Post reported that you might be planning to reverse the previous administration’s watershed protection rule that requires the EPA approval

of State plans for cleaning up lakes and rivers. Is that an accurate

report? Are you, in fact, planning to change those rules?

Administrator WHITMAN. We are looking and our mission is to

see how we can best implement all the rules we have before us. We

are looking at how we provide the States the kind of flexibility they

need to deliver on a watershed-based approach. We are not talking

about backing away from any of our water regulations, we are not

talking about rolling back any of our Clean Water regulations or

Drinking Water regulations. In fact, I spent the morning talking

with all the regional administrators and assistant administrators

on the budget, and water was one of the first areas that came up

for discussion and a recommitment or an insurance that we are

going to advance the goals of Clean Water in this country.

Mr. TIERNEY. How is it that you say that moving away from the

current regulation put in by the last administration, how is that

going to specifically move us forward in that direction?

Administrator WHITMAN. We are not moving away from any regulation that the Agency has developed. What we are looking at is

a watershed-based approach as a more comprehensive way to get

at the kinds of challenges we face today. As the chairman mentioned, one of the biggest issues we face is nonpoint source pollution, particularly to our watersheds. It comes from behavior of indiVerDate 11-MAY-2000 10:31 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00237 Fmt 6601 Sfmt 6601 C:\DOCS\82666.TXT HGOVREF1 PsN: HGOVREF1
234

viduals in places far from where the waters drain along our coastal

waters.

What we need to do is encourage a watershed-based approach,

and we are looking at how do we help the States with that kind

of planning and identifying their most vulnerable watersheds, what

do we do to educate the public? But we are not in the process of

rolling back any regulations that would ensure that we continue to

comply with the Clean Water Act.

In fact, as you know, we have new standards that were put in

place in 1998. What we are looking at is how do we enable the

States to form a partnership that will leverage the enormous number of dollars that are going to be required to meet the new standards.

Mr. TIERNEY. So States will still need EPA approval before moving ahead with their plans?

Administrator WHITMAN. Excuse me?

Mr. TIERNEY. States will still need the EPA’s approval before

moving forward with any plans they have with respect to cleanup?

Administrator WHITMAN. At this point in time, we are anticipating continuing to work very closely with States and tribal governments as our partners. We will look and make sure that plans they

put forward are going to achieve the goals of the Clean Water Act.

Mr. TIERNEY. Right now it needs EPA’s approval before any plan

goes forward? Are you still going to retain that aspect?

Administrator WHITMAN. At this point in time, we are still retaining everything, but we are looking at what is the best relationship to have and how do we ensure that we leverage all our resources.

Mr. TIERNEY. If you are going to attempt any action that would

do away with the EPA’s approval of those plans, would you do it

through a public rulemaking process?

Administrator WHITMAN. Yes. If we did anything, it would be

through a public rulemaking process. What you are talking about,

I believe, is the Total Daily Maximum Load regulation?

Mr. TIERNEY. Yes.

Administrator WHITMAN. That article, that was put on hold by

the Congress by the Clinton administration, so that regulation has

been on hold. We have continued that hold as we have worked. It

is an enormously challenging rule. It requires setting a standard

for every single pollutant, of which there are literally hundreds in

some States. Each State has to do that and we are trying to work

with the States to see how do we best do that, what is the smartest

way to do it, how do we enable them to do it, do we identify those

that are most troublesome from a pollutant perspective first. At

this point in time, we are not talking about rolling back; we are

just trying to make it more effective.

Mr. TIERNEY. Thank you.

Mr. OSE. The gentleman yields back.

The gentleman from Idaho for 5 minutes.

Mr. OTTER. Thank you, Mr. Chairman.

Administrator and Mr. Chairman, thank you for being here

today. I was particularly interested in the questions being framed

by my colleague from Massachusetts in terms of watershed protection.

235

Madam Administrator, do you feel that elevating the position of

the Administrator of the EPA to Cabinet level post would also

probably provide you the opportunity to provide greater national

focus on certain issues that may be facing the Environmental Protection Agency and watershed protection? Do you agree with that?

Administrator WHITMAN. Congressman, at this point we enjoy a

very good relationship with the States, a very good relationship

with our other Federal partners, and I am not sure the elevation

would necessarily change that particularly. The issues that we face

are of such national significance that they get a lot of attention, as

we have seen recently, but certainly, having the Agency become a

department can only help in our ability to implement some of the

solutions, to get the attention of some that we may need to get in

order to work in a collaborative way. It is only going to help us in

that effort.

Mr. OTTER. Let me ask this in a bit of a different way. Part of

watershed protection, it seems to me, would be to have healthy watersheds.

Administrator WHITMAN. Absolutely.

Mr. OTTER. Part of the Clean Water Act would be to have

healthy watersheds. Healthy watersheds mean healthy forests, at

least for us out west. Right now, we have overgrown forests, forests

that are burning up, forests that are in a poor state of health to

resist themselves from disease and bug infestation, all kinds of

noxious and invasive weeds that are all degrading to the watershed.

My question goes to a position on the Cabinet, would that give

you a position perhaps over the objection of say, the ESA, where

you say we are going in to thin out these forests, have prescribed

burns, create a healthy watershed so we have a healthy water supply?

Administrator WHITMAN. Again, right now I enjoy the kind of relationship with my colleagues that wouldn’t be impacted by the elevation. The importance of the elevation is to ensure that continues

no matter which administration it is. It might help in the future.

The short answer is no.

Mr. OTTER. Let us stop right here then. Why don’t we? If you

agree with me that healthy watersheds are part of a healthy supply and healthy forests, which certainly clean up the air, they

make their contribution to nature’s cycle in cleaning up the air,

why haven’t we focused on resisting this effort to keep everybody

out of the forests, everybody off the watershed, and gone in and

thinned the forests, had the prescribed burns, created a healthy

forest and therefore a healthy watershed?

Administrator WHITMAN. Congressman, as you know, the decisions on forests, on burns and such policy, rests with both the Department of Interior and the Department of Agriculture. The watershed initiatives you talk about—in fact, in this budget the President has requested an additional $21 million to enable us to focus

on 20 of the Nation’s most threatened watersheds and to work on

a variety of watershed policies we believe could be used to start to

draw attention to watersheds. The average person hasn’t a clue

what a watershed is. We need to do an enormous education job,

work with the States to help them identify their watersheds, idenVerDate 11-MAY-2000 10:31 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00239 Fmt 6601 Sfmt 6601 C:\DOCS\82666.TXT HGOVREF1 PsN: HGOVREF1
236

tify what is happening to them, but the actual policy to which you

are referring on forest management rests with those two other departments.

Mr. OTTER. I am not going to get into a major disagreement with

you, but it seems it is not out of character and not out of the purview of the Environmental Protection Agency to regulate the Department of Agriculture on what kinds of chemicals it might use

on noxious and invasive weeds in order to eradicate those. It would

seem to me that if the overall purpose of a watershed is to create

healthy water, it would be within the purview of the Environmental Protection Agency to order the Department of Agriculture

and the Department of Interior, like it can on the application of

chemicals, to clean up the watershed and to manage it so we have

a healthy environment.

Administrator WHITMAN. As we move forward with this new watershed initiative, it may turn up something such as that, but we

are just beginning that process now. That has not been a focus of

the Agency to date.

Mr. OTTER. I am sure we will come back to this on a second

round of questions, but Chairman Connaughton, the Council on

Environmental Quality was created prior to the EPA. The purpose

of the Council on Environmental Quality was to advise the Government, including the President and the Cabinet, on questions of the

environment. If we were to elevate the Administrator to Cabinet

level position, do we get rid of the Council on Environmental Quality or do we have a collateral responsibility, a dual responsibility,

for both you and now the new elevated Secretary on the Cabinet

level?

Mr. CONNAUGHTON. I think the roles would continue. As Administrator and member of the Cabinet, Governor Whitman, just as the

Secretary of Agriculture, the Secretary of the Interior, the Secretary of Commerce, reflecting on issues under the purview of

NOAA, enjoy the direct role as Cabinet members and advisors to

the President.

I would expect the Council on Environmental Quality would continue its key role as a policy coordinating body and as an interagency convening body to deal with the kinds of issues you describe, related to forest health and watershed health where not

only is there a role for the Environmental Protection Agency but

the Department of Agriculture, the Department of Interior, the Department of Defense, and the Army Corps of Engineers. They each

have something quite substantial to contribute to a coordinated national response. That is where assuring continued Cabinet status

for EPA comes in, because EPA can provide the kind of expertise

you have described, the technical expertise to understand the

health of water systems.

Just to give you an example in addressing the forest health

issue, primary implementation would occur with the Department of

Agriculture and the Department of Interior, and then in watersheds, we have a huge initiative, up to $47 billion, in the farm bill

conservation title, a significant portion of which we need to tap and

harness in an incentive-based way to promote stewardship among

our farmers and ranchers to help clean up some of these watersheds, help preserve some of our forest habitat as well, but do it

237

in an incentivized way. That is where EPA brings forward the technical expertise, the agencies bring the outreach, the implementation, and the incentives to achieve our goals.

Mr. OSE. The gentleman’s time is up.

Mr. OTTER. I would argue that the conservation title of the Agriculture bill does not speak to the watersheds that I am talking

about. The managed watersheds is what the conservation and that

$48 billion is directed to. It is the impact we have on the environment, not the impact we refuse to have on the environment.

Mr. CONNAUGHTON. I was just using that as an example. Certainly there are some affirmative programs specifically related to

forest health that we are pursuing quite vigorously.

Mr. OSE. The gentleman from California.

Mr. WAXMAN. Administrator Whitman, as you know, I have been

deeply disappointed by EPA’s recent unresponsiveness to congressional inquiries and particularly I can’t understand why you fail to

provide information that I have requested. For example, 21⁄2

months ago, the Assistant Administrator for Air, Mr. Jeffrey

Holmsted, was quoted in the press as saying, ‘‘EPA rejected its own

more stringent proposal for powerplant regulation based on information EPA received from the power sector and unions.’’ In April,

I asked you for the information referenced by Mr. Holmsted but

have received no response. Is there any reason Mr. Holmsted can

discuss this information with the press but EPA cannot provide it

to the Congress?

Administrator WHITMAN. Congressman, we are doing our best to

respond to all your requests. As you know, I think you have sent

a dozen letters in the course of this year and received responses to

nine of those. We have three outstanding. One of those is the one

to which you refer.

We have an open process for reviewing our decisions and responding to your requests. We hope to get that request to you in

very short order, but I will tell you that in order to ensure that the

answers are complete and thorough, we do spend a great deal of

time, and to date in response to the requests that just you have

sent to us, we have spent about 800 hours of time to do it, so we

don’t take this lightly.

Mr. WAXMAN. I know you don’t take it lightly, but it is hard to

understand whether it is being taken seriously because we had a

Subcommittee On Energy and Air Quality of Energy and Commerce meeting on May 1. I sent EPA a set of followup questions

for the hearing record and I understand EPA answered followup

questions from other subcommittee members but I haven’t received

a response to my questions. The record for that hearing has now

been closed and EPA never responded to my questions, so EPA’s

lack of timeliness has resulted in an incomplete congressional

record.

Do you believe EPA has a responsibility to respond to congressional inquiries in a timely manner and is there some reason I

haven’t received a response?

Administrator WHITMAN. Congressman, we absolutely do our

best to provide answers in a timely fashion. I believe that letter included a 12 page list of questions on the Clean Air Act. As you may

know, our decision was only recently made on the New Source ReVerDate 11-MAY-2000 10:31 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00241 Fmt 6601 Sfmt 6601 C:\DOCS\82666.TXT HGOVREF1 PsN: HGOVREF1
238

view program to which most of that letter referred. So we are doing

our best to get a comprehensive response for you because as you

know, when we do send partial responses, it is not satisfactory, nor

should it be. We take this responsibility very seriously.

Mr. WAXMAN. When do you expect that I will get these replies?

Administrator WHITMAN. Again, I would hope we would have it

very soon.

Mr. WAXMAN. Are any of those responses currently undergoing

White House review?

Administrator WHITMAN. I don’t know whether any of those are.

I believe they all rest with the Agency, those three letters at this

point in time.

Mr. WAXMAN. So you don’t know if there is White House review

of those answers?

Administrator WHITMAN. I don’t know where they are now.

Mr. WAXMAN. You don’t know that there is any delay because the

White House is reviewing EPA’s response?

Administrator WHITMAN. No.

Mr. WAXMAN. Do you know that the EPA response is not being

held up because the White House is reviewing the letters?

Administrator WHITMAN. I am saying I don’t know exactly where

in the process of our Agency it is at this point in time, but we can

get back to you with that as quickly as possible.

Mr. WAXMAN. I would like to have that.

Can you tell us today any changes you will make at EPA to ensure that congressional inquiries are answered on a timely basis

from now on? Can you tell us if you have any recommendations for

CEQ, whether the White House is speeding the review of congressional inquiries?

Administrator WHITMAN. Again, we believe we respond as quickly as we possibly can, understanding the nature of the questions,

as I indicated the one letter of yours was about 12 pages worth of

very detailed questions. As you know, most of our work is very detailed and scientific, so we try to ensure we give you the most accurate answers possible. There are numerous documents that you

have asked for, and we would have to go through and make sure

we are in a position to provide everything you want. So we do try.

As I say, we have 3 outstanding of the 12 you sent since the beginning of the year. I suspect we are not the only agency that has difficulty with this.

Mr. WAXMAN. I look forward to getting your response on those.

In the very brief time I have left, I want to ask you about the

diesel engines. In 1998, there was an agreement to settle the largest ever Clean Air Act enforcement to make sure the diesel engines

were going to meet the standards. Now Caterpillar is trying to back

out of the deal. It wants EPA to cut a break on the penalties it will

apply.

If the penalties are too low, it is going to be more profitable for

them to pay the penalties than comply with the law and it will increase the amount of pollution, wouldn’t it? The other part of it is,

if Cummins is doing its job, aren’t they put at a competitive disadvantage if Caterpillar can just pay a low penalty and they have

gone ahead and done what they should have done, which is comply

with the law?

239

Administrator WHITMAN. We are planning to move forward with

the enhanced penalties. In fact, that is part of the Clean Air Act,

a requirement that we continue to review penalties and there is a

formula on how we do it. We have put forward a new set of penalties that would be sufficient, we hope, to ensure that we get those

clean engines quickly, as fast as we need to get them.

There will always be some companies that, for their own financial and business decisions, decide they would rather produce the

old engines and pay the penalties, but we are doing everything that

we can at this point in time to ensure that we have the desired impact on the environment and that we move to the cleaner burning

engines as quickly as we can.

Mr. WAXMAN. Will you commit to finalize the penalty rule before

October and keep the penalty levels you have proposed?

Administrator WHITMAN. We are moving forward with that process. We will finalize by October. They are in the process now, the

new recommendations at the new levels.

Mr. WAXMAN. At your proposed levels?

Administrator WHITMAN. Yes.

Mr. WAXMAN. Thank you.

Mr. OSE. The gentleman from Utah?

Mr. CANNON. I would like to apologize to you and to our distinguished panel for the fact I was a bit late but we get caught up

sometimes, and this is an important hearing.

I would like to thank our panelists. The job you have is very difficult, often thankless, and very, very important. It is a matter of

balancing our quality of life and the prosperity of Americans, especially those who are poorest who tend to be affected.

Without lecturing, let me point out in the last recession from

March to March, we lost about 1.8 million jobs net but of those 1.8

million jobs, we had an offset of about 400,000 jobs of people who

had college degrees or more and those 1.8 million jobs that were

lost were people who had less than a college degree. So the decisions you make have a profound affect, especially on the poorest

among us.

Good science seems to me to be the key to solving the problem

of how we deal with these awful tradeoffs and if we can deal with

science and agree to context for science instead of dogmatic beliefs

that somehow creep into our society as absolutes, I think we will

do much better.

To followup on Mr. Otter’s questions, the mountain behind my

house has just burned. It would have been national news except we

had so many other huge fires all over the West. In fact, I have a

canyon in the mountain to the south that burned 3 years ago and

was national news, the mountain to the north burned and hardly

got a moment’s notice, although I will tell you the problem from

that to our watershed and the loss of top soil and the floods we will

have next spring is really daunting. I have several neighbors to the

south whose houses were wiped out by the mud flows subsequent

to spring rains.

It seems to me, Mr. Chairman, that you are in a particularly important position to be asked to do something aggressive about what

I think has been a decade of neglect to our forests. Are you doing

something actively and aggressively to turn this around? This is an

240

area where we have good science, we have good understanding. If

you look at Utah, we have had two or three major forests that have

been destroyed by pine bark beetles, which could have been saved

if we had just gone in and eliminated those areas that were affected instead of destroying literally a third of all the trees in the

State of Utah, which is devastating for top soil and for watershed.

Now that we have this crisis of fires, which I think lends itself

to terrorism in a serious way, are we doing something radical to

say we need to cut fire breaks, we need to take each forest in the

country, and under your direction guiding the Forest Service and

to some degree the BLM into taking steps that will preserve or optimize our environment?

Mr. CONNAUGHTON. The short answer is yes and with Congress’s

support, we need to do more. I had the privilege of being in Idaho

in Boise City to sign with the Governors—including Governor

Kempthorne, a very good friend of mine and I enjoy working with

him—to sign the 10-year fire plan, which has some key immediate

implementation steps that will be taken this summer to at least get

better control over the devastating situation you describe so eloquently.

Then we have key implementation steps that will be occurring as

we prepare for next year’s fire season and beyond. We have to get

into these forests. The science has caught up with us, we have had

decades of mistaken policy, decades, not just one decade, but decades of mistaken policy. I think there is a much broader consensus

that we can sensibly go in and produce a healthier forest as a result of some effective management actions and we now need to mobilize the resources and mobilize the local commitment and we

have that now. It is a bipartisan local commitment toward more effective management.

We have some significant work internal to the government, the

Forest Service, and BLM to preserve the environmental reviews

that need to occur, but to do it in a more streamlined way so we

can get these projects moving. We need to reduce the litigation

holding up some of these projects. We know what we need to do,

we can do it sensibly environmentally—so we are working on all

those different levels.

Mr. CANNON. Tell me please that we are doing something radical.

Because we have a radical problem, and we also have pretty good

science, and the President has a great deal of power, and you are

sort of the key to that power. Are we going to do something like

cut fire breaks in areas that are significant?

Mr. CONNAUGHTON. The answer to that is yes. I would prefer the

words ‘‘aggressive’’ and ‘‘environmentally responsible.’’

Mr. CANNON. I appreciate that but let me tell you, if I were a

radical Islamic terrorist—I don’t think I am giving away any secrets here—you could drop little firebombs around the western

United States and have a huge effect on our economy, our livelihood, our water, our water reservoirs, and every other aspect of our

life. Therefore, I think while you may need to speak in terms you

have described, some radical action is probably justified.

Thank you.

Mr. OSE. The gentleman from Ohio?

Mr. KUCINICH. Thank you, Mr. Chairman.

241

Administrator Whitman, welcome. Welcome, to the chairman.

If it was up to me today, I would address you as Secretary. I believe the EPA deserves to be Cabinet level status. The priorities of

environmental protection and public health are equally important

and if not more important in some consideration as energy, commerce, and others, dedicated Federal departments.

Some opponents have criticized efforts to raise the EPA to Cabinet level status on the argument that such a move would be largely

symbolic and wouldn’t have any tangible meaning. I think the best

way to counteract that argument is for the EPA to make a claim

to Congress and the public that this would not be the case. I use

that as a prologue to concerns I had when I read last Saturday’s

Washington Post that the EPA will ‘‘no longer exercise its duty

over Total Maximum Daily Load, a significant Clean Water Act antipollution program.’’ The Total Maximum Daily Load [TMDL] is

the post child for a program where Federal oversight is essential

because the States have refused to implement it.

As you know, I represent Cleveland. A few years ago, you and

I were with Senator Voinovich touring Cleveland. We know years

ago when the Cuyahoga River caught on fire, that was part of what

spurred passage of the Clean Water Act. I represent the people of

Ohio who petitioned the Federal EPA to help protect Ohio’s environment when the Ohio EPA failed to do so. Ohio’s EPA has undergone the deepest and widest evaluation of any State EPA ever.

It is with disappointment that after my constituents have experienced such precedent setting levels of pollution and have rallied

and fought against it, that now the Federal EPA, in my opinion,

is turning its back on the problem by weakening, by reopening the

TMDL rules. It will simply result in a lowering of standards in

order to meet such standards.

Proposed changes such as planning for entire watersheds instead

of individual water bodies, in my view, are merely a tactic to lower

standards to achieve compliance. As the proposed changes to

TMDL say, ‘‘EPA will not review, approve, or back stop,’’ State

plans to comply with water quality standards. It seems EPA is not

doing the job it has the duty to do, and not doing the job citizens

are asking it to do.

My first question is how would the EPA improve water quality

by removing itself from an oversight and enforcement role?

Administrator WHITMAN. I know it will come as a surprise, but

the article isn’t correct. Unfortunately, the newspapers, particularly of late—there have been a couple on major issues which have

been very troubling for the Agency, because they simply have been

filled with inaccuracy.

As you know, the Congress put the implementation of the TMDL

rule on hold during the previous administration. We are continuing

to work with that. Our object is to see how we best implement

those TMDL standards, understanding that they are enormously

burdensome and complicated in that they require individual standards to be set for every single type of pollutant that is found in the

water bodies.

We are exploring a number of different ways to leverage the

States’ abilities with the Agency’s abilities to ensure that we reach

the result that is the object of the TMDL rule, which is cleaner,

242

healthier waters. We are committed to that; we are not backing

away from it. The article unfortunately made some assumptions

that were just inaccurate. I know all of you have been exposed to

that kind of thing from time to time and know it can happen.

It becomes very troublesome, though, when it is talking about

issues that are of such importance, and this one is of critical importance.

Mr. KUCINICH. I think it is important to go over this for the

record. I have the article from the Washington Post, one of their

environmental writers. Essentially, it characterizes the Administrator’s position on this. If the Administrator is saying this is not true,

then we will take her at her word.

Another disconcerting example, the EPA recently decided to relax

the New Source Review program rules. Just as environmental advocates feared, EPA’s decision has created a chilling effect on court

cases brought by the Department of Justice and EPA to enforce

New Source Review. While EPA claims the new rule would not

weaken ongoing litigation, we have proof it has already done so.

On June 26, U.S. District Court Judge William M. Screteny, presiding over a case brought by the New York Attorney General for

Clean Air violations instructed the Attorney General and the utilities to submit new briefs describing how the rule change would impact the issues brought by the case, and EPA’s decision to roll back

the Clean Air Act is harmful enough without the added impact of

crippling governmental efforts to enforce the law. If you could answer the question, why does the EPA deserve to be a Cabinet level

position if it rolls back air and water quality standards?

If we in Congress want to promote the EPA, how can we do that

if it appears that the EPA is not realizing the authority it has now?

Administrator WHITMAN. As you may not know, in a hearing earlier today, the Justice Department testified to the fact that prospective regulations should not impact those cases. In fact, Attorney

General Spitzer’s spokesperson indicated they did not feel any prospective action by the Agency would impact those cases. We continue to vigorously enforce them.

The proposals that we have made on New Source Review, there

are two different sets of proposals. One, there were regulatory

changes that were first proposed during the Clinton administration

in 1996 and have been subject to the full and open public process.

Those really do not impact utilities at all.

Prospective regulations that have not even begun the rulemaking

process but are contemplating, of those there are three and one is

the critical one, as far as utilities are concerned, routine maintenance repair and replacement. That rulemaking process has not

begun. It will be subject to the full public disclosure and it is responsive to a number of concerns that have been raised about ensuring that New Source Review is as effective and efficient as possible.

The real answer here, we all believe, whatever happens with

New Source Review, that we enact the President’s Clear Skies Initiatives, which include a very rigorous reduction in the emissions

of SO2 nitrogen oxide and mercury by 70 percent over the next 10

years—make it clear, make it mandatory, provide the flexibility for

utilities to achieve those standards within what makes sense for

243

them economically, work with the acid rain program, and work extremely effectively.

We are continuing to ensure that we enhance the quality of our

air. I would say to your last point that the elevation of the Environmental Protection Agency to department status should really be a

reflection of the importance this country puts on the environment

and not a reward, or not withheld as a punishment or given as a

reward for particular behavior. This is broader than that. It is

about where do we place the environment in our scope of government and how important it is.

As you indicated at the beginning, environment is something

that is of enormous importance to the health and well being of this

Nation. That is how the elevation ought to be looked at. It is not

a reward for this administration or a previous administration. It is

about how we value the environment.

Mr. KUCINICH. Thank you.

Mr. OSE. We will have a second round if the members so choose.

Chairman Connaughton, in terms of the Agency being elevated,

should Congress statutorily require the Agency measure the environment to ensure that the policies and regulations are achieving

those goals that are otherwise laid out? The question is a bit broader than it may appear, in that it is my understanding that the collection of information at the agency, because of the scope of the

problem, leaves something to be improved. Would you care to comment on that?

Mr. CONNAUGHTON. I would first agree with you that data collection information and tying measures of performance and outcome

to the specific actions and different things, regulatory programs, incentive programs, State oversight, is a very, very critical and near

term, pressing priority. Certainly that has been recognized by the

National Academy of Public Administration, some thoughtful analysis by the EPA Inspector General, and recognized first and foremost by Governor Whitman when she took the helm of the Agency.

Whether there is a specific legislative mandate is something I

think we should discuss. I have seen lots of different proposals for

that and at this time wouldn’t be able to commit to one or another

of those. Certainly the Bush administration supports linking programs to results. The best way to achieve that is something we

would like to talk to you about.

Mr. OSE. Administrator Whitman, do you have any observations

you might wish to share with us regarding collection of the information together with its correlation to programs and results?

Administrator WHITMAN. We are instituting a results oriented

policy. That is how we are approaching our mission, that is how we

are approaching the various programs we undertake, and any new

regulatory process. We are strengthening our accountability based

on performance information, and we are enhancing our performance information by elevating science at the Agency and ensuring

that is at the very beginning of any kind of regulatory process, improving management decisionmaking based on information on the

best way of doing business to accomplish our goals.

As I have said repeatedly, the measure of environmental success

should not be on the amount of penalties we collect in a year or

the number of enforcement actions we bring. It should be on is the

244

air clean, the water pure, the land better protected. That is the

measurement of whether or not we are doing our job. We are moving now to institutionalize that kind of results oriented policy.

One of the gaps—I will say there is a gap—is the quality of the

State level data. We cannot collect all the data. It is virtually impossible to do it all ourselves. What we are doing now is working

closely with the States and tribes as partners to try to develop better ways to get data, to see how we leverage the dollars we give

to make sure that we have some national standards on data, and

we make it easier for them to collect and provide us with that kind

of data, and we are not overburdening them, because it is a huge

burden to collect the information required to make good decisions.

That is something we have focused on a great deal and will continue to as we move forward.

Mr. OSE. How big an obstacle is the collection of data and its correlation to the results?

Administrator WHITMAN. Actually, the collection is the bigger

challenge. Once you have the data, the correlation to results is

pretty easy to do. Even the TMDL, as we have been talking earlier—Oklahoma is one State that has spent a lot of focus and time

on the collection of data. They have been able to implement TMDLs

without a great deal of effort and long maintained that data collection and good data has to be the basis for moving forward. Wherever we find those challenges, that is where we will be directing

our resources to try to help the States do a better job of that and

understand the importance of good data collection and making

their overall job easier.

Mr. OSE. The reason I focused on data collection versus the empirical metrics that Chairman Connaughton mentions is at the end

of my tenure here, I want to know that the environment is better

than when I got here. How do we help either the Council or EPA

find a way to measure these outcomes? I understand the stovepipe

approach with the Clean Water Act, Clean Air Act, and what have

you. Tell me how we in Congress can help you do that, to get to

the information collection that leads to better results, less environmental damage?

Administrator WHITMAN. As you will see, we have requested in

this budget proposal some additional dollars for science. That is

going to be very helpful to us. We are trying to breakdown those

stovepipes. That is something I believe has been an obstacle to our

doing good planning for the environment. No one told Mother Nature that what is in the air can’t come down on the water or the

land, or what is in the water can’t migrate into the land and vice

versa.

We need to do a better job in the way we collect and manage environmental information and move away from that historic media

specific approach into a wider, broader, more enterprise-wide management system. That is what we are in the process of doing. The

dollars and the emphasis that we have put on enhanced science are

going to help us with that and on information technology. We have

put some additional dollars and will be requesting additional dollars in this budget on our information technology so that we can

enhance that and do a better job in the way we collect that data

and make it easier to share it and understand it.

245

Mr. OSE. Chairman Connaughton.

Mr. CONNAUGHTON. I would amplify on that from the perspective

at a macro level: is the air cleaner, is the water cleaner? We can

collect that information, the broad information, but we are missing

this link, and the data flows and the science Governor Whitman

talked about is critical, is the link to performance-based budgeting.

I think the Congress is critical, the House in particular, in supporting the President’s management agenda approach that is actually trying to link these core indicators of environmental quality

and health with the most effective programs so that we can begin

to create a good old-fashioned, good Government competition for

budget dollars, tied to the most effective programs.

Certainly we would want to see Congress support something like

the Clear Skies Initiative that would result in no litigation and the

most cost effective way of getting air pollution reductions. It is

finding the data that allows you to link the program with the outcome that is critical, so you can compare a command and control

program to a market-based program to an incentive-based program

and say which is delivering more environmental protection for the

taxpayer dollar? Congress getting behind that and actually giving

us oversight, the importance of oversight with a performance oriented budget approach is really where I think we can advance this

next generation of more effective environmental management.

Mr. OSE. I do want to tell you we are interested in you doing all

the oversight you want. We are not going to give up our oversight,

so we welcome you to that party.

The gentleman from Utah?

Mr. CANNON. You have raised the bar for what is thoughtful responses and I appreciate it. I have been an admirer from afar and

it is nice to see you actually dealing with these issues and both of

you have done so eloquently and well.

Ms. Whitman, you talked earlier about a report card and answered a number of questions by the chairman. Are you developing

a report card that will have transparent data behind it so people

can understand where we are going? Is that the same concept you

are dealing with here?

Administrator WHITMAN. That is the whole point of it, to make

it something the public can understand, something we would release on an annual basis. The importance here, and where we could

use congressional support when we do come out with that report

card, is an understanding that we are not going to meet our goals

every year and we are not always going to be able to show the kind

of advance we would like to see.

That doesn’t mean we are not progressing. It doesn’t mean we

should give up what we are trying. We should just improve it. We

shouldn’t be afraid of self criticism but we are going to make it

very public, a transparent process, and ensure the public can understand what we are saying.

Mr. CANNON. Among other things, we have made vast progress,

not because of Federal rules and the administration, but because

science has done some remarkable things for us that cannot be predicted, controlled, or managed. If we have goals, that will help direct resources, so I congratulate you on that and look forward to

following how that works.

246

Let me talk about the role of the States. When EPA started, you

had no State involvement. Now you have States with significant

State law and in many cases, delegation of Federal authority to

oversee laws. What do you see the role of the States being? I realize you are going to have to work with States and develop data, but

how do you see the role of States evolving after you have developed

the kind of transparency you are talking about of goals and information behind goals? Can they pick up more of the slack? Can we

delegate more and more and the Federal Government become a

more distant guide and let the States take more responsibility?

Administrator WHITMAN. I share the President’s perspective that

not all wisdom resides in Washington. Having come as a Governor,

I also appreciate the work and innovation that is occurring at the

State level.

We need to be able to provide the States the flexibility to meet

the generally agreed upon standards that are protective of human

health and the environment, standards we will work on in a transparent way based on sound science, but we will work with the

States to allow them some flexibility in the implementation without

backing away from our responsibility to ensure we are in fact protective.

We have a very good relationship with the States now. Some of

our most effective programs are State partnership programs. We

are looking for ways to expand those. The area of enforcement,

which I know is of great interest to many members on the Hill,

States do 90 percent of the enforcement now; they do 95 percent

of the inspections. We are trying to see how we can help them do

that better.

States right now are facing severe budget cuts and concerns. We

need to be sensitive to that. We need to see where we can in fact

help them do that job, understanding the stresses they find themselves in at the moment.

At all times, we are working with States and tribes as our full

partners. We intend to continue that effort and look for other ways

we can do that while being protective of the environment and

human health.

Mr. CANNON. I agree with that. I tell my constituents the average IQ in Washington is still only 100 and while we have more

power and maybe some more general view which is helpful to us,

I agree with you about States and their ideas.

It is nice for me to see this administration with people who are

articulate spokesmen. There is nothing we have to fear from

science, and from peer review, and from the kind of processes that

get people involved and are transparent. It is the other side who

are dogmatic and religious in their beliefs, who plant links where

they shouldn’t be because they want that to be protected. That is

where the problem existed.

If I could encourage good science, peer review, transparency, I

think America will make great leaps forward, and I encourage you

in that activity.

I yield back.

Mr. OSE. I have two more questions and we will wrap up this

panel, because I know you both have busier days than I could ever

imagine.

247

Mr. Chairman, would an Office of Science that integrates and coordinates all the science at EPA be helpful? First, is the science collection and corroboration a fractured effort in your opinion, at

EPA? Could it stand improvement?

Mr. CONNAUGHTON. I will answer that in the affirmative. It can

be improved and we are working to improve it throughout the government, the role of science, bringing it forward in the line Congressman Cannon suggested.

I would note EPA has taken the critical step of actually creating

a science advisor post which I think was a very, very strong move.

It also brings somebody with responsibility to look at science across

the Agency, and also provides a key person to participate interagency in many of the processes that I am involved in and also

spearheaded by the Office of Science and Technology Policy. So the

role of a strong individual or group overlooking the science as well

as the economics at the Agency is very important and consistent

with where we want to take things, whether it is the Department

of Interior or EPA.

Exactly how that would be structured, again, remains something

we should discuss and I think with Governor Whitman’s experience

now and as she looks at the future, we would want to defer to the

leader of the Agency to see how it is structured. Each Agency, the

Department of Energy deals with it differently than the Department of Interior, than does NOAA. Each have structured science

oversight in different ways. Before we pick one, I think we should

look at those models to see how they were developed and how they

were tailored and the particular organizational needs of the institution. A strong central scientific role is important.

Mr. OSE. Do you share that view?

Administrator WHITMAN. I certainly share the view. We can do

a better job, and we have been focusing on enhancing the role of

science in the decisionmaking at the Agency. My concern with establishing a Deputy Administrator for Science or a specific other

position such as that is that science should be incorporated

throughout the Agency. It should be part of every one of the Assistant Administrators job. I don’t want anyone thinking the Deputy

Administrator for Science will take care of that. It should be integral and form the basis for all of the work we do. That is why I

have established the office and role of science advisor as someone

who can take a more comprehensive look but is not seen as being

the science person. But in fact we are continuing to integrate

science in all the decisions we make.

We have enhanced the use of external peer review as we move

forward with regulations. I think that is an important part to corroborate the science we have used. We are doing everything to ensure the level of our science is at the top of the range, the best we

can come up with. And we have some fine scientists.

We have an innovation strategy that we are in the process of developing that will look for other ways to ensure that science is integrated into the entire and throughout the entire agency. So my

only concern about isolating science to one particular part of the

Agency is that I don’t want any kind of isolation, I don’t want any

misunderstanding that there is one person that talks science. That

248

should be part of every single one of the program areas. They have

to have good science and good reliance on science.

We are now doing it through the science advisor and also

through the innovation strategy that is a place where every regulation will go and get looked at to see whether it needs science, more

science at the beginning than not. So we are trying to integrate

that but are willing to talk and work with the Congress on how

best to ensure that continues to happen.

Mr. OSE. I have nothing else. Mr. Cannon.

Mr. CANNON. I have nothing else but one comment. We have a

huge number of people in the private sector who thought a lot

about these things. I hope you would consider integrating them either through contracting or your peer review process or other

means into the system because good ideas can catch on very quickly and move mountains.

Mr. OSE. We will leave this record open for 10 days. Given the

time constraints, we will dismiss this panel. We do have some

questions we did not get to that we will submit in writing and we

ask for a timely response. We are grateful for you.

Administrator WHITMAN. We will get you a timely response.

Mr. OSE. Governor, you have always been responsive, so I do appreciate it.

Again, the record will be open for 10 days, we will get you the

questions. We appreciate your taking the time to come down and

visit with us. We look forward to the next time. Thank you both.

We will take a 5-minute recess.

[Recess.]

Mr. OSE. We will reconvene this hearing.

We welcome our guests for this panel. As you saw in the previous

panel, we swear in all our witnesses. Our witnesses in the second

panel will be the president of the Environmental Law Institute, J.

William Futrell; vice president for Environment and Regulatory Affairs, U.S. Chamber of Commerce, William Kovacs; and a senior

fellow for environmental economics, Natural Resources Defense

Council, Wesley Warren. Gentlemen, if you would rise.

[Witnesses sworn.]

Mr. OSE. Let the record show the witnesses answered in the affirmative.

It would appear we have a vote scheduled here. We will proceed,

Mr. Futrell, with your testimony. We do have your statement in

writing. I read it and it is comprehensive and universal. I do appreciate if you could summarize in 5 minutes.

STATEMENTS OF J. WILLIAM FUTRELL, PRESIDENT, ENVIRONMENTAL LAW INSTITUTE; WILLIAM KOVACS, VICE PRESIDENT, ENVIRONMENT AND REGULATORY AFFAIRS, U.S.

CHAMBER OF COMMERCE; AND WESLEY WARREN, SENIOR

FELLOW FOR ENVIRONMENTAL ECONOMICS, NATURAL RESOURCES DEFENSE COUNCIL

Mr. FUTRELL. Thank you for the opportunity to join this dialog

on elevation of EPA to Cabinet status. We have two members of

the House on our board of directors, Congressman Tom Udall of

New Mexico and Sherry Boehlert of New York. Therefore, reviewing the testimony of the earlier hearings, I was interested to read

249

Sherry’s judgment which I join in saying keep it simple and a clean

a bill to elevate EPA to Cabinet status.

The invitation to the hearing asked me to comment about what

next after Cabinet elevation. I was fascinated to read the comments

by the other stakeholders in the hearing.

Mr. OSE. Mr. Futrell, I need to interrupt for a minute. I am advised I have three votes which is likely to be a 40 minute exercise.

We can get each of your statements on records in abbreviated form

and leave the record open for 10 days, or when the point comes

where I have to bolt for the floor, we can be in recess, I can come

back and we can be here a bit longer.

Mr. FUTRELL. Whatever your wishes are, Mr. Chairman.

Mr. OSE. I do not like to treat my witnesses this way. I feel as

if I am being rude, but I do think in the interest of time, yours and

mine, it might be best to get your statements in the record in an

abbreviated form for each of you and let me leave here when there

are about 2 minutes left. We will adjourn the hearing and send the

questions in writing to each of you. Is that agreeable?

Mr. FUTRELL. Sure.

Mr. OSE. You have 2 minutes.

Mr. FUTRELL. I read the statements and many of the recommendations you are hearing from the National Academy of Public Administration, from Terry Davis, Unified Act, are prescriptions

which will not cure the problem. My friend Bill Kovacs is going to

have the same sort of difficulties for his companies as he has now

because in our system of laws, we have a checkerboard of black

squares and red squares. If you are on a black square, you are regulated beyond belief. That is Mr. Kovacs’ company, the Dupont

Corp., General Electric. If you are on the red square, you get away

with environmental murder. That is the American mining industry.

The American mining industry causes more damage to the waters

of the United States than all of manufacturing industry combined.

The focus in our environmental statutes is on the middle process

of turning raw materials into products. First, we cut down the tree,

that is resource extraction. Then it is processed, that is manufacturing. Then it is thrown away and used. That is resource recovery.

The Congress’ environmental statutes are focused on resource

processing. If we were to rethink our laws and return to what I call

sustainable development law, you would be able to ease much of

the tension on the manufacturing sector. That really means taking

on the agricultural sector, the mining sector, and others, and Congress has avoided that.

I note with approval your call, Mr. Chairman, for going to pollution reduction credits for trading. ELI believes in trading. The

Clean Skies Initiative, Jim Connaughton’s press release on that

quotes the ELI research work. Here is our book, ‘‘The Clean Water

Act TMDL Program.’’ Unless you have a strong TMDL program,

you cannot have a water trading permit system.

It is a real challenge. Congratulations on these hearings. I think

my statement hangs together in written form.

[The prepared statement of Mr. Futrell follows:]

250

251

252

253

254

255

256

257

258

259

260

Mr. OSE. Thank you for your brevity.

Mr. Kovacs.

Mr. KOVACS. We have been discussing how to better organize

EPA for 30 years. Since the beginning, there has been a fundamental shift and that shift is that 90 percent of all enforcement and

management activities are by the States. Business has spent $2

trillion on environmental protection over the last 30 years. It now

spends $200 billion annually on environmental protection.

We expect EPA to do the impossible, we expect it to have a vast

knowledge of law, science, technology, computer modeling, the acquisition, development, and analysis of data, federalism and the relationship of all these moving parts, and yet we straightjacket

them into a budget which says it must spend on a specific program.

For example, EPA spends 64 percent of the budget on waste

management and water and 6 percent of the budget on science and

data information. The Chamber has some challenging recommendations in our testimony. One is EPA needs overarching statutory

language, if it is going to be elevated, that allows it to move forward in a flexible system to do performance based standards and

to remove the command and controls structure so it can address

problems in a timely manner.

Second, we believe there can’t be any second guessing of States.

When the EPA authorizes the States to take over a program, they

are doing 90 percent of it now anyway, EPA shouldn’t be able to

second guess it. If it doesn’t like what the States are doing, EPA

ought to remove the program authority.

EPA needs to be more focused on standard setting and technical

assistance and it needs to expend more of its money in the realm

of science. In particular, I refer you to a 1990 EPA report, ‘‘Reducing Risk,’’ where the agency admits there is little correlation between relevant risk and their budget priorities. This is a key.

We need to address sound science and data quality. We now have

the ‘‘Data Quality Act.’’ We can’t have good science, we can’t have

environmental protection unless you spend the money to get the

good science. Without spending the money on data quality and

science, we are not going to be able to reach the goal of flexibility

within the program as well as the ability to address priority risks.

It is a partnership between business, the States and the Federal

Government. We all need to understand our roles and there are

ways in which EPA can be efficient, give the goals to the States,

set the sound science, while recognizing that business will continue

to spend the money to implement environmental programs.

[The prepared statement of Mr. Kovacs follows:]

261

262

263

264

265

266

267

268

269

270

271

272

273

274

275

276

277

278

279

280

281

282

283

284

285

286

Mr. OSE. Thank you, Mr. Kovacs.

Mr. Warren.

Mr. WARREN. The Natural Resources Defense Council supports

elevation of EPA to a Cabinet level agency. We think it will improve attention and priority of the environment within the Federal

Government, but we do not support it so strongly that we would

accept substantive changes to their ability to protect the environment as part of that legislation. Therefore, we ask you to pass a

clean bill, free of such extraneous provisions.

We have endorsed H.R. 2438, Congressman Boehlert’s bill, but

accordingly, we have opposed H.R. 2694, Congressman Horn’s bill.

We believe that it would be a mistake to hold this elevation of EPA

hostage to addressing other issues, other than the elevation. In

fact, just those kinds of controversies killed this legislation in 1994,

which was the last serious time it was moving through the House

of Representatives. We would not like to see that happen again.

I know the subcommittee has considered many so-called second

generation proposals as part of its consideration of EPA’s elevation

bill and I have to assure you that they are quite controversial. In

some cases, they would amount to a legislative wipeout of the underlying statute. The fact of the matter is the underlying statutes

for the most part work quite well. They have brought us a generation of environmental improvement. As Congress takes them up

one by one, we can suggest ways they can be improved further but

to add them to this bill would be a very grave mistake.

The two most important things that should be done to improve

environmental protection in this country is to use the current statutes better, more enforcement of the laws on the books and more

funding for the provisions that exist in those statutes would make

great progress in this area.

The budget this year for EPA would actually cut enforcement by

200 enforcement personnel or about 13 percent, and cut water

quality investments by over $500 million. Many proposals in Congressman Horn’s bill we consider controversial but two I would

point out specifically, Section 120, which would have burdensome

cost benefit and risk assessment requirements which would almost

certainly lead to litigation and could be construed by some as a

super mandate which would be laid on top of all existing environmental decisional criteria and some of the information provisions

which would consist of extensive micromanagement of how the

Agency does that work including a Bureau of Environmental Statistics which could conflict with and be duplicative of other parts

of the Agency.

Finally, if it does become a legislative free for all, as the EPA

Cabinet bill moves through the process, we would come forward

with proposals we think would substantially improve environmental protection. The details are in our testimony.

They include improving sound science at the Agency by eliminating dependence, overdependence, on industry data and making sure

peer review is free of conflicts of interest; second, reform, how regulatory impact analyses and cost-benefit work is done at the Agency

so that costs are not overstated and benefits undervalued; third,

improve the way in which children’s health is protected in this

country across the board in all environmental statutes; fourth, imVerDate 11-MAY-2000 10:31 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00290 Fmt 6601 Sfmt 6601 C:\DOCS\82666.TXT HGOVREF1 PsN: HGOVREF1
287

prove transparency in terms of how the agency makes its decisions,

especially since OMB seems increasingly involved in early decisionmaking at the Agency; fifth, ban reliance on human testing data

that comes from the industry, and finally, make sure industry discloses data it has in its possession that shows adverse environmental impacts.

We would only recommend these if the legislation is thrown wide

open and we strongly urge the subcommittee to move EPA Cabinet

legislation free of such extraneous provisions that might undermine

its ability to protect the environment.

[The prepared statement of Mr. Warren follows:]

288

289

290

291

292

293

294

295

296

297

298

299

300

301

302

303

304

305

306

307

308

309

310

311

312

313

314

315

316

Mr. OSE. Gentlemen, I do thank you for your brevity. I apologize

for the circumstances we find ourselves in. I feel badly. You came

down, testified, and it will not go unnoted.

We will leave the record open for 10 days. We will send you the

questions we otherwise would have posed in person to you, and

hope for a timely response.

Again, thank you for taking time to come. This hearing is adjourned.

[Whereupon, at 4:40 p.m., the subcommittee was adjourned, to

reconvene at the call of the Chair.]

[The prepared statement of Hon. John Sullivan and additional

information submitted for the hearing record follow:]

317

318

319

320

321

322

323

324

325

326

327

328

329

330

331

332

Æ