U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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

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

94–495 PDF 2004

EPA WATER ENFORCEMENT: ARE WE ON THE

RIGHT TRACK?

HEARING

BEFORE THE

SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

OCTOBER 14, 2003

Serial No. 108–157

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

TOM DAVIS, Virginia, Chairman

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

JOHN SULLIVAN, Oklahoma

NATHAN DEAL, Georgia

CANDICE S. MILLER, Michigan

TIM MURPHY, Pennsylvania

MICHAEL R. TURNER, Ohio

JOHN R. CARTER, Texas

WILLIAM J. JANKLOW, South Dakota

MARSHA BLACKBURN, Tennessee

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. ‘‘DUTCH’’ RUPPERSBERGER, Maryland

ELEANOR HOLMES NORTON, District of

Columbia

JIM COOPER, Tennessee

———

BERNARD SANDERS, Vermont

(Independent)

PETER SIRH, Staff Director

MELISSA WOJCIAK, Deputy Staff Director

ROB BORDEN, Parliamentarian

TERESA AUSTIN, Chief Clerk

PHILIP M. SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON ENERGY POLICY, NATURAL RESOURCES AND REGULATORY

AFFAIRS

DOUG OSE, California, Chairman

WILLIAM J. JANKLOW, South Dakota

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

CHRIS CANNON, Utah

JOHN SULLIVAN, Oklahoma

NATHAN DEAL, Georgia

CANDICE S. MILLER, Michigan

JOHN F. TIERNEY, Massachusetts

TOM LANTOS, California

PAUL E. KANJORSKI, Pennsylvania

DENNIS J. KUCINICH, Ohio

CHRIS VAN HOLLEN, Maryland

JIM COOPER, Tennessee

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

DAN SKOPEC, Staff Director

DANIELLE HALLCOM, Professional Staff Member

ANTHONY GROSSI, Clerk

(III)

C O N T E N T S

Page

Hearing held on October 14, 2003 .......................................................................... 1

Statement of:

DiBona, Pam, vice president for policy, Environmental League of Massachusetts .......................................................................................................... 124

Fox, J. Charles, vice president of public affairs, Chesapeake Bay Foundation ................................................................................................................. 129

Metzenbaum, Shelley, director, Environmental Compliance Consortium ... 99

Savage, Roberta, executive director, Association of State and Interstate

Water Pollution Control Administrators ..................................................... 83

Schaeffer, Eric, director, Environmental Integrity Project ........................... 139

Segal, Scott, partner, Bracewell & Patterson, LLP ....................................... 113

Suarez, John P., Assistant Administrator, Office of Enforcement and

Compliance Assurance, Environmental Protection Agency ....................... 17

Thompson, Steve, executive director, Oklahoma Department of Environmental Quality .............................................................................................. 67

Varney, Robert W., Regional Administrator, U.S. Environmental Protection Agency .................................................................................................... 34

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

DiBona, Pam, vice president for policy, Environmental League of Massachusetts, prepared statement of .................................................................. 126

Fox, J. Charles, vice president of public affairs, Chesapeake Bay Foundation, prepared statement of .......................................................................... 131

Metzenbaum, Shelley, director, Environmental Compliance Consortium,

prepared statement of ................................................................................... 101

Ose, Hon. Doug, a Representative in Congress from the State of California, prepared statement of ........................................................................... 4

Savage, Roberta, executive director, Association of State and Interstate

Water Pollution Control Administrators, prepared statement of ............. 86

Schaeffer, Eric, director, Environmental Integrity Project, prepared statement of ........................................................................................................... 142

Segal, Scott, partner, Bracewell & Patterson, LLP, prepared statement

of ..................................................................................................................... 116

Suarez, John P., Assistant Administrator, Office of Enforcement and

Compliance Assurance, Environmental Protection Agency, prepared

statement of ................................................................................................... 20

Thompson, Steve, executive director, Oklahoma Department of Environmental Quality, prepared statement of ....................................................... 70

Varney, Robert W., Regional Administrator, U.S. Environmental Protection Agency, prepared statement of ............................................................. 36

(1)

EPA WATER ENFORCEMENT: ARE WE ON THE

RIGHT TRACK?

TUESDAY, OCTOBER 14, 2003

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS,

COMMITTEE ON GOVERNMENT REFORM,

Ipswich, MA.

The subcommittee met, pursuant to notice, at 11 a.m., at the Ipswich Town Hall, Conference Room A, 25 Green Street, Ipswich,

MA, Hon. Doug Ose (chairman of the subcommittee) presiding.

Present: Representatives Ose and Tierney.

Staff present: Dan Skopec, staff director; Danielle Hallcom, professional staff member; Yier Shi, press secretary; and Anthony

Grossi, clerk.

Mr. OSE. This hearing of the Committee on Government Reform,

Subcommittee on Energy Policy, Natural Resources and Regulatory

Affairs, is coming to order. It is 11:02 a.m., Tuesday, October 14th.

I ask that we allow Members not on the full committee to join

us today for purposes of this hearing.

Hearing no objection, so ordered.

We have two panels of witnesses today. Mr. Suarez and Mr.

Varney are on the first, and then the balance of the witnesses are

on the second.

Congressman Tierney and I will each have an opening statement,

after which we will swear in the first panel of witnesses. The first

panel of witnesses then will be given 5 minutes to make their

statements. We have copies of their statements that have been entered into the record, and copies of their statements are in the back

of the room for anyone that wishes to read them.

After their 5-minute statements, we’ll enter into questions, and

then the court reporter here will record the answers. Everybody

gets sworn in on this committee; it’s just a tradition of the Government Reform Committee.

Our plan is that the first panel will go about an hour, we’ll take

a short break, the second panel will go about an hour, and then

we’ll be completed; it’s obviously subject to change depending on

how lengthy the question-and-answer period becomes.

Mr. Skopec will be monitoring the time. Mr. Skopec at 4 minutes

will hold up a sign which says ‘‘One Minute,’’ which means you

have 1 minute remaining on your 5-minute testimony; hopefully

we’ll be able to go expeditiously.

2

I am pleased to be here in Ipswich today. In fact, as I was walking around the building, Mr. Varney was regaling us with tales of

his youthful exploits in soccer on the football field.

But we’re not here to discuss that; we’re here to discuss the

hugely important topic of the protection of our Nation’s waters.

Massachusetts is well-suited for this discussion, as it faces the

challenge of providing safe drinking waters and clean lakes and

oceans in one of the Nation’s oldest industrial centers.

Our focus today is the Environmental Protection Agency and its

efforts to enforce the Clean Water Act. This hearing will explore

the mutually reinforcing relationship between EPA’s strategy of

compliance assistance and formal enforcement, sometimes referred

to as the carrot and the stick.

Both compliance assistance and traditional enforcement methods

are fundamental tools to ensure successful environmental protection.

As President Clinton stated in his 1995 Reinventing Environmental Regulation report, the adversarial approach that has often

characterized our environmental system precludes opportunities for

creative solutions that a more collaborative system might encourage.

Since the mid-1990’s, EPA has increasingly used compliance-assistance programs in conjunction with traditional enforcement tools

to help facilities comply with Federal environmental laws and regulations.

Evaluating whether EPA’s and the States’ efforts have actually

achieved results is a more difficult undertaking.

My background memorandum for today’s hearing, which is located on the back table, contains statistics on traditional enforcement performance measures. However, merely tabulating the number of enforcement actions or outputs does not measure actual results.

For example, the collaborative work done by EPA Region 1 on

the Charles River would not be reflected in the enforcement numbers for Region 1. Collaborative efforts can only be measured by

more meaningful outcome performance data, such as the changes

in the quality of the water.

The Bush administration has made a concerted effort to rate all

Federal programs and activities to ensure that they’re actually attaining their stated goals.

At the EPA, this means setting goals for cleaner air and water

rather than measuring how many permits are issued or fines assessed. I commend the Bush administration for focusing on results

and looking for new and innovative ways to protect the environment.

EPA’s Office of Enforcement and Compliance Assurance—and I

apologize for the acronyms, but we’re going to use one now; we’re

going to refer to that as OECA from now on—recently completed

an internal management review to understand the successes, failures, and data gaps in its decade-old National Pollutant Discharge

Elimination System majors program.

EPA’s efforts resulted in a report that takes significant steps toward gathering and analyzing meaningful data. EPA did not just

3

gather data; it analyzed policy implications and has taken steps to

improve data collection and compliance.

Before we leave this point, I want to mention the majors program. Majors are defined for our purposes as facilities that discharge more than a 1 million gallons per day; minors are below

that.

EPA’s data show that the number of NPDES majors facilities in

significant non-compliance has remained effectively the same since

the program was first initiated under the Clinton administration in

1994. EPA came to its own conclusions that, while repeated noncompliance rates have been declining, overall compliance can be

improved.

Similarly, EPA also determined that toxic exceedance levels and

the percentage of facilities in perpetual noncompliance can also be

decreased.

As a result of EPA’s findings and their desire to reduce violations

of the law, they have taken concrete actions by establishing a

Watch List to systematically lower the number, frequency, and severity of repeat violations.

Moreover, the Watch List will not be limited to enforcing the

Clean Water Act. It will also include repeat violators of the Clean

Air Act and the Resource Conservation and Recovery Act, which is

intended to control storage and disposal of hazardous waste.

I applaud EPA’s efforts to vigorously pursue facilities that repeatedly refuse to obey the law.

This topic is particularly appropriate here in Massachusetts,

where EPA has aggressively promoted innovative compliance-assistance programs to tackle its environmental challenges.

EPA and the regulated community have moved largely towards

this goal, not by a sole reliance on aggressive formal enforcement

actions, but by a collaborative effort to understand and eliminate

the causes of pollution, and monitor water quality to determine

success.

I applaud EPA’s and the communities’ collaborative efforts to

clean up the Charles River. It can and should serve as a model for

other regions around the country.

I’d like to welcome the following witness to our panel.

The first panel is composed of Hon. J.P. Suarez, Assistant Administrator, Office of Enforcement and Compliance Assurance of

the EPA; joined by Mr. Bob Varney, the Regional Administrator for

EPA Region 1, which is this part of New England.

Our second panel will be composed of, Mr. Steve Thompson, the

executive director of the Oklahoma Department of Environmental

Quality; Dr. Shelley Metzenbaum, visiting professor of the University of Maryland School of Public Affairs and director of the Environmental Compliance Consortium.

They’ll be joined by Ms. Roberta Savage, the executive director

for the Association of State and Interstate Water Pollution Control

Administrators; Mr. Scott Segal, partner at Bracewell & Patterson

LLP; Mr. J. Charles Fox, vice president of public affairs for the

Chesapeake Bay Foundation; Ms. Pam DiBona, vice president for

policy, Environmental League of Massachusetts; and Mr. Eric

Schaeffer, director of the Environmental Integrity Project.

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

4

5

6

7

8

9

10

11

12

13

14

Mr. OSE. I’d like to recognize my good friend from this part of

the country for purposes of an opening statement, Mr. Tierney.

Mr. TIERNEY. I would like to thank the chairman very much, and

welcome him to Red Sox Nation after last night.

He didn’t get here in time for the game, unfortunately; but he

certainly heard the results, probably heard the cheering all the way

up in the air when the plane was coming down.

I want to thank you, Mr. Chairman, for conducting this hearing

in Ipswich, MA, in this particular district.

You did one other hearing previously on energy in Peabody—not

‘‘Pea-BOD-y’’—and I think it’s important that we take some of

these hearings out around the country, so that people don’t always

have to feel that everything happens inside Washington and that

people are excluded.

I commend the chairman for his willingness to do that throughout the country; this committee has been as eager, I think, as anybody else to do that on a regular basis.

This is a good place to have this meeting, here at the Ipswich

River, near the mouth.

The river begins, Mr. Chairman, in Burlington and Wilmington,

down in Middlesex County, and flows about 40 miles before entering Plum Island Sound.

It encompasses about 155 square miles, and spans all or parts

of 21 communities in Middlesex and Essex Counties; 330,000 people, and thousands of businesses, receive their water supply from

the Ipswich River.

The river provides a rich habitat for a wide variety of wildlife

and aquatic species, and remains essential to the ever-growing

ecotourism industry, attracting beachgoers, birders, canoeists, anglers and hikers.

This river is the example of the distance traveled since the Clean

Water Act was implemented in 1972 to restore and maintain the

chemical, physical and biological integrity of the Nation’s waters.

The good news: The Clean Water Act mandate to enforce discharge limits against industries has been largely effective in this

area in recent years.

The only National Pollutant Discharge Elimination System major

permittee in the watershed—Bostik Findley in South Middleton—

has historically been a pollutant; but, thanks largely to the Clean

Water Act, the company has taken steps to reduce its impact on

the river and to clean up pollution on the site.

Again, we get into these acronyms a little bit. The National Pollutant Discharge Elimination System is going to be referred to as

the NPDES, because we can’t keep saying it over and over again.

We’re referring again to major permittees.

The recent improvements in plant and collection infrastructures

of the only major wastewater treatment facility discharging into

the Ipswich basin have addressed historical pollution problems.

That’s, of course, the town of Ipswich’s wastewater treatment facility.

There are still occasional violations of discharge limits of fecal

coliform, and it’s a little bit difficult to meet the copper limits, as

Mr. Varney and I were discussing; but, I think that’s purposeful,

15

trying to set the bar high and knowing that the community is going

to try to meet that.

The improvements are real; the benefits are tangible for our

shellfish industry, for our fishermen and for our swimmers; obviously everybody wishes we had gotten here sooner, but we’re

pleased that we’re moving in the right direction.

But the Ipswich River also has some problems. It continues to be

the third most endangered river in the Nation according to some

advocates, in particular the American Rivers, who put out its report in 2003.

It is pumped dry chronically, often causing major fish kills; dissolved-oxygen levels are still an issue; use of non-aquatic recreational vehicles on the riverbed is a serious issue; and, water

withdrawals for wastewater transfers continue to be a concern.

Mr. Chairman, for a fuller exposition of some of those issues, I’d

like to put on the record at the appropriate place the unanimous

consent to enter two statements.

One is a statement of Joel Mintz, professor of law at Nova Southeastern University Law Center. The other is by Kerry Mackin, executive director of the Ipswich River Watershed Association.

Mr. OSE. No objection.

Mr. TIERNEY. Thank you.

So you can see, Mr. Chairman, that although the Clean Water

Act has been upheld and continues to be the law, its strengthening

and enforcement remain crucial to the Nation’s environment and to

its health.

One of our witnesses will testify today that in States that are

confronted with severe budget problems the Federal mandates of

the Clean Water Act ensure adequate enforcement of at least those

areas that fall within the scope of the act.

Many people are concerned with diminishing State enforcement

abilities and commitment, given these budget constraints.

The February 2003 National Pollutant Discharge Elimination

System [NPDES], Majors Performance Analysis has given many

people cause to be concerned about the Federal Government’s continued commitment to enforcement of the Clean Water Act.

This hearing is not intended to be partisan. The EPA issues on

this subject, and in fact to the 2003 report just cited, span a period

from the last administration into this administration; but concerned people can note what appears to be a general retreat from

enforcement of environmental standards under the current administration.

Sunday’s papers recounted a new interpretation of a law that

purports to allow miners to degrade far more acreage than previously permitted as they mine ore.

Friday’s papers reported that the Assistant EPA Administrator

for air policy, Jeffrey Holmstead, is said by some former EPA enforcement officials to have testified before Senate committees that

the Bush administration’s efforts to soften clean-air enforcement

rules would not harm pending lawsuits against aging coal-fired

plants, even though key aides had told him just the opposite previous to that.

Obviously, these lawsuits that were bearing fruit in holding energy plants to standards are a concern in this New England region;

16

and the President’s New Source Review Rule certainly makes

changes that may undermine some of the protections that we rely

on in this particular region.

After the failure for many years to comply with the Total Maximum Daily Load [TMDL], the program established in the Clean

Water Act, EPA proposed new rules in 2002 that were directed at

cleaning up the waterways within the next 10 to 15 years. Unfortunately, the Bush administration has recently withdrawn those proposed rules.

I noted as recently as yesterday that the report coming out on

what may be in the energy bill that’s in conference right now is

that there was one effort to have EPA issue a final report; and, instead of waiting for that report to come out on environmentally

controversial drilling techniques, the energy bill may now seek to

exempt the technique from controls of the 1974 Safe Drinking

Water Act.

Also, the energy bill language may do away with the requirement

that construction activities related to oil and gas exploration operate with a permit under the Clean Water Act.

Obviously, the warning there is that oil and gas exploration can

go forward without controls on stormwater runoff into lakes, rivers

and streams.

Also, the bill would make it easier for companies to get Federal

aid to clean up leaks and spills even if the companies caused the

problem and are financially able to pay. It would limit manufacturers’ and refineries’ responsibility for certain gasoline additives like

MTBE and would take them off the hook for participating in the

cleanup there.

So there are many reasons why we’re concerned.

Of course, reports of the most recent study on the NPDES raised

concerns that I know the Assistant Administrator, Mr. Suarez, is

going to address and give us some information on.

I understand, Mr. Suarez, that the analysis was done as a tool

for managing the NPDES majors program based on performance

data. I applaud the efforts of the EPA for this periodic review, improved data collection and utilization, and efforts for continual improvement. We would like to explore during the context of the

hearing just how that’s being done.

This hearing was requested to examine the report’s offerings, and

to assess EPA’s commitment to the enforcement of the Clean Water

Act and its plans on how it intends to do so, particularly in view

of that report.

We look forward to hearing answers to questions on a number

of issues, such as the data quantity and quality; the effect of penalties on compliance and deterrence; any need for clarification as

to whether extreme exceedances of toxic-water-quality-based permit limits are the result of unachievable limits due to technology

availability or costs; what is being done about Federal facility significant noncompliance cases; and what are the reasonable interpretations of data and the correct measures to follow such slowing

or declining enforcement activity, and how has that impacted the

deterrent effect of your agency.

Data seems to show that most of the States and regions with the

lowest activity levels of enforcement also have the lowest rates of

17

overall compliance; and we want to discuss whether or not that

suggests a positive relationship between the EPA and State enforcement activity and compliance.

We also want to know, Mr. Assistant Administrator, what we are

to make of the administration’s fiscal 2004 budget proposal that

would cut 54 full-time enforcement positions, and what effect that

would have on the things we’re going to talk about today.

So, Mr. Chairman, I want to thank you for scheduling this hearing, and for having it here. I want to thank all the witnesses in

advance and thank them for joining us; we look forward to your

testimony.

Mr. OSE. Thank you, Mr. Tierney.

As I said at the outset, we historically have always sworn our

witnesses.

Gentlemen, if you would please rise and raise your right hands.

[Witnesses sworn.]

Mr. OSE. Let the record show both witnesses answered in the affirmative.

Our first witness today is the Assistant Administrator for the Office of Enforcement and Compliance Assurance at the Environmental Protection Agency.

Mr. Suarez, you’re recognized for 5 minutes.

STATEMENT OF JOHN P. SUAREZ, ASSISTANT ADMINISTRATOR, OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE, ENVIRONMENTAL PROTECTION AGENCY

Mr. SUAREZ. Thank you.

Mr. Chairman, Congressman Tierney and members of the committee, I really appreciate the opportunity to testify before you

today.

As you indicated, I am J.P. Suarez, Assistant Administrator for

the Office of Enforcement and Compliance Assurance at USEPA.

I am here today to report that our water enforcement program

is on the right track and is protecting our Nation’s waterways from

illegal and harmful discharges of pollution.

In my testimony today, I would like to provide a brief overview

for you of the smart enforcement initiative currently being undertaken throughout the offices of OECA and explain how smart enforcement relates to the water enforcement program.

I will also provide recent examples of successes in the water enforcement program that are helping to improve water quality

throughout the United States.

Upon beginning my tenure at the EPA, I launched what we are

calling the smart enforcement initiative throughout the Office of

Enforcement and Compliance Assurance Programs at EPA.

Smart enforcement requires that we use the most appropriate

enforcement tools to achieve the best outcomes, to address the most

significant problems as quickly as possible.

The principle is the culmination of our work and experience within the enforcement and compliance assurance program. It crystallizes the lessons we have learned over the years into a strategy

for action.

Smart enforcement incorporates several key areas. The first and

foremost priority within the smart enforcement initiative is to enVerDate 11-MAY-2000 12:27 Aug 02, 2004 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 D:\DOCS\94495.TXT HGOVREF1 PsN: HGOVREF1
18

sure that we are addressing the most significant environmental,

public-health, and compliance problems.

The problems we face range from massive amounts of raw sewage being discharged into our waterways, to dangerous amounts of

air pollution being released from refineries and other sources, and

everything else in between.

Within this broad spectrum, smart enforcement focuses our efforts on the most significant cases. It forces us to ask, where can

we make the biggest difference in protecting human health in the

environment?

The second component is to measure our enforcement success by

the actual environmental benefits realized. Not only are we looking

at the numbers of enforcement actions we could produce at the end

of a given year; we are asking ourselves the question, is the air

cleaner, is the water purer, and is the land better protected?

This is our true measure of success: What are the outcomes of

the work that we do?

We see this as measuring the real benefits from enforcement activity, as opposed to simply counting numbers or beans from our

enforcement work. Measuring real outcomes, I believe, is the most

appropriate way to determine whether we are fulfilling our obligations to the public.

The third area of concentration is to use data to make more strategic decisions in order to target and discover the most egregious

violators, and ensure better utilization of our resources.

Over the years, EPA and the States have accumulated vast

amounts of data. As we begin to analyze this data, we are able to

uncover valuable intelligence that leads us to the most significant

areas of noncompliance, so that we can take action to address that.

The fourth area of focus is to continually improve the management of the enforcement program. This is done by honestly and

openly assessing the effectiveness of our current and past program

activities to ensure continuous program improvement.

An example of this is the recent OECA analysis of the NPDES

majors portion of the Clean Water Act. The report identified patterns of noncompliance and enforcement activity levels from 1999

through 2001.

These types of reports allow managers within OECA to improve

the program, and ensure that the environment and public health

are not being compromised. To be successful, we must continuously

assess our program activities to ensure performance and continuous improvement.

The fifth and final factor within smart enforcement is to communicate the environmental, public-health and compliance outcomes

of our activities more effectively.

An example of making compliance information readily available

is the enforcement and compliance history online [ECHO] system.

Through the ECHO system, the public has facility compliance

history right at their fingertips, online, 24 hours a day, 7 days a

week.

Making data available to the public increases accountability for

facilities, and encourages compliance. ECHO provides the public

SNC data, and further demonstrates the EPA’s commitment to use

19

data to manage the program and to focus on facilities identified

with serious violations.

I’d like to turn now to the specific issue of water enforcement.

We are improving upon previous water enforcement programs in

EPA. As you mentioned, in February of this year we developed a

report, ‘‘A Pilot For Performance Analysis of Selected Components

of the National Enforcement and Compliance Assurance Program.’’

The purpose of this report was to identify patterns of noncompliance and enforcement activity levels from 1999 through 2001. The

report analyzed the NPDES majors program, which is only one

component of the water enforcement program.

Consistent with the principles of smart enforcement, support is

being used as an internal tool to provide us with the information

that will help us better manage the NPDES majors program.

The announcement provided OECA managers an opportunity to

strategically develop recommendations designed to improve the

NPDES majors program.

The report showed many things, and I’ll be happy to talk about

that in a moment with you. But, it’s important to bear in mind that

not all facilities that are designated in SNC require a formal enforcement action to return to compliance.

Data show that 49 percent of facilities recover from SNC without

formal action at all. Also, some facilities in SNC have pending investigations and enforcement actions which are confidential and

are not reflected in data bases at all.

Our report also analyzed penalty data, but it is again important

to note that States are not required to submit penalty data to EPA.

I look forward to speaking with you further about the results of

our report, as well as the other significant activities that we are

undertaking at EPA to improve the enforcement program.

It is not just the NPDES major program that we’re dealing with,

but a number of other areas; including wet weather, stormwater

and enforcement. I look forward to that opportunity, and I appreciate the opportunity to come here to Ipswich and to talk to you

all about the great strides we are making to make sure that our

air stays clear, our water is pure, and our land is protected.

Mr. OSE. Thank you, Mr. Suarez.

[The prepared statement of Mr. Suarez follows:]

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

Mr. OSE. For those in the audience, I’d like to repeat, copies of

the testimony of all witnesses are in the back of the room so you

can follow along.

You’ll find in our format here that in the 5 minutes allotted the

witnesses are summarizing their testimony. For instance, Mr.

Suarez’ testimony is actually about 14 pages long, and it contains

a lot of information that he’s not able to cover in the first 5 minutes.

So, for those of you interested in the back of the room, there are

copies of every witness’s testimony.

Our next witness is a Regional Administrator here in Region 1

for USEPA.

Mr. Varney, you’re recognized for 5 minutes.

STATEMENT OF ROBERT W. VARNEY, REGIONAL ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. VARNEY. Thank you.

Mr. Chairman and Congressman Tierney, it’s a pleasure to be

here, and to be in the area where I grew up and learned to appreciate the natural resources that are so important to us in this country.

By way of background, prior to becoming a regional administrator, I served as the State environmental commissioner in New

Hampshire under three different Governors of both political parties.

I was president of the Environmental Council of the States

[ECOS]; and, you’ll be hearing from the chair of the enforcement

committee on the next panel.

I also chaired the New England Interstate Water Pollution Control Commission and chaired the Gulf of Maine Council on the Marine Environment. So, water quality has been an area that I’ve

been very interested in, directly involved in. I have very much appreciated the work that EPA has done over the years in partnership with the States.

As J.P. said—and I want to commend J.P. for his work as the

Assistant Administrator—we have been a very focused agency in

terms of trying to promote smart enforcement.

We know we have limited resources, we know that there are

competing demands in Congress for those resources, and we know

that we need to get the very most out of our resources wherever

possible.

It’s imperative that we direct our resources to areas where there

are the greatest risks to human health and the environment.

For us here in Region 1, we have focused on both compliance activities that are enforcement-related as well as compliance activities that are technical-assistance-related. We have worked very

closely with the States because obviously the States are an important piece of the picture, and we share our environmental management responsibilities with the States.

We have quarterly meetings with the States to discuss enforcement priorities, to share information, to make sure that we’re not

duplicating our efforts, and to make sure that we’re getting the biggest bang for the buck environmentally by focusing and sharing

that information.

35

We also have performance partnership grants and performance

partnership agreements with the States, which again are joint priority-setting with the States to ensure that we’re all focused on the

right things.

The issues in New England are of significant interest to us. Wetweather issues, combined sewer overflows, sanitary-sewer overflows and stormwater discharges are significant here in New England.

We all know that our CSOs, SSOs and stormwater issues are related to the urban infrastructure that we have, the age of that infrastructure, and the highly populated villages and urban areas

that we have—all of which have an effect on water quality.

In this area, I think it’s important to note the significance of

shellfish here in Ipswich, where we have the Ipswich Shellfish Co.

We are concerned about bacteria, and how bacteria and other

pollutants can affect our shellfish industry, as well as the beaches—another important part of our economy in this part of the region.

We have worked very closely with our municipalities on these

issues. About 70 percent of our CSO issues are municipal discharges.

All told, we have a relatively large number of CSO communities,

about 120 affecting our beaches, affecting our shellfish beds. Also,

let’s not forget our drinking water in our rivers and streams.

We try to be results-oriented and flexible in the work that we do.

We have tried, for example, to be focused on enforcement, but at

the same time to achieve our results by being flexible and providing communities an opportunity to re-examine issues and to look

for cost savings and efficiency wherever we can.

Our efforts are very resource-intensive, and involve a great deal

of outreach as well as technical engineering work. Our work on the

Charles River, the Clean Charles 2005 initiative, I think is a great

example, that you’ll be hearing about more.

Our College and University initiative, and our Municipal Department of Public Works initiative, are both programs that promote

environmental management systems and self-audits as a way to

help us increase our compliance rates and activities. To combine

compliance with that technical assistance gives us the greatest

benefit to the public and enables us to use our resources most efficiently.

Thank you.

Mr. OSE. Thank you, Mr. Varney.

[The prepared statement of Mr. Varney follows:]

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

Mr. OSE. At this stage, what we will do with our panel of witnesses, Congressman Tierney and I will enter into a dialog with

them, with questions. We’ll rotate back and forth.

At the end of the hearing, there may be questions that we think

of but haven’t asked. The record is going to be left open for a couple

of days so that we can send those questions to you in writing, and

you can respond. Obviously, we would appreciate a timely response.

And I’m going to commence.

Mr. Varney, I’m particularly interested in the issue of wet weather events.

The question relates to the intersection of policy with fiscal conditions of the States with the actual physical process of how sewage

and the like is transported to treatment plants.

What steps has Region 1 taken to work with New England’s municipal sewer systems to bring them into compliance?

Mr. VARNEY. Well, we’ve used a multifaceted approach in working with our municipalities.

First and foremost, we have tried to work cooperatively with the

municipalities wherever possible. We also have tried to give them

realistic timeframes for doing the work that is needed.

An example of that would be many of the CSO communities

where we moved ahead to implement the most cost-effective measures that would achieve the greatest reductions at the lowest possible cost, while deferring some of the improvements that were less

cost-effective and provided less of an environmental and public

health outcome.

Mr. OSE. You’ve taken data collected by the States, I presume,

analyzed it accordingly, and sought to prioritize?

Mr. VARNEY. We would work with the States to prioritize the

data. We would discuss the prioritization of the data. We would go

through a ranking system, looking at a series of measures.

First and foremost would be the risk to public health, the volume

of the discharge, the total quantities involved, and, of course, our

measurement of water quality, what we’re actually seeing in the

rivers, streams, and estuaries over time, which is a reflection of

both our compliance activities as well as our enforcement.

Mr. OSE. The States set the level at which compliance is attained; is that correct?

Mr. VARNEY. Water quality standards are set by the States.

Mr. OSE. And the EPA signs off on those at the time the plan

is adopted?

Mr. VARNEY. Yes; and, generally speaking we have fairly stringent water quality standards here in New England.

Mr. OSE. Now, there seem to be significant noncompliance issues

with a number of municipalities. What’s driving that?

Mr. VARNEY. The significant noncompliance [SNC], rates for our

region are a reflection of several factors.

One of the most important factors as it relates to SNC is the fact

that some of our limits are interim limits, and some of them are

seasonal limits; the interim limits are related to the fact that we

need several steps to be taken in terms of improvements to get to

those numbers.

53

Then we also have seasonal limits, which are another factor; and

the States have chosen to select standards that are fairly difficult

to attain, and we have worked with communities over time to move

forward on those.

In cases where we have significant impact to public health and

the environment, as well as a whole series of other factors that we

look at in our prioritization scheme, we would, in conversation with

the States, select those items that are the top priority.

Mr. OSE. I didn’t quite understand that.

There are 45 of 50 States that are basically self-monitored; two

of the remaining five States are New Hampshire and Massachusetts, in terms of administering an NPDES program. Is that correct?

Mr. VARNEY. Yes.

Mr. OSE. Before I leave this point, what are the other three

States?

Mr. VARNEY. There are six States in New England: Maine, New

Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut.

Mr. OSE. All of which rely on EPA for the administration of the

NPDES program?

Mr. VARNEY. Yes. We are the ones that actually issue the permits in Massachusetts and in New Hampshire, but do so jointly

with the States; as we just recently did on the Brayton Point permit in Somerset, MA.

Mr. OSE. I think it was in your testimony that there was an example cited of a CSO or SSO that was being redesigned for a 2-

year storm. How do you determine that the 2-year storm is the

threshold to utilize?

Mr. VARNEY. The factors that we would use would be determined

in discussion with the State and with the local community, and

with the consulting firms that they have on board.

What we would be trying to do is to minimize the number of situations whereby you would have unhealthy levels of bacteria in your

river on a frequent basis.

An example of that would be a hot summer day, at say 95 degrees, with elevated levels of bacteria in your waterways due to a

rain event the day before.

Obviously, we’re trying to minimize and eventually eliminate

those discharges through a comprehensive approach, working with

the local community over time and within, obviously, the resources

that they have to reduce and eventually eliminate those discharges.

And there is no single approach that’s used. It’s a multifaceted

approach, involving stormwater as well as CSO and replacement of

some of the aging infrastructure.

Mr. OSE. Mr. Tierney.

Mr. TIERNEY. Thank you, Mr. Chairman.

Mr. Varney, before we leave that subject on the CSOs and the

SSOs, you indicated that part of the problem with significant noncompliance was the fact that there were interim and seasonal

standards to meet or whatever; but, I suspect what my communities would tell you is that it’s money. Have you heard that?

Mr. VARNEY. Yes. I’ve heard that many times.

Mr. TIERNEY. Basically, what we’re talking about is money?

Mr. VARNEY. Absolutely.

54

Mr. TIERNEY. There was a day when the Federal Government

used to participate somewhat significantly with CSO funds and

SSO funds and other clean-water issues; and we’ve seen a retreat

from that for a few decades.

What would your impression be if there were ample resources

among the State and the Federal Government and the local communities? I think we would be doing a better job, would we not?

Mr. VARNEY. Yes; it would move faster, I would expect.

Mr. TIERNEY. Mr. Suarez, thank you for your testimony here

today.

Let me just cover some ground. I promised somebody that called

from a radio station this morning that we would try to do this in

English, try to break it down. We’ll try not to have too much alphabet soup, and try to make it simple.

The permit compliance system you have, the PCS data base,

identifies violators from the discharge monitoring reports of the facilities.

So if facilities file discharge monitoring reports to the EPA and

to the State, it’s sort of a self-monitoring type of situation; am I

right?

Mr. SUAREZ. That’s correct.

Mr. TIERNEY. With respect to the major facilities, as described by

the chairman earlier, the reports include information on what the

facility has discharged into the water over a specific period of time.

Mr. SUAREZ. Correct.

Mr. TIERNEY. And, they’re required to be filed periodically to either the EPA or the States, depending on who does it; and then

they’re used to identify where the violations are.

So my question to you is, how helpful are those reports at identifying violators, and are we confident that this self-reporting is accurate and it’s working?

Mr. SUAREZ. The discharge monitoring reports that you referred

to are incredibly important to us when we evaluate the compliance

of a particular facility; and we use those regularly to evaluate the

effectiveness of compliance and enforcement efforts across the Nation, through all 50 States.

They are the backbone of the water enforcement program, as far

as I’m concerned.

The data quality is good. There are some data-quality issues in

a number of States. Some of that is input.

Actually, Mr. Tierney, there are some States that are moving a

little bit faster in upgrading their computer systems; and, there’s

a communication difficulty with EPA’s system and the States’.

We have put money and resources into designing what we’re calling bridgeware. That allows the States to move ahead, and our system will catch up. We’re trying to do that as quickly as possible so

that the data quality does not suffer and is not compromised as a

result of different systems.

But at the end of the day, this administration has asked for more

money to upgrade and modernize PCS so that it will be able to

communicate with all 50 States. Data quality will be better than

it is now, though it is good now.

Mr. TIERNEY. Are you aware of any analyses that have been done

concerning the reliability of these discharge monitoring reports, or

55

do you plan to do any, so we have some sort of data to indicate to

us just how much of this self-reporting is accurate and how much

is not?

Mr. SUAREZ. I am not specifically aware of any analysis that’s

been done to go underneath the reports to determine independently

whether or not the monitoring is accurate.

Much of this monitoring is a regular, continuous monitoring system that’s in place at the facility; so, it’s data that is just uploaded

and submitted to us.

So again, I think from my perspective what I would focus on is

those facilities that are failing to meet the permit limits, failing to

meet water quality guidelines and standards, and addressing efforts there; because, we have pretty good confidence in the discharge monitoring reports.

Of course, if there were a concern brought to our attention, since

there have been instances where certain people falsify records, we

will take appropriate action, and swiftly, against those entities’ operators.

Mr. TIERNEY. And we’re relying on people to report that has been

happening, as opposed to some analysis generally on the accuracy

of them?

Mr. SUAREZ. Or we will look at inconsistencies. Let’s use an example.

If there is a series of exceedances over a number of months,

when the exceedances come back into the permit level we’ll engage

in a conversation with the States, and ideally with the facility.

We’ll say, what happened? What would cause you to go from all

these exceedances back into compliance?

And if there is any concern that’s raised concerning the veracity

of those DMRs, we’ll take a look.

Mr. TIERNEY. Earlier this morning there was reference to the waterways advocacy groups.

The issue was raised that we all understand you’re focusing on

the violations of major facilities, but we also have discharges coming from minor facilities as well. What information do we have

that’s currently available in terms of the minor NPDES facilities

and how much they’re currently discharging?

Mr. SUAREZ. That data is available publicly; and there are links

available on the ECHO Web page, actually, where the public can

access that.

Mr. TIERNEY. Will you tell us what ECHO is, again?

Mr. SUAREZ. Yes; I apologize.

That’s a system that we put on line last year. It is an enforcement and compliance history online data base that allows the public to access our enforcement history of over 800,000 regulated facilities, and to look at their compliance history, their compliance

with their permits—be they air or RCRA or Clean Water Act—and

to download that information if they want to, and to do a number

of different queries of the data base.

Mr. TIERNEY. And that’s the minors as well as the majors?

Mr. SUAREZ. There is information for minors there as well.

Mr. TIERNEY. These facilities that receive permits that allow

them to legally discharge certain amounts of effluent——

Mr. SUAREZ. Yes; that’s correct.

56

Mr. TIERNEY [continuing]. Do we know how much pollution is legally emitted into our waterways? Is there any record of that?

Mr. SUAREZ. We have looked at some trends in terms of trying

to gauge the amount of the loadings.

I can’t tell you today, Mr. Tierney, what that number is; but I’ll

be happy to go back and see if my staff can give you a better number.

Mr. TIERNEY. Would you do that, please?

Mr. SUAREZ. Yes, I’d be happy to do that.

Mr. TIERNEY. Thank you.

The report that we talked about earlier, the NPDES majors report, is an analysis of one component of your work. I think both

of you mentioned that in your testimony. We have other areas.

Do you anticipate that you’re going to do the same sort of internal analysis on wet-weather areas; the CSOs, the sanitary-storm

overflows and the stormwater?

Mr. SUAREZ. It is my expectation, Mr. Tierney, that we’re going

to do this type of evaluation for all components of the enforcement

program; and the obvious next progression in areas of water enforcement would be areas of wet weather and so forth.

Mr. TIERNEY. Do you have a timetable on that?

Mr. SUAREZ. We’re hopefully going to start the next wave of analysis, and to get it into final form. We just started. We hope to get

that process underway shortly.

Mr. TIERNEY. How long does a report like that generally take for

the department?

Mr. SUAREZ. To give you an example, the NPDES majors performance analysis, I authorized that soon after I was confirmed,

which was in August; so I think it was around September I authorized it, in 2002, and in February 2003 it was produced.

It will take some time, because there is significant consultation

with the regions and the States to make sure that we get it right,

and that we do appropriate analysis.

So it takes a little bit of time; but once we have it in hand we

use it. We have been using it since we’ve gotten it.

Mr. TIERNEY. Now, would you do the other analysis simultaneously, or would you do it progressively?

Mr. SUAREZ. Because of resource limitations, I think we would

probably do them serially rather than simultaneously.

Mr. TIERNEY. Now, the report talked about the quality and quantity of some of the data in the report. With respect to the majors,

it talked about needing more quality data on compliance incentives,

compliance assistance, capacity building, responses to citizen complaints, and outcomes from monitoring.

Do you agree with that assessment, that more work needs to be

done there?

Mr. SUAREZ. I do.

Mr. TIERNEY. Can you tell me, if that’s the case, what burden

then would the regional administrators and the States in fact incur

in order to do that kind of work?

Mr. SUAREZ. Yes, Congressman.

One of the most important things that we believe in, that I believe in, is that in order to measure the program we must measure

57

its effectiveness across all areas; not just the enforcement, but the

compliance areas as well.

So, what we are trying to do is to develop systems whereby we

can gauge, how effective is compliance; is it changing behavior that

results in improved waterways; is it changing processes to result

in less emissions being produced as a result of compliance rather

than as a result of a traditional enforcement action?

We have an Office of Compliance in our shop that is developing

a number of these types of, we’ll call them tools, but really protocols, on how you go about measuring compliance assistance.

Once we develop those, we push them out to the regions; and we

ask the regions to start working with the States to develop those,

to improve those, to make sure that we’re capturing that information.

It is a process. I’ll tell you that we’re in the process now of capturing better outcome measures for traditional enforcement actions,

and we’re moving into the compliance area. It takes time; but the

results, I believe, are something where over time we will see a better measure of how effective our work is.

Mr. TIERNEY. One of the difficulties, I understand, in drawing

conclusions on the effects of penalties was the lack of data coming

in from any of the States. Is that still the case?

Mr. SUAREZ. The data is not required right now to be input by

the States, so it is spotty. We believe that with a modernized PCS

system——

Mr. TIERNEY. PCS system, again, being?

Mr. SUAREZ. I’m sorry; permit compliance system—with a modernized permit compliance system that data will be entered into

our data bases, and we’ll be able to do some critical analysis along

the lines suggested in the report.

Mr. TIERNEY. Are you going to require that voluntarily; are you

going to change a rule or regulation, or are you going to need legislation to do that?

Mr. SUAREZ. We’re going to do it by our guidances in our policies.

Mr. TIERNEY. And you’re confident that will get you the information you need?

Mr. SUAREZ. We think so.

Mr. TIERNEY. Now, there was some mention in the report about

the effective date for that work being done being postponed. Was

that resolved; and when do you expect that to occur?

Mr. SUAREZ. We are currently on schedule to have permit compliance system modernization, the first phase, up and running by December 2005.

The President’s budget includes a request for $5 million, which

would keep us on track. We have just completed the detailed design phase, I think it closed on September 30, where we solicited

comments from the regions, States and stakeholders about what

could be done with our detailed design.

I say that all in background, Congressman, to tell you, assuming

that funding continues in place for 2004, 2005, 2006, we think we

are on track to meet our deadlines now.

Mr. TIERNEY. I happen to think, and I agree with the chairman,

that it’s important to know what the effects are of enforcement, of

assistance to violators, as well as the penalties. We’ve got to get

58

some grip on which is more effective or, used in tandem, how we

balance them and move forward on that.

One of the questions that was raised in the report—and again,

some of these are tongue-twisters—we were talking about the most

extreme exceedances of toxic-water-quality-based permit limits.

We want to know whether or not those exceedances were just the

results of lack of a technology that was available, or was it strictly

a cost issue, or was it some combination of those. Have you been

able to get an answer to that?

Mr. SUAREZ. We’re in the process of doing just that, Mr. Tierney.

What we have done has resulted in the report. One of the recommendations in the report was to use the data to help us look at

things like toxic exceedances over a certain percentage threshold.

What we have done is we have created a document that will be

used to help us manage the program called Watch List. The Watch

List has incorporated this type of information where we will identify what we will call the sort of possible facilities that might be

a persistent problem.

If it has an exceedance of over 1,000 percent, I can tell you it will

be on that list.

The Watch List, then, is not a targeting tool, but rather a management tool whereby we engage the States in conversation about

what is the problem. Is it a technology problem, is it a permit-limit

problem, or is it a compliance problem at the facility?

Once we make that determination, we then can determine what

we need to do to address that problem, to bring that exceedance

down to where it needs to be.

The result of those conversations will be some enforcement work.

There will be more conversations with the Office of Water about

what kinds of permit limits are in for some of these facilities, and

what kinds of compliance assistance we need to do to get these facilities to bring the levels back down.

It’s going to involve all of that, but it’s going to help us manage

our information and our program.

Mr. TIERNEY. Are you going to make the Watch List information

public?

Mr. SUAREZ. It is not our intent to make it public.

Mr. TIERNEY. Why not?

Mr. SUAREZ. Because it is a management tool. We need to be able

to look at that information, evaluate it, and have a reasoned discussion with the States about what the path forward is for some

of the facilities on the list, without it being a target list. That’s fundamentally not what it is.

We believe there is a vast amount of information available to the

public to get a handle on what may be happening or may not be

happening at the facilities in their neighborhoods.

Again, I point you back to the enforcement and compliance history online system, which is something we launched in 2002 of last

year, November 2002; and it’s now final.

We think it is critically important that we be able to have candid

and probing discussions with our States. Our concern is that using

the data that we have on our Watch List and making that public

will force reactions that may not be in the best interests of where

we need to put our resources.

59

Mr. TIERNEY. You think that outweighs the benefits that might

be gathered from having the public be aware that an entity is on

the Watch List, and having their scrutiny and their observations

play a role?

Mr. SUAREZ. I do because, again, the presence of a facility on the

Watch List doesn’t mean that it is targeted for enforcement action.

I think that would be a concern on our part. I don’t want to

speak for the States. Mr. Thompson is here, and he can address

that. I believe, however, that there will be a concern on the States’

part that there will be an expectation that an enforcement action

will follow when a facility is on the Watch List.

Because it is a management tool, not a targeting tool, that may

not be the case. There may be reasons why the facility is there that

have absolutely nothing to do with the lack of an enforcement presence or awareness of a problem at the facility.

So we can believe we can manage a program with the Watch List

best by having a dialog with the States, and then addressing the

problems going forward. The public still has the information that

they need to make their decisions.

Mr. TIERNEY. Thank you.

Mr. OSE. I read the testimony about the Charles River, which I

thought was very fascinating.

You have established a process by which there are 87 monitoring

stations, and you can track virtually on an hour-by-hour, day-byday, week-by-week basis trends of the water quality in the river,

and if there is an anomaly or something you can then go to the

point where the anomaly surfaces, so to speak, and then start looking.

And I actually think that you have in fact gone and done some

CSO investigations in this manner.

I think that probably one of the great lessons of the project itself

is that by actually measuring water quality you’re able to, if you

will, reverse course and find the source of any pollution.

What efforts has EPA made to expand the use of these performance measurements to manage other aspects of the water program,

either of you?

Mr. VARNEY. Well, on a regional basis and on a national basis,

we’ve been emphasizing watershed approaches in our work.

We had an initiative in which there were 20 watershed grants

that were distributed all across the country, similar to the Clean

Charles initiative, to encourage this kind of holistic thinking using

a results-based approach to improving the water quality and setting a high bar for fishable/swimmable, and then measuring our

progress over time toward the achievement of that goal in the

river, as opposed to only focusing on the facilities along the river.

And what it’s been able to do for us is to enable us to better

prioritize our work, and to identify areas where there were aginginfrastructure problems that were seriously contributing to our difficulties.

That enabled us to work very closely with the watershed groups,

not only with the States but the watershed associations. I believe

you’ll be hearing more on a later panel about that.

I want to emphasize that this partnership is not only with our

State agencies, but also with our watershed groups who are out

60

there on the river helping us monitor, helping us identify problems

and bringing problems to our attention so that we can get them

corrected.

We’ve used a compliance approach as well as an enforcement approach, and have focused on all the contributions, which include

non-point sources of pollution, not just the larger discharges.

Mr. OSE. Mr. Suarez, do you have anything to add?

Mr. SUAREZ. I would say that we are fundamentally continuing

to look at ways that we can integrate the strategies so that we

have compliance assistance and enforcement.

I point to our CMOM program—yet another acronym, and I

apologize—capacity management operation and maintenance, at

CSOs.

This is a program designed to work with municipalities to identify ways in which they can improve their CSO and SSO problems

by undertaking an evaluation of their combined sewer system or

their sanitary system and looking at what types of management

and O&M steps they can take to improve short of having to invest

significant capital in the design and implementation of a long-term

control plan, requiring building of all sorts of new things.

The CMOM program has proved effective in our Region 4. It is

one that we are rolling out to all the other regions that have significant CSO and SSO problems; and it is just the kind of strategy

I think you’re referring to, Mr. Chairman.

Mr. OSE. It’s interesting how technology’s advances have allowed

us to accomplish so many things.

Across the street from my house is a creek. One of the projects

at the magnet high school down the street is that they monitor the

water quality at various points along the creek.

Now, the ECHO system I believe, if I’m correct, is basically an

online ability to post whether or not a facility is compliant. I wonder whether or not it’s possible to take that and tweak it so that

it can track watershed compliance.

Mr. SUAREZ. I believe we have a link to our list of impaired waterways on the ECHO and compliance Web page, or that through

our Web page you can get a list of impaired waterways; and so

there is a way to link them up. It may not necessarily overlay from

one data base or another.

That is something I can take back to our guys and see if there

is the ability to do that. Because, I will tell you that, when we look

at targeting and prioritization of where we need to take our work,

being an impaired waterway is a critical component for us to determine where we want to spend time and our resources.

Mr. OSE. The reason I ask the question is that, in Sacramento

as well as here in Ipswich or Peabody or Boston or wherever, I

know there are individuals who are very interested, who have

worked as volunteers in different organizations, who would be able

to then do the monitoring, if you will, on this watershed or that,

to provide the data electronically.

One question I do have is relative to a watershed’s monitoring.

If you think of the Charles River project as the template, are

there limitations to its applicability? In other words, is there a

river too large or a watershed too small for that to be used?

61

Mr. SUAREZ. Mr. Chairman, I’m not aware of any limitations

other than resources and simply the vastness of this great Nation.

We have only evaluated about 40 percent of the waterways in the

United States. That is my understanding of what the numbers are.

So there is just a tremendous number of waters in the United

States that are still not even evaluated for us to be able to undertake that kind of analysis that you are referring to.

I’m not aware of any limitation technologically that would impede us from doing that kind of holistic watershed monitoring that

was referred to that was undertaken in Region 1.

Mr. OSE. I’ll be turning it back to Mr. Tierney here in a second.

The types of measurements that you used, for instance, on the

Charles River, the mercury testing for coliform fecal matter and

your testing for algae, are there specific tests that are precursor indicators of impaired waterways?

What I’m trying to do is build into the record something that

somebody who might be in Santa Fe, NM might read at some point

and say, maybe I’ll try this.

Are there points of attention, if you will, that particularly highlight an impaired waterway?

Mr. VARNEY. Let me just add a couple of things to what J.P. said.

One is that there are different data bases that exist; and one of

them is called STORET, which contains water quality data on a

site-specific basis.

Just as I was leaving the State of New Hampshire, we were involved in establishing a data base that was location-specific; if you

owned a home on a specific lake or were interested in a certain segment of a river, you could click onto that and then call up all of

the water quality data that had been collected for that lake or pond

or river segment. That would indicate what the water quality was

in that area, all the parameters that were tested and who tested

it, whether it was State staff or whether it was volunteers through

a watershed association.

So there are some other data bases that come into play that

would be of significant use to watershed organizations and to help

identify place-based approaches that make sense.

Also, our approach has increasingly become related to non-point

sources of pollution; because as we have reduced the number of

point-source discharges and the severity of the point-source discharges, which tended to mask the non-point sources that were out

there, we’re now finding that these non-point sources are more easily identifiable, because we’ve reduced the pollution coming from

these larger point sources so much and so significantly.

This has enabled us to undertake a whole range of new techniques.

For example, in some of our beach activity we’re doing work that

is DNA-type testing to identify different types of bacteria, and what

the source of that bacteria was; was it from human fecal matter,

was it from ducks, was it from dogs or pets, was it from

stormwater runoff.

The real key has been to not only increase our monitoring, as

we’ve done for all of our beaches in this country and to provide that

information to the public, but to also trace it back to the source.

62

By being more consistent in tracing it back to the source and pinpointing the problem and dealing with that problem, we’re able to

achieve much more environmentally for less cost, and to be much

more effective in working in partnership with local communities

and with local watershed groups.

Mr. OSE. Congressman Tierney.

Mr. TIERNEY. Mr. Suarez, according to the reports the average penalty on violators is around $5,000. The civil penalty could be up

to $25,000 per day.

I’m curious to have you tell us why the penalty average is so low,

and what effect, adverse or positive, you think that might be having on the present amount of deterrence.

Mr. SUAREZ. One thing I want to reiterate before I go further is

that the State data is incomplete. We do not require that currently.

So I’m reluctant to draw any large conclusions because of the

lack of data that we have on State enforcement, which constitutes

75, 80 percent of the overall national enforcement information that

we have.

We do have the EPA data that we do enter, and that is consistent with where the State data was coming out of; you correctly

identified that $5,000. That is a number that I think bears future

scrutiny.

We are doing that, and one of the recommendations in the report

has asked what is the cause for this fairly constant what I would

call modest penalty amount of $5,000 or $6,000 for a violation.

We are going back to look at whether or not there is appropriate

escalation, which is one of our enforcement response policy requirements, that a facility doesn’t start at $25,000 or $27,500 a day, but

rather we escalate in the event that there is a repeat offense.

We are going back and looking at facilities to see if there are repeat violations, and providing for escalation of fines and enforcement responses. We’re also looking at seeing if there is a connection between the dollar amount of a penalty and the behavior of

individuals.

I will point out that this past year we had the largest Clean

Water Act penalty ever assessed against a company in the United

States.

That was a $34 million penalty against Colonial Pipeline for an

oil spill that impaired a number of miles of rivers and streams, and

had a number of incredibly significant environmental impacts.

That penalty certainly gets the attention of everybody; and lets

them know that, if you violate the Clean Water Act, there are serious consequences on the penalty front for doing so.

Mr. TIERNEY. It will also get your averages up there a little bit.

The report also talks about the decline of enforcement activities,

in the last few years before it was issued, of some 45 percent.

You reacted to that, I believe—don’t let me misquote you—I

thought you said that a lot of that was attributed to the fact that

you were shifting some of your emphasis to other enforcement

areas.

My question is, shouldn’t the EPA have enough resources to

focus adequately on both of these areas?

Mr. SUAREZ. How we manage our resources is always, I think,

going to be one of the challenges for my office.

63

Under the President’s request we have 3,411 full-time-equivalent

employees, and we have in this most recent budget requested from

the President over $500 million in resources for us.

I think for us the goal is to make sure that we are putting our

resources in the right place.

I don’t necessarily believe in bigger government, I believe in better government; and if we can use our resources more effectively,

then I want to do that.

But if, Mr. Tierney, at the end of the day we don’t have adequate

resources, I am very comfortable going to my Administrator and

asking for more resources when needed.

Mr. TIERNEY. Shouldn’t we be a little concerned, though, at being

asked to make a prioritization between one of these areas and another?

I would suggest maybe a review has to be done sooner rather

than later. The 45 percent decline that we have heard mentioned

is a precipitous decline on any basis, and I think it is going to come

down to resources. I’d like to have further interaction with your office on that as we go forward.

By our calculations, it looks like the administration is looking to

cut 54 enforcement positions. What’s the effect of that cut going to

be on this region? In one previous letter, you may recall that you

indicated that you were in fact studying consolidation or changes

in your field offices.

I’d be really interested in knowing what that study shows. Are

you really thinking of closing down some field offices and consolidating them? How does that affect our region; how does it affect

compliance there? All of those issues, I think, are related.

Mr. SUAREZ. As to the notorious 54 FTE, I apologize, but I think

a little background here is helpful.

When the President submitted his budget request last year, I believe we were operating under CR. We didn’t have a final budget

in place yet. The President’s increase was for a 100 increase in

FTE.

Subsequent to that, Congress gave us 154 FTE for the operating

plan. The result of which is that now we are faced with a budget

that looks like a 54 decrease in FTE rather than, as the President

intended, a 100 FTE increase in his budget.

We will use however many resources we get. We are trying to operate at full capacity; and with more resources, absolutely there is

more work to be done. We feel comfortable right now that our most

important strategy is to look at the employees that we have, and

where we’re putting them.

As to consolidation, I believe you’re referring to, Mr. Tierney, our

criminal program——

Mr. TIERNEY. Right.

Mr. SUAREZ [continuing]. And we are in the late stages of a review of our criminal program.

I’ve asked a senior member of my staff, who is not a political appointee, to undertake that evaluation for me. He has been doing a

fantastic job. We anticipate that report will be concluded in November, and one of the issues that will be addressed there is whether

or not consolidation of offices is appropriate and would allow for

more effective use of our criminal enforcement program resources.

64

Mr. TIERNEY. So it’s premature to tell us how it would affect our

region?

Mr. SUAREZ. Yes, it is.

Mr. TIERNEY. At one point in our communication back and forth,

you indicated that having 1,500 uncompleted investigations was

normal. Do you still hold that position?

Mr. SUAREZ. Again, I don’t mean to quibble with terminology, but

we have differences for a case open as opposed to an investigation

started.

In order for an investigation to be opened, if you will, it can involve perhaps something as vague as an anonymous letter that

comes into the agency saying XYZ facility is polluting in violation

of their discharge permit. We may have nothing else to go on.

We’ll open up that matter, but it won’t become a case initiation

until we’ve dedicated a certain amount of time, or there is credible

evidence that would warrant further investigation.

That level of open investigations has been fairly constant over

the years, and is to be expected. We want to address that because

we don’t want them to stay open that long——

Mr. TIERNEY. Some of them could be pretty important or significant.

Mr. SUAREZ. Some of them may be; when they’re that important

a full case will be opened and initiated, and we’ll move from there.

I’ll note that last year we had the highest number of cases initiated ever in the history of the criminal enforcement program.

Now, a fair number of those were counterterrorism-related in response to September 11; but even our core program had over 480

cases initiated in the criminal program. That is one measure of

how active we are.

I think that the answer, Mr. Tierney, is that we are very active.

Some of those investigations turn into cases and some don’t.

Mr. TIERNEY. Just to wrap up, I know the chairman has more

questions, but we were talking about 154, 100.

There are many of us who believe you could use quite well 154.

That’s compliments to you and Mr. Varney and the people that are

working there.

We don’t want to have you form priorities where enforcement

drops 45 percent in one very important area because you have to

switch resources over to another equally important area, just to

make that my position.

Mr. VARNEY. Thank you, Mr. Tierney.

Mr. TIERNEY. Let me just wrap up, then, with a couple more

questions I wanted to cover.

One was the Federal Facilities Significant Noncompliance rate.

The report indicated it was some 5 to 15 percent higher than other

facilities. I’d really like to just talk briefly about, what can we do

about that?

Is it just because of the infrastructures deteriorating in those

areas, or the funding for infrastructures not being there? What do

you have in mind to deal with that, short of penalties?

Mr. SUAREZ. I think, Congressman Tierney, that the aging infrastructure is a critically important issue that the Federal facilities

must address.

65

Just as the communities in Region 1 are facing challenges because the infrastructure is old and capacity is not there to meet the

growing demand, so too in our Federal facilities we have expanding

services, and we’re just not able to meet some of the capacity that

is there.

Some of the things we are doing is, we are providing more compliance assistance to our Federal partners, so that they understand

our obligations; more importantly, they understand what it takes

to get a facility into compliance.

We have just launched an effort to upgrade and improve our Federal Facilities Compliance Assistance Center, which is a Web-based

system which would allow our Federal partners to go in, look at

our data base, look at their problems, and figure out how to correct

them.

We are upgrading that system. It’s an important system, and it’s

one that will help.

We are also in the process of undertaking some, for want of a

better word, audits of our Federal Facility partners where we will

be invited in—it’s not an inspection; it’s an audit—to evaluate their

facility and to look at where improvements can be made in order

to get the facility back into compliance.

We’ve had a number of takers. Our success rate has been terrific.

We are again inviting our Federal partners, letting them know

that there are resources available to them. It’s not adversarial, it’s

cooperative; and, we think we’re going to get some good results

there as well.

Mr. TIERNEY. I’m going to telescope some of these things down.

I assume you took the report, and you’re going to address all

these issues in it?

Mr. SUAREZ. We are.

Mr. TIERNEY. Issues of penalty and escalation, you mentioned

earlier. I think those are very important to look at to see what the

effects of those are.

Do you agree that at this point at least there appears to be a

positive relationship between what EPA or the States do in enforcement activity and compliance?

Mr. SUAREZ. I think that there does seem to be a correlation.

Mr. TIERNEY. I think there is, too, and I’d like to see a report

come through about what we’re going to do about it.

What do you make of the fact that the report asserts that facilities that are subject to formal action have the highest rates of recidivism; which I think is a bit of a twist on that?

Is that because we’re getting problem facilities, as the report suggested, and therefore you can expect them to keep being bad; or,

is it because our penalties aren’t high enough, and they’re just sort

of laughing at us and carrying on business?

Mr. SUAREZ. I think it may be those things.

It may also be the need for us to really embrace the smart enforcement initiative; because, oftentimes when we’re chasing a

bean it’s very easy for us to go back to a facility that’s a big, complex facility and know that we’re going to be able to find a violation.

66

It’s much more challenging to spend time doing the CSO investigation and work that Bob has referred to throughout the morning.

So I think part of it may be that we tend to go back to those facilities where the bean is easy, not necessarily where the environmental benefit is to be had.

And I want to look to see if there is a correlation, as you spoke

of, of whether or not we can use that resource a little better.

If there is really nothing for the facility to do—it’s got a violation,

it’s going to have a violation again, it’s not changing its management process, it’s not changing its pollution-control equipment, and

we’re fining them modest amounts every year and nothing is happening—we have to ask is it escalation, or are we just going to the

easy ones and ignoring the big problems?

Some of the things I’ve seen from Mr. Tierney indicate to me that

our efforts have oftentimes been directed at getting outputs for the

sake of outputs, and not getting results that matter.

I’m trying to move us into an area where we can say comfortably

that our output has produced outcomes that made a difference—

that we’re not going to focus so much on going back to those same

facilities that are the old tried-and-true, the old reliables, we know

how to get them, where to find them, and ignoring the big ones

that are out there polluting and impairing the waterways, that

would really make a difference.

Mr. TIERNEY. But you’re going to study what to do about the

ones that are out there, and that’s the escalation issue?

Mr. SUAREZ. That’s exactly right. There is no permit to pollute,

if you will; there is no allowance. You’re not allowed to pay a penalty and continue to pollute.

But, my instincts tell me that some of it is related to the practices that we had historically, and how we need to move in a new

direction.

Mr. TIERNEY. Let me wrap it up, then, with one positive note on

this.

I want to thank both of you, and encourage both of you to continue on with your issues of environmental justice.

I know what you mentioned in your testimony is important. If

you have comments to make on it, that’s fine; but, I just want to

reiterate the fact that I agree with you on how important that is,

and I want you to come to Congress with any suggestions you have

about making sure we address that issue.

Mr. SUAREZ. Mr. Tierney, I’m delighted that you brought this up.

One of the things we’re doing in our next planning cycle is to

make sure that geographical targeting, to include watershed and

environmental-justice communities, is part of what we’re doing.

I feel very strongly that we must make sure that our environmental-justice efforts are begun in earnest, and that no community

is bearing more than its fair share of the environmental burdens.

It’s something that we believe in, that the administration believes in, and you’ve got nothing but our full support.

Mr. TIERNEY. I want to thank you both for your testimony.

Mr. OSE. I want to thank both of you for joining us today.

We have some questions that did not get asked, but we’ll send

them in writing; and a timely response will be appreciated.

67

And again, we appreciate your being here.

We’re going to take a 5-minute break.

[Recess.]

Mr. OSE. We’re going to reconvene here for the second panel of

our witnesses for today’s hearing.

We are joined on this panel by Steve Thompson, executive director of the Oklahoma Department of Environmental Quality; Roberta Savage, executive director of the Association of State and

Interstate Water Pollution Control Administrators; Dr. Shelley

Metzenbaum, director of the Environmental Compliance Consortium; Scott Segal, a partner at Bracewell & Patterson, LLP; and,

Pam DiBona, vice-president for policy, Environmental League of

Massachusetts.

Our next witness is Mr. J. Charles Fox, who is the vice president

of public affairs for the Chesapeake Bay Foundation; and, also Mr.

Eric Schaeffer, the director of the Environmental Integrity Project.

As you all saw in the first panel, we have a certain elaborate

dance we go through; we’re going to have to swear you all in.

Now, you have all turned in testimony for today, and we have

copies at the back. Everybody up here has provided testimony to

the committee. There are copies of everybody’s testimony in the

back for everybody who wishes to see it.

Again, our procedure here is we swear you in; and then each witness will have up to 5 minutes to summarize. Be assured I’ve read

your testimony; I assure you Congressman Tierney has too. You

don’t have to use all 5 minutes, considering the size of our panel;

it’s an unusually large panel.

[Witnesses sworn.]

Mr. OSE. Let the record show that the witnesses answered in the

affirmative.

Our first witness on the second panel is Mr. Steve Thompson, the

executive director for the Oklahoma Department of Environmental

Quality.

Mr. Thompson, you are recognized for up to 5 minutes. Welcome.

STATEMENT OF STEVE THOMPSON, EXECUTIVE DIRECTOR,

OKLAHOMA DEPARTMENT OF ENVIRONMENTAL QUALITY

Mr. THOMPSON. Thank you.

Mr. Chairman, members of the committee, I would like to take

a moment to explain my understanding of the delegation sections

of the Federal environmental laws.

It is my belief that the framers of these acts understood, even before it became popular, the phrase ‘‘Think globally; act locally.’’

The Federal laws reflect that activities such as research and development, nationally consistent standards, rulemaking, data analysis and program review are best accomplished at the national

level; but, that implementation could best be accomplished by those

closest to the problem, the States, and in some cases the localities.

The Environmental Protection Agency’s structure of strong regional offices was established primarily to ensure that local solutions could conform with Federal expectations.

Oklahoma’s citizens and regulated entities overwhelmingly supported us in our delegation effort because, like Congress, they understood that solutions could best be achieved at the State level.

68

Oklahomans also understood that if we chose not to adopt at

least minimum Federal standards and rules and to make a commitment to enforce them, and report our efforts, Oklahoma’s delegation status could be at risk.

For national consistency, however, Congress wisely retained EPA

authority to take enforcement actions where States could not or

would not take action. With that understanding, I want to talk a

little bit about Oklahoma’s concept of delegated enforcement.

It is a guiding principle of our agency that compliance with environmental statutes is our goal; and that enforcement, while clearly

a fundamental tool, is only one tool. To help set the stage, keep in

mind that Oklahoma has only two cities with a population greater

than 100,000, and that 94 percent of our communities have fewer

than 10,000 people.

Federal statutes require regulation of facilities that discharge

wastewater, whether large or small. While important, these discharging facilities represent only a portion of the total potential impact to water quality and of Oklahoma’s total effort.

We have 566 discharging facilities; however, the remainder of

our total universe of 2,300 wastewater facilities also have potential

impacts on water quality.

As in the Federal scheme, Oklahoma’s regulatory universe is not

limited to discharge situations. Any enforcement strategy must

begin with the approach that the regulated facility, whether large

or small, is responsible for knowing the regulations to which it is

subject. ‘‘I didn’t know’’ is never an appropriate legal reason for

noncompliance.

From a practical standpoint, however, many of our communities

do not possess and cannot afford to employ the kinds of technical

expertise necessary to understand the multitude of Federal and

State regulations. This is equally true of small businesses that are

swept into the inventory of regulated facilities.

The traditional closed-book test, where government relies solely

on the facility to understand regulation, while legally defensible, is

not practically defensible; so, we provide open-book tests, through

a number of efforts.

First, we provide communities with technical operational assistance. On the industrial and commercial side, we provide targeted

outreach by sector. We also authorize compliance periods after the

outreach to allow the facilities time to come into compliance. Then,

we inspect. Those who fail to take advantage of this opportunity

face enforcement.

Does this reduce the potential for collecting penalties? We hope

so. Does it increase compliance? We believe so.

But, obviously, our assistance and outreach efforts cannot and do

not resolve, or even reach, all noncompliance issues. Sometimes enforcement action is necessary.

A typical enforcement process begins when a violation is determined. If that violation is a release that is a substantial

endangerment to human health or aquatic life, or if the violation

is a failure to properly operate the facility, we will go directly to

an enforcement order.

In many cases the violation from municipal facilities is caused by

deteriorating infrastructure. In those cases we ask for an enforceVerDate 11-MAY-2000 12:27 Aug 02, 2004 Jkt 000000 PO 00000 Frm 00072 Fmt 6633 Sfmt 6633 D:\DOCS\94495.TXT HGOVREF1 PsN: HGOVREF1
69

ment report, we schedule compliance, and we monitor the completion of that effort.

I have to tell you that I am extremely reluctant to take financial

resources away from a community, particularly a small community,

in the form of a penalty when that funding is vital to meet planning and wastewater infrastructure needs. Our public-water-supply

supervision program is operated in much the same way.

In conclusion, I believe that enforcement should not be a separate and independent effort, and was never intended to be more

than a component of the total regulatory process. We strive for

compliance as our overriding goal; not annual penalties collected.

We urge the Nation to reclaim the unique roles of the States and

the EPA in protecting and improving the Nation’s environment;

and we hope that all of you here today recognize that the States,

despite their ever-shrinking resources, have an obligation to protect

public health and the environment that includes delegated Federal

programs, and beyond.

I’ll be happy to answer, at the appropriate time, any questions.

Mr. OSE. Thank you, Mr. Thompson.

[The prepared statement of Mr. Thompson follows:]

70

71

72

73

74

75

76

77

78

79

80

81

82

83

Mr. OSE. Our next witness is Ms. Roberta Savage; and, again,

she is the executive director of the Association of State and Interstate Water Pollution Control Administrators.

Welcome. I recognize you for 5 minutes.

STATEMENT OF ROBERTA SAVAGE, EXECUTIVE DIRECTOR, ASSOCIATION OF STATE AND INTERSTATE WATER POLLUTION

CONTROL ADMINISTRATORS

Ms. SAVAGE. Thank you very much, Mr. Chairman.

I have the joy and privilege of being born in Massachusetts and

raised in California, so that covers both the chairman and the

ranking member’s home States.

Mr. OSE. You’re moving up.

Ms. SAVAGE. And our association member from Massachusetts is

a board member, as well as my vice-president for California; so

we’ve got it pretty well covered today.

I would like to thank Danielle and the staff, Mr. Chairman, for

their fine work and for picking us up at the airport. I have really

enjoyed working with your high-quality staff.

I am the executive director of ASIWPCA, a position I’ve held

since 1978. I’ve been in the water business for more than 30 years;

and, like Steve, I started when I was a child.

And I’ve had the opportunity to work at EPA, with an environmental organization, and with a corporate association, again dating

back to 1978, which is now 25 years.

I’ve also had the joy and privilege of working with the framers

of the Clean Water Act, Ed Muskie, Howard Baker and others, who

are the foreleaders of the 1972 statute.

In talking with those folks about what they envisioned, it was

very clear that they knew that the program as they created it

would not be successful unless it was managed at the State level.

I listened to J.P. Suarez, and I listened to Bob Varney. I respect

them both tremendously; but if you listen to them, it sounds like

this is a Federal program.

The fact of the matter is that 45 of the 50 States are delegated

the Clean Water Permitting program. EPA manages only five

States. EPA has larger backlogs in most cases than the States do;

and as J.P. indicated, the enforcement data they shared with you

is only from five States.

When Bill Ricklehouse, a former EPA Administrator, was asked

these questions, he said the most effective enforcement and the

most effective thing we can do is to reach compliance; and to just

count numbers and just count beans is not what we’re about. What

we’re about is clean water, however we get clean water.

That would mean a number of different things. That’s the opportunity to educate. When a new permittee comes on line, you go and

you help them understand what the rules and regulations are. If

they’re having problems, you send your people out there; you make

sure they understand the requirements.

You go through the whole range of options administratively; and

if they’re a bad actor, then you litigate. Then you cause enforcement to happen, and you make sure that it happens. But again,

what we’re after here is compliance with the statute.

84

I’d like to go back because I think Mr. Tierney asked the question about what’s the system? And again, in talking with Mr.

Muskie and Mr. Baker, they knew that it had to start at the public

level.

So, what’s the first thing that happens? The public decides how

they’re going to use their water. They designate their use. Then

they set a standard, and then determine load allocations, so that

they can decide how much pollution can go into a water body and

still meet the standard.

So then you incorporate those loadings into a permit.

The next thing is that you make sure that you’re monitoring your

water, so that if anybody is violating a permit you know that; and

then you have your inspections, and then, if you’re not doing what

you need to be doing, then we litigate.

But that, to us, is a failure. That’s the last thing on the list. If

the State has to litigate, they haven’t done the first part of the program correctly.

In 1990, Mr. Chairman, there were 100,000 permittees. Today

there are 500,000; and that doesn’t even include the new Confined

Animal Feeding Operations [CAFO] regulations, Combined Sewer

Overflows [CSO] regulations, and the stormwater regulations.

When all of those things come on line, we’re going to have hundreds of thousands of permits more than we currently have.

There are lots of options. We can educate, we can outreach, we

can track, we can provide grants to local governments, and again,

we can go ahead and take action if we need to.

Again, this was never intended to be a Federal program.

It concerns me that the very issues that our Federal colleagues

are not doing what they are supposed to be doing—and I worked

for the agency, as many of us here on this panel have—like providing the kinds of implementation guidelines, providing the kinds of

policy regulations, providing the Permit Compliance System [PCS]

system, a data system that can successfully track what we’re doing

in the field—which we don’t have; it’s inadequate, it’s old, it doesn’t

track the data, it doesn’t track the toxics that you were asking

about, it doesn’t track mines, it doesn’t track CSOs, it doesn’t track

CAFOs—we’re asking the States to input all of this data into a system that doesn’t work.

I would like to suggest that the Feds are the backstop. They’re

not the pitcher, they’re not the catcher, they’re not the batter;

they’re the backstop, and they should only be used as a backstop.

I would like to close by saying that there are a couple of things

that are important here. Forty-five States have NPDES delegation,

and they only have half of the money they need to run these programs.

When Chuck Fox was the Assistant Administrator, we jointly did

a GAP analysis of how much is needed to run this program successfully. Half of the money we need, we don’t have it; it’s not

there. So definitely, the gap is somewhere in the neighborhood of

$700 million to $800 million. Half of that is needed for the compliance and enforcement program.

We need to close that gap; and I would like to conclude by saying

that I too concur that the enforcement component should be integral to the management program.

85

It should not be a separate initiative; it should not take away

from the overall management of the water program. As currently

structured at U.S. EPA, enforcement is costly, it’s inefficient, it’s a

turf battle; it is not the kind of management system that we think

we need at the Federal agency. It is cumbersome, and it doesn’t

function well. In short, the program and the U.S. EPA structure

needs an overhaul.

So, I will be submitting our monitoring program assessment survey for the record, an article I wrote on monitoring for the Environmental Institute, and finally our strategic plan, that says the goal

of the States is clean water everywhere for everyone, and that’s

what we’re committed to do.

Thank you.

Mr. OSE. Thank you, Ms. Savage.

[The prepared statement of Ms. Savage follows:]

86

87

88

89

90

91

92

93

94

95

96

97

98

99

Mr. OSE. Our next witness is Dr. Shelley Metzenbaum, who joins

us as the director of the Environmental Compliance Consortium.

Dr. Metzenbaum, welcome. You are recognized for 5 minutes.

STATEMENT OF SHELLEY METZENBAUM, DIRECTOR,

ENVIRONMENTAL COMPLIANCE CONSORTIUM

Dr. METZENBAUM. Thank you. Chairman Ose, Congressman

Tierney, thank you very much for the opportunity to speak to you

today.

My comments today focus on a critical but sorely underdeveloped

aspect of the environmental-protection system, the management of

environmental information.

Simply stated, we do not make enough use of information that

we already collect or information that we could get for a small additional cost. As a result, we miss opportunities to make the environmental protection system more protective, effective and efficient.

In recent years, EPA and several States have made significant

developments in this area, but they are the exception rather than

the rule. That needs to change.

EPA and the States, hopefully with strong bipartisan support

from Congress, need to make it a priority to collect, analyze and

disseminate environmental performance information; not just the

data, but the analyses as well.

It is the analysis that finds successful programs which can be

studied to figure out why they are successful. It is the analysis that

points to areas that need attention.

My statement today reflects insights I’ve acquired as the director

of the Environmental Compliance Consortium.

The Consortium is a collaborative effort of State environmental

protection agencies seeking better ways to measure, manage and

communicate what they do and what they accomplish, especially

about their compliance and enforcement programs.

I share with you today my personal views, not the official views

of the Consortium.

I want to draw your attention to two promising developments in

the use of performance measurements; the Clean Charles 2005 initiative, which Chairman Ose referred to earlier, and OECA’s recent

pilot performance analysis. My written statements discusses several other examples of noteworthy developments in the States.

In 1995 the New England office of the EPA decided that the

piecemeal way it was approaching enforcement did not make sense.

In one geographic area, the Charles River, it decided to break

away from looking at enforcement on a case-by-case basis, and

focus instead on improving water quality. The regional office set a

goal that the lower Charles River would be swimmable in 10 years.

To achieve that goal, it needed to know how clean the river was.

It found that information, not in its own data bases nor in the

State’s, but on the Web site of the local watershed association.

The watershed association measured water quality at 37 points

along the 80-mile stretch of the river once a month, and every

month EPA studied the data. In fact, the team leaders of the Clean

Charles 2005 Initiative are in the room behind me.

100

When a downstream monitor showed a worse reading than an

upstream one, which could not be explained by permitted discharge

between the two points, that narrowed the search for problems to

the area between the two points. EPA and the local jurisdiction

then walked the pipes to find the problems.

EPA found numerous illegal hookups to the storm sewer system

and grease balls that were at the juncture between the storm and

the wastewater systems, routing water that should have gone into

the wastewater systems, untreated out into the river. About a million gallons a day of raw sewage were going directly into the river

each day.

When EPA found the problem, it responded with tools appropriate to the problem; a warning letter, technical assistance, enforcement when it was needed, whatever was appropriate to the

situation.

The results of this change in EPA’s approach were measurable.

In 1995 the river was swimmable 19 percent of the time. Five years

later it was swimmable 65 percent of the time.

It’s worth noting that EPA would never have found these problems if it had done its business the traditional way, sending inspectors out to permitted facilities; because the problems that it found

this way showed up in unpermitted facilities, which hadn’t even

bothered to file for their permits.

Now, about EPA’s recent pilot performance analysis and the

Watch List, this is a giant step in the right direction; and EPA is

to be commended for this work. It’s very useful for EPA to analyze

EPA and State data to find variations that tell important stories.

EPA should do much more of it.

As a Federal agency, EPA is uniquely positioned to enhance the

value of information it and the States collect.

Unfortunately, this EPA analysis is currently only for internal

use. EPA may be planning to share this information with the

States, but not with the public. Limiting distribution of this information creates huge opportunity losses.

I can appreciate EPA’s reluctance to make the analysis public.

Problems will undoubtedly arise when they first release it.

The problems are not likely to be fixed, however, without public

distribution of EPA analyses on a routine basis. Preparing and distributing this sort of analysis should become central to the way

EPA and the States do business.

Finally, I’d like to add two cautionary notes.

First, information does not need to be perfect to be useful. Congress and the EPA should not let the perfect be the enemy of the

good.

Second, I urge EPA to adopt a performance-focused, informationdriven way of doing business. An information-driven system depends on information. Many current efforts to reduce regulatory reporting are counterproductive.

I thank you for this opportunity to share my views.

Mr. OSE. Thank you, Dr. Metzenbaum.

[The prepared statement of Dr. Metzenbaum follows:]

101

102

103

104

105

106

107

108

109

110

111

112

113

Mr. OSE. Our next witness is Mr. Scott Segal, partner of

Bracewell & Patterson, LLP.

Welcome, sir; you are recognized for 5 minutes.

STATEMENT OF SCOTT SEGAL, PARTNER, BRACEWELL &

PATTERSON, LLP

Mr. SEGAL. Chairman Ose, Congressman Tierney, thanks very

much for this opportunity to testify.

My name is Scott Segal; I’m at the law firm of Bracewell & Patterson.

For much longer than I’ve ever intended, I stayed in Washington

representing, corporations, yes; some trade associations; and even

some non-profits, on various issues of environmental policy.

Special thanks to Mr. Tierney for dragging us out of Washington.

Ipswich is beautiful, and it’s a beautiful day on top of that. Which

reminds me of my first point, the environment in a general sense

is getting much better, and we should spend a lot more time in it.

Gregg Easterbrook recently wrote that almost all trends for environmental protection are positive. Specifically with respect to

water-quality trends, he said that toxic emissions have declined by

44 percent nationally. Nearly every other trend is positive as well. In fact, after spending about $100 billion since the passage of the

Clean Water Act in 1972, about 90 percent of Americans live in

areas that are served by water systems that haven’t had a single

health-standard violation; so it’s a very good record.

The EPA continues to make a strong commitment to traditional

enforcement mechanisms as well as to compliance assurance and

programs like the watershed management that you’ve heard about;

some of the things Shelley talked about a moment ago.

I don’t know what the number of FTEs, full-time employees, is

that have been requested for enforcement, whether was it 170 requested or 154 adjusted or what. I’m not really sure.

All I know is this. Could the number of enforcement staffers

working on water issues specifically, or working for the increase for

enforcement issues generally, could that number be higher? Yes, it

could be higher; absolutely, it could be higher.

But the fact of the matter is, we don’t protect the environment

or enforce environmental programs in a vacuum. In terms of what

our request was for the 2003 budget, the actual number of employees on the Federal payroll in civilian—it may be even higher, I suppose—in civilian capacities went up about 46 percent.

That’s because of all the new people that were hired at the

Transportation Security Administration; all the people that

checked our baggage, probably, for those of us who flew in here.

Why do I bring that up? Let’s just say that we don’t protect the

environment, or advance any other social policy, completely in a

vacuum. There are many other things the government is trying to

accomplish simultaneously.

I think it’s unfair at times to simply observe that numbers are

down here, numbers of employees are up here, when the government is attempting to do so many other things and our priorities

do change.

Does that mean that environmental protection is not important,

or less important? Certainly not. September 11 is just a good examVerDate 11-MAY-2000 12:27 Aug 02, 2004 Jkt 000000 PO 00000 Frm 00117 Fmt 6633 Sfmt 6633 D:\DOCS\94495.TXT HGOVREF1 PsN: HGOVREF1
114

ple of the way in which social policy tends to change, and the allocation particularly of Federal employees tends to change, over time.

2003 was the largest increase, in history of this data being kept

at least, for an increase in the number of Federal employees.

A word on what we’re talking about when we talk about enforcement of environmental law. Are we really talking about simply a

Federal program? Ms. Savage knows that’s not the case, and I

want to agree with that.

No, of course. In fact, Mr. Thompson’s predecessor testified a couple of years ago from ODQ that in fact it is the States which are

called upon to do the majority of the work when it comes to enforcing environmental laws.

His predecessor in fact testified that, if EPA begins to aggressively pursue national or regional initiatives without adequately involving the States, there is serious potential for damaging the

EPA-State relationship.

It is not some academic exercise regarding federalism here; although it’s an important principle, of course. There are significant

downsides if the EPA-State relationship is undermined.

The practical impact of undermining States can be to slow down

the rate of settlement of environmental cases by reducing the confidence defendants place in the ability of the States to be the final

word on a given set of facts.

One practitioner observed, ‘‘From the States’ perspective, the

threat of EPA overfiling State enforcement actions may significantly undermine its ability to obtain effective settlements with

regulated entities.’’

Here’s the reason why. The State comes into your place of business and says, you have violated the law; we would like to sign a

settlement agreement with you that stipulates what you will do to

fix it, and may stipulate a fine.

If you know that the EPA can look at the same set of facts and

overfile on the States, then there is simply no sense of finality; and

it undermines your confidence to want to sign a settlement agreement. That’s a most unfortunate result.

There are of course direct downsides to having inflexible approaches to environmental enforcement. Eric and I made a cottage

industry running around the country talking about the Clean Air

program, which lasted a couple months.

In that program, pollution-control technologies are discouraged

from being implemented and being installed if people believe they

will trigger enforcement action; but I promise I won’t hijack the

hearing to talk about that anymore.

Mr. OSE. You’re right about that.

Mr. SEGAL. Too late.

The same is true for Water Act programs as well.

There are examples of an industrial facility having an eye-wash

station, which as you know is required by the Occupational Safety

and Health Administration, being penalized for being, ‘‘an

unpermitted water point source to the facility.’’

Does that go on every day with inspectors? Probably not; but the

point is we have to be flexible in the way we implement our enforcement mechanisms. If we simply evaluate every environmental

115

program by how many fines are issued and how many cases are

filed, that’s a bad approach.

Looking to the future, what does it hold? For Water Act policy,

there are very innovative policies that may obtain. For example,

there are water trading programs, watershed management programs; and all of these are important developments for the future.

I want to focus for 1 second on trading. We’ve heard a lot about

trading in the air context; there are also trading programs in the

water context.

One thing that I would really hate to have occur is if we ever

get to the point—and this maybe gets to Ms. Savage’s point about

why we need to fold enforcement officers back into the program office at the EPA—if we ever get to the point where enforcement officers can essentially use an existing docket of cases that have already been filed enforcing a particular interpretation of environmental law to avoid clarifying or reforming that underlying environmental program. They would argue that to do so would be a

slap in the face of enforcement. If that ever gets to be the case,

then enforcement officers will essentially hijack the program officers.

That’s a very dangerous proposition. It discourages innovation,

and in my judgment discourages environmental protection.

Thank you.

Mr. OSE. Thank you, Mr. Segal.

[The prepared statement of Mr. Segal follows:]

116

117

118

119

120

121

122

123

124

Mr. OSE. Our next witness is Ms. Pam DiBona. She’s the vice

president for policy of the Environmental League of Massachusetts.

You’re recognized for 5 minutes.

STATEMENT OF PAM DIBONA, VICE PRESIDENT FOR POLICY,

ENVIRONMENTAL LEAGUE OF MASSACHUSETTS

Ms. DIBONA. Thank you, Chairman Ose and Congressman

Tierney, thank you very much for having me here this afternoon

to speak about the Clean Water Act enforcement.

As you mentioned, I’m vice president for policy at the Environmental League of Massachusetts. We’re an independent statewide

nonprofit organization, and we focus on making sure that sound

environmental policies are developed and then implemented in the

State. We work with more than 50 organizations around the Commonwealth, including many watershed associations.

Before I joined the Environmental League of Massachusetts, I

was lucky enough to work at the Charles Watershed Association

while the Clean Charles monitoring program was being put together.

I guess one of the core messages from my testimony will be that,

before we start talking about handing off all responsibility for enforcement of the Clean Water Act to the States, we might want to

look at what the States are doing with their current mandate to

enforce.

The Environmental League has looked for several years at the

Department of Environmental Protection, which is the agency

that’s primarily responsible for enforcing the Clean Water Act in

Massachusetts; and their history has been spotty.

We’ve seen decreases in the number of inspectors; we’ve seen

penalties that do not recover the economic benefit that violators

have gained by not following the law. The agency also has no idea

of how to figure out how many of the facilities are actually in compliance out of the ones that they have in their system.

And then, once they get them into their system with a violation,

they don’t have a cohesive, comprehensive program for following up

on those violations and making sure that they were fixed after the

fact.

We’re currently updating two previous reports on enforcement by

DEP, and we’ll have that done by the end of the year. We’re happy

to pass that on to you when we’re done with it, plus give you the

2002 and hopefully 2003 data.

One of the core reasons why enforcement is lacking in Massachusetts, I think, is lack of resources. In the past there has been lack

of resources, because they’ve shifted money from enforcement programs to making sure that permits move along more quickly.

More recently, they’ve been taking in the resources and moving

them, trying to keep enforcement level; but boy, are we seeing

changes in how the agency is being funded.

Just in the past 2 fiscal years, they lost 25 percent of their work

force, or 289 full-time equivalent employees. We’re thinking that in

fiscal year 2005, coming up, they’ll lose up to another 125 to 150

FTEs.

And I do know from talking to the agencies that having a Federal mandate to enforce the Clean Water Act is one of the only

125

things that’s keeping them on track with enforcement of the Clean

Water Act.

They have said to me that, as they look at where they’re going

to do disinvestments as the budgets are cut, that they’re sticking

with the federally mandated programs. Things like solid-waste

management are going to go by the wayside; because the Federal

Government isn’t saying, here, you must do this.

So we certainly in the States depend on having Federal mandate

and EPA looking over our shoulders to make sure that this is done.

I did want to just mention, while you were all talking about the

monitoring on the Charles River, it’s far more than the State has

done in the past on monitoring, and it did take a nonprofit watershed association to get out and do it; but they also had to raise a

lot of money to be able to do it themselves.

And they were very forward-thinking in making sure they were

out there, and had the volunteers who were out at 6 a.m. once a

month to pick up water samples, come heck or high water.

So I think that before we start talking about how much the environment has improved, or how much water quality is getting better, we really have to make sure that we have some data to back

that up.

I don’t know that having only 40 percent of our water being assessed gives us the backing to be able to say that our water is getting better.

And then, in my written testimony I did give a few examples in

other States of the horror stories that really are happening in other

States in terms of enforcement, including a facility in Alabama that

had 324 Clean Water Act violations before they were taken to task.

So I hope that this is useful to you as we move ahead.

Mr. OSE. Thank you, Ms. DiBona.

[The prepared statement of Ms. DiBona follows:]

126

127

128

129

Mr. OSE. Our next witness is Mr. J. Charles Fox, who is the vice

president of public affairs of the Chesapeake Bay Foundation.

Sir, you’re recognized for 5 minutes. Welcome.

STATEMENT OF J. CHARLES FOX, VICE PRESIDENT OF PUBLIC

AFFAIRS, CHESAPEAKE BAY FOUNDATION

Mr. FOX. Thank you, Mr. Chairman and Mr. Tierney. I appreciate the invitation to appear today.

Before joining the Chesapeake Bay Foundation, I had the pleasure and privilege of serving the Secretary of Natural Resources in

the State of Maryland, as Robbi had suggested, the former Assistant Administrator for Water in the Clinton administration.

The Clean Water Act, no question, has been responsible for tremendous reductions in pollution over the past 30 years; but I would

really differ with Mr. Segal, and suggest that our Nation has made

surprisingly little progress in meeting the fundamental goals and

requirements of the act.

Lack of enforcement is the key reason for this limited progress.

At one level, we’ve heard from a number of witnesses today, enforcement is the means by which government assures that the permit terms are met by dischargers. At another, more important,

level, I would argue, enforcement is also the obligation of the

States and the EPA to implement the act’s basic requirements.

Why is this distinction important? In Chesapeake Bay, if every

permitted discharge were fully compliant with its permit terms,

Chesapeake Bay still would not come close to meeting water-quality standards. Unfortunately, I believe our experience is not

unique.

The simple fact is that permit limitations themselves are not sufficiently stringent to protect water quality, and the States and EPA

are ignoring fundamental Clean Water Act responsibilities in far

too many cases.

The Clean Water Act requires that all point sources of discharges

of pollution have a permit that is sufficiently stringent to meet

water-quality standards. The act established a two part strategy to

achieve this.

First, the permits include so-called technology limits which are

based upon national-level regulation for categories of discharges.

Second, the permits should be further strengthened, if that is

necessary in order to meet State water-quality standards.

It is the second step that has been so poorly implemented, in my

opinion, by the States and the EPA; and, the results are painfully

obvious.

Over the past decade or more, our Nation’s water quality has not

improved; and, many indicators suggest that water quality is worsening.

In the Chesapeake Bay, monitoring data has shown that waterquality parameters such as dissolved oxygen, clarity, and algae

concentration have gotten worse, or no better, at the vast majority

of places in the past 20 years.

This summer, Chesapeake Bay experienced the worst dead zone

we have ever experienced, according to the USEPA.

What is needed? In a word, my opinion is leadership.

130

Today we understand well the impacts of pollution, the sources

of pollution, and the means by which we can control pollution. With

few exceptions, the solutions are at hand and the costs are affordable.

EPA and the States must seize every opportunity to strengthen

national water programs. Unfortunately, over the past few years

EPA appears to be heading in the exact opposite direction. My testimony has a few more examples of that.

In the Chesapeake we have come to a relatively simple conclusion about how to save the Bay: enforce the law. A majority of pollution in the Bay is regulated by the EPA and the States under either the Clean Air or Clean Water Acts.

Both statutes require that permit limits be protective of the public health and the environment, and that each law’s respective permits be attained.

Unfortunately, that is not how the permits are being written or

the laws are being enforced. For example, sewage treatment plants

are the second highest source of nitrogen pollution to the Bay; yet,

to the best of my knowledge, not a single permit has enforceable

nitrogen limits. That’s over 300 permits discharging over 1.5 billion

gallons of sewage a day, and no nitrogen limits.

In the Chesapeake, we have come to understand that we will

need to implement a host of actions to the practical limits of technology in order to save the Bay.

EPA and the States must carry out their existing obligations in

their permitting of large-animal operations, stormwater sources,

new development projects, power plants and sewage treatment

plants.

And Congress can help too. The pending highway bill, for example, is a golden opportunity to set aside funds for the States to control runoff pollution from the roads and highways.

In closing, our Nation has a proud history of tackling environmental challenges.

Workable regulations and consistent enforcement have formed

the foundation of virtually every pollution success story of the past

30 years. This will require bold leadership from the States and the

EPA.

In the Chesapeake, we are confident we can succeed; but we will

need your help and the help of others.

Thank you.

Mr. OSE. Thank you, Mr. Fox.

[The prepared statement of Mr. Fox follows:]

131

132

133

134

135

136

137

138

139

Mr. OSE. Our final witness is Mr. Eric Schaeffer, who is the director of the Environmental Integrity Project.

Sir, welcome; you’re recognized for 5 minutes.

STATEMENT OF ERIC SCHAEFFER, DIRECTOR,

ENVIRONMENTAL INTEGRITY PROJECT

Mr. SCHAEFFER. Thank you, Mr. Chairman and Congressman

Tierney, for the chance to testify.

I’m going to try to cover three questions quickly in wrapping up

here. One is the fundamental one, do we have an acceptable level

of compliance with the Clean Water Act? I think the answer has

to be no.

I think a second and separate question is, how is EPA doing with

the resources it’s been given? Pretty well, I think. That doesn’t

mean good enough, but pretty well.

The most important question is, what can Congress do to help

move EPA and the States toward the fishable/swimmable goals of

the Clean Water Act? Because, I think these programs badly need

your support.

On the first point, the Clean Water Act is routinely violated, and

in very serious ways. This is not a debate over bean counting; these

are violations of laws you wrote. I think you’re right to be concerned; they do have public-health impacts, and they do have serious environmental impacts.

The news media has covered violations at the so-called major

sources, the NPDES acronym we were using earlier. That’s a fraction of the universe.

We’ve got 15,000 large-animal feeding operations that EPA says

need Clean Water Act permits. Less than a third of those have

those permits, according to EPA. This is 30 years after the Clean

Water Act.

We’ve got violation rates that approach 70, 80 percent when it

comes to stormwater requirements. I think it’s a good thing that

EPA’s New England office focused on stormwater in its enforcement program.

When it comes to wetlands, we don’t have a clue what the compliance rate is in this country with respect to wetlands requirements.

A big problem that has to be addressed is, we’ve heard 3,400 fulltime employees for enforcement. I urge you to ask the General Accounting Office to take a look at how those resources are distributed against the size of the universe that EPA regulates. I’ll give

you a couple of examples.

I think you’ve got about 300 of those employees working on the

Clean Water Act, fewer than 30 patrolling 105 million acres of wetlands. Those are pretty hopeless odds when you stack the resources

up against the size and scale of the problems they’re supposed to

cover.

To the second point, given those limitations, I think the EPA is

doing pretty well. I think the agency was right to switch its emphasis to wet-weather flows; that’s clearly a problem in this area, but

also in many other parts of the country.

140

I think some of the settlements that Mr. Suarez has announced

recently are spectacular. They’re environmentally very significant.

These are very, very difficult cases to bring.

I can tell you, they are not generally the kinds of cases that

States like to do by themselves. I don’t think Governors like to take

their mayors to court very often, but sometimes it has to happen;

and, EPA has that role. Without it, I don’t think you’re going to

see those kinds of cases.

So I think Mr. Suarez and Mr. Varney have done pretty well

with the cards they’ve been dealt. I just don’t think the hand

they’re playing is good enough, and that’s I think maybe the most

important part to focus on.

Six points to make there.

First, stop cutting the budget. It has been cut by successive administration requests. The Bush administration started with 270

FTEs. Congress said no. They came back and said, how about cutting 130 positions? Congress said no again. This year it’s 54.

Next year is an election year, so I’m expecting to see maybe level

funding, or a claimed increase with the administration at the head

of the parade.

But I hope you’ll continue to push back. If you’ve got 30 people

to cover 100 million acres of wetlands, these are not programs delegated to the States. There aren’t enough resources to cover the terrain.

Second, I don’t think it’s a good idea to improve compliance by

weakening permit standards. I don’t think the Bush administration

needs any encouragement in that direction, so I hope you don’t go

down that path.

Third, I think maybe the one thing this panel can agree on is,

the data systems are a mess. When I heard Mr. Suarez say phase

1, I groaned and think Chuck groaned as well. We’ve all been

there.

When you hear phase 1 coming from a government witness, your

alarm bell should go off. It means a very long, slow process. We

spent a lot of money on this problem, and it’s moved by inches.

There is a lot of bureaucratic resistance at the State level, it has

to be said, to cooperating in this effort; I think you’re going to need

to push it.

We’ve heard a lot about State programs not being funded

enough. It’s true they do most of the inspections in permitting, and

that’s as it should be. It’s true these State programs are underfunded; they need to raise their permit fees.

Some of them need to establish permit fees. They do not even

have permit fees in some States.

The Clean Air Act requires a State that takes delegation of a

clean-air program to have permit fees to charge the polluters what

it takes to run the program. We need that in the Clean Water Act.

We don’t have it.

We pay to get into national parks; we should pay to pollute in

this country. I think that’s reasonable.

Another point, perhaps a little more mundane. Administrative

penalty authority is lacking on both the Federal and the State

level.

141

A lot of cases could be quickly resolved using administrative authority. The Justice Department doesn’t have the resources to take

every case to Federal court; neither do State attorneys general.

EPA’s penalty authority needs to be increased for administrative

actions. A lot of States cannot issue an administrative order unless

the polluter agrees with the settlement. That’s obviously unworkable, and that authority needs to be strengthened. I think that will

take an act of Congress.

Finally, if results are ultimately what we care about and what

we can agree on, you might want to take a look at the mandatory

minimum penalty program that New Jersey has instituted under

Republican Governor Ms. Whitman, which has dramatically reduced noncompliance in that State.

It establishes the principle that if you violate repeatedly a permit

limit you will pay; and, not surprisingly, that’s been absorbed and

understood by the regulated community, and compliance is much

better in that State. I hope you’ll take a look at that.

I thank you again for giving me this opportunity.

Mr. OSE. Thank you, Mr. Schaeffer.

[The prepared statement of Mr. Schaeffer follows:]

142

143

144

145

146

147

148

149

150

Mr. OSE. Mr. Fox, I have a specific question.

In your testimony at page 2, you discussed permitted discharges

and the aggregate effect that they would have on the water quality

in the Bay if they were all fully compliant. You stated that if they

were all fully compliant you would still have a problem.

If I understand the system, it’s the State, the 45 States, that

issue the NPDES permits; and you have Maryland, Virginia and

Delaware feeding into the Chesapeake.

It’s also my understanding that those three States that surround

the Chesapeake have an annual conference amongst their Governors. Does each State have a different permit standard?

Mr. FOX. The short answer is, yes, they do have different standards.

But in the end, the Bay itself, even being downstream, has

standards that have to be met by upstream States; so, it is incumbent on either EPA or the regulated State to write a permit that

is stringent enough to meet the standards of the Bay.

Mr. OSE. You’re saying the watershed goes beyond the three

States?

Mr. FOX. It actually goes up to Cooperstown.

And then it was determined that the fundamental issue is that

the permits themselves are not being written so as to include some

of the key pollutants affecting the Bay.

Mr. OSE. Well, you mentioned nitrogen.

Mr. FOX. Nitrogen is one of them.

Nitrogen is the biggest and most obvious one; and, we have a

number of concentrated animal-feeding operations, large factory

farms, if you will, that don’t have permits, that in fact have contributed to the degradation of Chesapeake Bay.

Mr. OSE. Would this be a case where EPA would overfile?

Mr. FOX. It could happen either way. I would argue that the

States initially have the responsibility to write this in their permits; and, if the States fail to do it, then the EPA, yes, has an opportunity to review all the States permits.

Mr. OSE. I’m still not quite clear on how to get through that.

Mr. FOX. Just to take it out of my backyard, I don’t know the

exact number, but I would bet that a majority of the States right

now face impairments from nutrients, nitrogen and phosphorus.

And, I would bet that the majority of the EPA technology standards, the uniform kind of blanket standards, do not really address

the nutrient problem.

So, it now becomes, in my opinion, under the Clean Water Act

incumbent upon EPA and the States to now write permits that will

in fact deal with the nutrient impairments that affect so much of

the Nation’s water.

Mr. OSE. Let me jump here a little bit.

Mr. Thompson and Ms. Savage, I specifically want to ask you

both, in your experience, does cooperation between enforcement

and regulatory personnel improve or diminish with compliance?

Ladies first; Ms. Savage?

Ms. SAVAGE. I’ll defer to him. He runs the programs; I’m the

Washington mouthpiece.

151

Mr. THOMPSON. I guess I don’t understand how divorcing the permitting people, the rulemaking people, from the enforcement people

improves compliance and enforcement.

The basic understanding of that permit and that rule lies in the

program area. I don’t have any statistics to back this up; I’ve never

understood how divorcing that piece of it improves things.

If you look at OECA’s organization, what EPA has done is taken

the enforcement folks out, and now they have two offices. They

have an Office of Compliance Assurance and an Office of Regulatory Enforcement, as if those were two separate things.

In my view, they are not two separate things. There is a continuum of things that you do in an enforcement case based upon the

specifics of that case, and you go along that continuum until you

find the right mix based on the specifics of that case.

I would suspect that what the regulatory enforcement group has

done, then, is then redefine themselves along a media line. So, I

suspect we have an office there, we have an office of water, and we

have an office of solid waste or hazardous waste.

So, how does it improve to separate them from the program, separate the compliance and the enforcement pieces from each other,

and then have media offices within those groups? It just doesn’t

make common sense to me.

Mr. OSE. You’re saying they should work hand in glove?

Mr. THOMPSON. They should work hand in glove.

Let me tell you something. When we write permits in Oklahoma,

the best ideas for how we get environmental protection come not

from our permitting staff, who tend to sit in rooms and wear green

eyeshades and garters. They come from our inspection staff; they

come from our enforcement staff.

So when we want to write a permit, a general permit or a specific permit, we get our folks together and we look within the Federal guidelines of what a permit must include about how to best

address a specific industry.

The people that know best about that are the people that have

been on the ground doing those inspections, doing that compliance

assistance, doing all of those things.

The other thing is, we have a Clean Water Act, we have a Clean

Air Act, we have the Resource Conservation and Recovery Act. We

do not have an overall environmental act.

So the Federal statutes themselves, in my opinion, mandate

those kinds of organizations.

Mr. OSE. Mr. Fox pointed out, and I’m paraphrasing, but the

threshold at the Federal level doesn’t address many of the things

that might be necessary to get effective compliance.

I don’t remember your words, but you talked about States having

a separate ability to adopt statutes for their particular needs.

States would retain the ability to layer on additional levels of protection of whatever nature they like, and then design their enforcement compliance programs accordingly.

Mr. THOMPSON. When we were delegated the NPDES program in

Oklahoma, we were required to show the resources for statutory

equivalency of the Federal program.

So our statutes and rules reflect the Federal rules.

Mr. OSE. As a base?

152

Mr. THOMPSON. As a base.

We have to continue to show that we have the resources to carry

out the program, based on a regional review.

Mr. OSE. In order to preserve the delegation?

Mr. THOMPSON. I have a half-FTE that sits every day and pounds

information into an inadequate EPA data base, the ARS data base

or the PCA data base. I don’t manage my program with that data

base; it’s impossible to manage my program with that data base.

So what I have done, and what many States have done, is create

a data base that allows us to manage that program.

Now, the effort that’s being made, through some work that I was

a part of, is to define data standards so that those separate systems that States are effectively using to manage those programs

could be tied to the national system so we can aggregate the kind

of data that we need to get a national picture of compliance and

enforcement and monitoring and all those kinds of things.

But, until that effort is complete, or until we’ve modernized the

national data bases to the point where they’re usable for managing

programs, you’re going to see the kind of data gaps that you see

in the reports that showed up in the Washington Post. I have to

admit that Oklahoma was one of them.

Maybe there are some reasons for that. I’m sorry, I’ll quit when

you tell me to; but in the national data base, if I have a municipal

discharger that is pursuing funding to fix an infrastructure problem, that facility will continue to show up in that data base every

time it reports.

That shows a level of recidivism even though, I have addressed

that with a specific order to fix that problem.

We’ve got to have an engineering report, we’ve got to have money

to fix it, we’ve got to have construction periods; we’ve got to have

all those things. But, that’s one reason.

Another reason is, when EPA delegated the program to Oklahoma in 1996, they kept a bunch of facilities; Oklahoma shows up

as being the one that is out of compliance with this thing, but a

lot of those things are attributable to the EPA.

One other thing, and I promise to——

Mr. OSE. I know we have a limit because I know what time your

plane leaves.

Mr. THOMPSON. That’s why I’m anxious to take my shot when I

can.

The Watch List, I believe that what J.P. says about that is right.

It is an excellent tool for the management of the program; it can

be an excellent management tool.

But, if it goes public, the same kinds of wrap-yourself-aroundthe-axle issues that we’ve got with the NPDES report, we’re going

to get with the Watch List. It is not the end of the discussion; it

is the beginning of the discussion. The public will take it, unfortunately, as the end of the discussion.

Mr. TIERNEY. Thank you.

Dr. Metzenbaum, what do you say about that?

Do you think the Watch List should be public? What are the benefits of it being public? What are the lost opportunities if it’s not?

Dr. METZENBAUM. I think the Watch List should be public. I

think there needs to be an initial wait time to clarify issues with

153

the States, and to explain the kinds of issues that Steve is addressing.

I think, if you don’t make it public ultimately, then those data

quality issues are not going to go away. You’ve got to fix that underlying data; and until you make the data public so other people

start to use it and analyze it, there just won’t be enough pressure

to clean up the underlying data.

Mr. TIERNEY. Do you agree, Mr. Schaeffer?

Mr. SCHAEFFER. I agree completely.

Mr. TIERNEY. Mr. Fox.

Mr. FOX. One hundred percent.

Mr. TIERNEY. You don’t agree.

Mr. SEGAL. Well, I’ll just say this. I don’t know enough about the

way the Watch List is put together to know if it should be made

public or not.

I do know from the past experience I’ve had with the Toxic-Release Inventory that there are so many nooks and crannies, too

many failures to update it at a particular time, and too much purposeful misuse of a particular data base to characterize particular

industrial sectors and other industrial sectors. By the time it’s all

said and done, there is so little risk information available in the

TRI that, if I were running a group and wanted to focus the resources of my community advocacy group on, ‘‘the biggest pollutant

in my area’’ and I used the TRI data to do that, I would almost

certainly be pointed in the wrong direction.

So, if it’s good data, release it; if it needs to be scrubbed a lot

more, then don’t release it yet.

Mr. TIERNEY. Better to scrub than to release?

Mr. SEGAL. That’s my sage advice. If it’s good data, release it.

Mr. TIERNEY. Ms. Savage, you have a good background on the

history in this area; you talked to the people who originally drafted

this legislation. Did you gather from them what their intention was

as to how the Federal law would be funded?

Ms. SAVAGE. Certainly. In 1972, for example, the wastewater

treatment construction program had a grant of over $500 million

a year.

From that point, under subsequent administrations, in the 1981

statute we went from $5 billion down to $2.4 billion; and now, with

the SRLF, the State revolving loan fund that was created in 1987,

and then subsequent to that with the drinking-water program, that

$2.4 billion has been cut in half.

So we went from $5 billion in 1972 to less than $1.2 billion just

on wastewater treatment facilities.

It’s a good thing that we’ve had 30 years of point discharge enforcement in activity; because if you tried to build this program on

$1.2 billion a year for sewer plants we would be in trouble.

As you well know, Congressman Tierney, for the CSOs and

SSOs, the funding isn’t there. You mentioned in your opening

statement how the money has gone.

So, it’s a real problem. We’re looking at trillions of dollars to enhance our infrastructure, and the money simply isn’t available to

do that; we’re going to have to look for Options B, C, D, E and F

because it doesn’t look like we’re going to have the kind of funding

we need to run these programs.

154

Mr. TIERNEY. Well, Option A is to go back to the intent of the

law, which is to put the Federal Government’s money where its

mandates are.

I don’t think there is a State or community that would resist

having some assistance with compliance. I think that continues to

be an extreme issue, at least in my district I know it is. They still

have the same regulations to comply with; yet, the money has been

dwindling, and the partnership has been fading.

Ms. SAVAGE. Our rule of thumb is that the Federal Government

should foot the bill for at least 25 percent of the overall program.

They certainly don’t do that at this point in time.

There has been escalation in requirements by orders of magnitude from where we were in 1972, and yet the dollar support has

gone down.

But I want to come back to a point that the chairman asked

Steve——

Mr. TIERNEY. Are you on the same plane as Mr. Thompson?

I’m going to interrupt. You can answer the question for the chair

when he revisits it again. I want to get at some other things, if I

may.

Ms. SAVAGE. Sure.

Mr. TIERNEY. Mr. Schaeffer, what about the claim that the

$5,000, $6,000 penalty limit isn’t something we should be concerned about; that the decline in enforcement activities by some 45

percent because of their shift in priorities isn’t something we

should be concerned about?

As a former enforcement official, what are your feelings on that,

and what ought we do about it?

Mr. SCHAEFFER. Well, I was part of that shift, so I’m implicated

in that sense. I think it made sense to go after wet-weather issues.

They’d been sitting for a while, and they’re very serious.

Again, I never said or thought at the time that meant leaving the

majors alone, or that giving them less attention was a good thing;

it was just the choice that we had to make, or at least the one that

seemed the most rational with the resources we’ve been given.

Again, that’s why I tried to split the questions. Are we getting

good compliance with the Clean Water Act? No. Has the agency

had to make hard choices? Sure.

Mr. TIERNEY. In your mind, is there a connection between the

level of enforcement activity and the level of compliance?

Mr. SCHAEFFER. Yes, absolutely. I just suggest we look at the

New Jersey minimum-penalty program for a good example of what

happens when penalties are collected routinely.

Just one last point on that.

A lot of enforcement, too much enforcement, consists of issuing

a series of paper orders to the same facilities. Those don’t really

have a whole lot of impact. Those need attention. Some States do

an excellent job; some States don’t. And that’s true for EPA regions

as well.

It’s hard to grab that $5,000 number without knowing what the

larger context is; but that’s not a very significant penalty, obviously, for a large manufacturer.

Mr. TIERNEY. If we go back to the escalation issue, are we really

looking at first trying to help people comply; but, if they’re not, the

155

idea is are we escalating appropriately so that they know they can’t

get one fine that they can meld into their overall operating costs,

and continue on ad infinitum?

Mr. SCHAEFFER. Exactly.

Mr. TIERNEY. Dr. Metzenbaum, the data information that we’re

talking about in the so-called PCS system, one of the issues seems

to be that States are not getting the information to that system.

I listened to Mr. Thompson. It may very well be because the system can’t be approached, can’t be entered, or whatever; then maybe

the States find it burdensome to provide that information.

Can you straighten that out for us? What’s the real angle here?

Dr. METZENBAUM. I wish I could straighten it out, Mr. Tierney.

I think there is a real challenge. If you are asking anyone to feed

a data system, you have to return the data to them in a more useful form; or they just don’t have an incentive to focus on that system.

I think that the distinction Mr. Thompson was making is that

he’s running his own management system.

Eighteen States use EPA’s permit compliance system. Thirty-two

States have built their own systems, and then have to separately

feed the EPA data system. I think part of that is that it’s just too

difficult to extract the data from the EPA system so that it’s useful.

You could imagine a system where you would have the discharge

monitoring reports for different facilities posted online so you could

compare them and organize them by watershed, so that you could

look at similar-size facilities, etc. That would start to be a very useful analysis.

At this moment it’s hard to figure out the usefulness of this. I

have hopes that the upgrade of the permit compliance system will

fix this, but I have no real knowledge that’s going to make me feel

confident. I think that something needs to happen sooner rather

than later, because December 2005 is a long time away.

Mr. TIERNEY. Mr. Thompson, with your plans—you have your

own data base—would you find it more or less burdensome if the

PCS system were updated and made to provide you information

you found useful?

Would that be something you could shift over to; or would you

resist doing it because somehow that would be in your estimation

too burdensome?

Mr. THOMPSON. I think I would prefer, given the investment that

they made in their individual data systems and the comfort that

they have with them, to develop a system where that data can be

aggregated in the national system, rather than transferring to a

new national system——

Mr. TIERNEY. That technology exists somewhere, and can be

done?

Mr. THOMPSON. It could be done; it can.

There is a lot of work, again, on data definitions, different things

that are in effect the same action, and the ability to aggregate that

data. Those systems do exist.

Mr. TIERNEY. Ms. DiBona, let me ask you, in Massachusetts, how

easily can a resident find information about the water where they

live, the facilities near where they live, what damage may or may

156

not be occurring? Is it an accessible system? Is it something they

can do?

Ms. DIBONA. I think right now what residents can do is go to the

EPA’s Web site, where they have a watershed program, where you

can click on where you live and they give the data.

The trouble is, we’re not quite sure where that data is coming

from, and what they’re basing that information on.

Some of it’s from the States, and maybe sometimes it’s from watershed associations; but, as Dr. Metzenbaum pointed out, there is

a lot of data out there that would be very useful if we could figure

out how to put it all in one place.

If I could followup on the other question that you asked about

the States’ ability to use the data and report on it, Massachusetts

has done a very good job of getting grant funding from EPA to

startup their own electronic filing program for both permits and

then monitoring reports. That all gets fed in.

They’re using this as a way to make up for the employees that

they’ve lost. The system can kick out the data that doesn’t match

up with the permit when the monitoring report comes in.

So, we’re arguing with them about how much of that is going to

become public; because that’s the kind of information that is helpful to people, what’s happening at the facility down the way from

where they want their kids to swim.

Unfortunately, even capital funds are becoming scarce, to pay for

that. They need $600,000 in capital funds to continue the program

and keep the data base moving, and they’re having troubles getting

that right now.

Mr. OSE. Mr. Thompson, is your system Web-based?

Mr. THOMPSON. It is.

Now, the system that I’m using most successfully is the one for

air. We’re in the process of developing one for water. We have individual data bases that we use to manage our water program; not

the kind of collective system, aggregated system like we do.

In fact, the system that I discussed about sharing data, the systems would have to be Web-based in order to be useful.

Mr. OSE. Ms. Savage, you had something you wanted to go back

to.

Ms. SAVAGE. Yes, a couple, three or four points.

Mr. THOMPSON. You’re going to say what I meant to say.

Ms. SAVAGE. Yes, I’ve been doing it for a long time.

When Steve was talking about the difference between the divorce

which took place about 10 years ago at the EPA, separating out

from the programs and creating OECA, there was a reason that the

agency did that; but, it was primarily for the optics of looking as

if enforcement was a higher priority.

What in fact happens, however, is that you have two AA ships,

two Assistant Administrators instead of one program AA. You have

two similar systems, two organizational structures, two sets of

staff, two sets of operating activities. You have two strategic plans.

Let me give you an example of why this is a problem for the

States.

We had been negotiating with EPA and working with them on

a strategic plan when Chuck was the Assistant Administrator.

157

That means we were working with the Office of Water to develop

the strategic plan for the water program.

OECA isn’t part of that discussion. So, 2 or 3 years later we can

be negotiating and working through a strategic plan; OECA comes

in, they weren’t part of the water process, but working on their

own. They didn’t give us the data points that they wanted incorporated into the water program. They have a separate and totally

different set of criteria.

So that is very difficult for the States to manage, because it’s a

duplication of effort. You get at the regional effort, so now you’ve

got Bob Varney in Region I; now he’s got two AA-ships to deal with

at the regional level.

By the time you get down to the State, you have two incredibly

complex sets of bureaucracies working at odds; let alone the turf,

let alone the budgets, let alone reporting to the Administrator, and

so on.

So it’s a very complicated system; where if you have one organizational structure setting the goals and enforcing the law you have

a combined effort, you know where the problems are, you solve the

problems and you deal with them. That was the point I wanted to

make.

I wanted to go back to a coordinated water program.

Mr. OSE. Before you leave that point, you’re speaking to the coordination efforts in implementing improvements to the environment?

Ms. SAVAGE. Correct, and implementing the Clean Water Act.

I think Eric Schaeffer mentioned the fact that we were having

difficulties with stormwater, and Chuck Fox mentioned about nutrient standards. He’s absolutely right; nutrient standards need to

be put into our water-quality standards and into our permits.

I would just mention that the CAFO animal-feeding operations

were only promulgated in the end of December; so it takes a little

while for that to happen. I think he’s absolutely right; it needed to

happen. Animal-feeding operations are a huge issue.

Two last points. One is that California also has a minimum penalty of $3,000 per violation, and they are finding that to be very

useful. The program has been so desiccated that they can’t do

anything——

Mr. OSE. Per violation, or per day?

Ms. SAVAGE. Per violation. It might be $3,000 per day. Actually,

I’ll have to check that.

Mr. OSE. There have been a lot of bills signed in the last 10 days.

Ms. SAVAGE. That’s true.

Then I wanted to come back to something that Mr. Varney said.

My organization sponsors World Water Monitoring Day, which is

Friday this week. We are inviting partents, teachers, and kids out

to go and monitor their waterways for pH, temperature, and oxygen demand.

Also, I endorse everything he said about citizen monitoring. The

reason we created World Water Monitoring Day is that we don’t

have enough bureaucrats in the world to do all the monitoring we

need.

If we can get the people out there in the waters, walking the

streams, doing it on a regular basis and recording it into a data

158

base—sadly, it’s my data base and not an EPA data base—at least

we’re getting a data base. We’ve got to be ahead of the game.

But, I did want to take issue with the idea that the Massachusetts program or another other predecessor program is not a delegation. The program enforcement of NPDES is calculated at the

Federal level, not at the State level.

I can understand your frustration. On the other hand, oftentimes

the State gets lumped together.

Ms. DIBONA. We do share a delegation. It’s not totally with EPA,

and it’s not totally with the State. They collaborate on all——

Ms. SAVAGE. The responsibility.

Mr. TIERNEY. So, they go like this (gesturing) when it becomes

appropriate.

Ms. SAVAGE. Yes, exactly.

But, I believe enforcement and permitting authority is at the

Federal level. That doesn’t mean that the State doesn’t have responsibility and they don’t do some of the work; but they have the

ultimate responsibility.

Mr. OSE. What I hear all seven of you talking about is the quality of information.

Ms. SAVAGE. Yes.

Mr. OSE. Item No. 1 is the quality of information that the decision is being made on.

That gets to, as Mr. Thompson said, the collection and the transmission of that data to the people who are responsible for enforcement, for compliance and the like.

And yet, along the Charles River I think the two of you were involved in a system that used volunteers—I don’t know if it’s Webbased or otherwise, I’m presuming it is—they used volunteers to

collect information and monitor the status of the river, the outcome

if you will; not the output, but the outcome of the collective efforts.

This seems like common sense to me. What am I missing?

Mr. FOX. Mr. Chairman, you’re right on target.

As the person who actually helped create the assistantadministratorship for information in the former administration of

the EPA, I think this is a relatively important point.

We have the technology today that allows anyone in their homes

to find out anything, and frankly allows Steve’s program in Oklahoma to seamlessly interact with any Federal program.

The key issue here is the data standards. Do you measure mercury in milligrams per liter, or do you measure mercury in some

other unit? Do you measure your enforcement in one or another

unit?

Frankly, I think it comes down to a leadership question. I’m not

saying it’s EPA’s fault, or the States’; someone has to make the decision, what is the data?

Once that decision gets made, you watch; technology takes over,

and this information becomes available to the public like that. Not

quite that simple, but almost.

Mr. OSE. In addition, you attract public sector and private sectors partners who contribute.

Dr. METZENBAUM. I think data quality, data availability, analysis

of the data, dissemination of it is critical.

159

I just want to address two issues. Mr. Thompson talked about

EPA being able to take data from the States, and I think that’s a

fantastic model; but it does mean the EPA has to assume a much

stronger role in enforcing the quality of the data than they have

been assuming.

The question was raised earlier about discharge monitoring reports, and whether or not the accuracy of those is actually checked.

If you’re going to move to this kind of a system, you actually have

to take care of the management of the information.

Then, getting it out to the public starts to engage the public in

doing the analysis as well.

I just want to point out that EPA’s ECHO system, environmental

compliance history online, is a very powerful system. It begins to

make it easier for the public to analyze the information; but it only

takes a baby step.

You talked about a lot of the analysis EPA has done. Why can’t

we all push a button and do some of our own kinds of analyses the

way EPA has done and beyond, that actually start to look at compliance history, discharge and compliance trens in different watersheds and different places, for different kinds of facilities?

I think you’re completely right; information is an unbelievably

powerful tool. We need to manage it and play a leadership role. We

need the States and EPA to do that.

Mr. TIERNEY. Mr. Schaeffer, you were shaking your head?

Mr. SCHAEFFER. I don’t know where to start. Just on a factual

issue, the CAFO regulations have been around since the early

1970’s.

Mr. TIERNEY. The CAFO regulations?

Mr. SCHAEFFER. I’m sorry; the large-animal feeding operations.

Mr. OSE. You come from an agricultural State; you know this

issue.

Mr. SCHAEFFER. That are the source of so many water-quality

problems.

The basic regs have been around for a long, long time; 30 years

at this point. I just didn’t want to let that pass.

I think a second point on the data issue which is a real sticking

point is that it’s not just the quality issue which is very important;

it is the public-access issue. I do think we have deeply held views

amongst some State regulators that in effect they own the data,

and it’s for them to shape it and let it out to the public as they

see fit.

I have to say, I’m extremely uncomfortable with that. I think the

data belongs to the public. In many cases it’s required by law to

be made public, and we ought to make it easier to get.

I think this idea that the public, if they get TRI information on

toxic-release inventory, or if they get information on noncompliance

are going to somehow panic and run like lemmings into the sea,

is just silly.

We had a Washington Post story; so what? We’re all here still

alive. The flag is still flying over Oklahoma. We can survive.

We need to get this stuff out and on the street where we can debate it, and not have it be something that’s controlled by, frankly,

bureaucrats; whether they’re at the Federal level or the State level.

160

Mr. TIERNEY. Do we need to change the law to make that happen; or just——

Mr. SCHAEFFER. I think we might want to look at the statute

itself, because I do think this is an intractable political issue; which

may mean it will be tough for you as well, but it’s going to be very

tough to solve at the agency level.

Mr. TIERNEY. Mr. Segal?

Mr. SEGAL. Just a quick response.

I’ve heard about the need for access to information for ‘‘We the

People.’’ I’ve heard about the need for access to information of a

State-level bureaucracy speaking to a Federal-level bureaucracy.

But remember, when we talk about enforcement, we’re also talking about the relationship between the government and the regulated community.

I think we could use a little bit of improvement in the quality

of the information that goes to the regulated community.

By that I mean that if you’re going to have a successful enforcement program, those mandates, those priorities, have to be made

clear, interpretations of law have to be made clear, to the regulated

community.

When they are not, and when the enforcement program becomes

a moving target, a lot of mischief is done; and I frankly would say

that a lot more is spent on litigation than is spent on environmental improvement, and that’s too bad.

Mr. TIERNEY. I spent a good deal of my life in litigation; and I’ll

tell you, if they want to litigate them to avoid them, they’re going

to do it.

We have to make it clear, and nobody disputes this, that what

they do with that is going to be on their conscience.

Mr. Schaeffer, let me ask you a question that I asked Mr.

Suarez.

What do you make of the assertion that facilities subject to formal action have higher rates of recidivism than the ones that don’t

have formal action taken? Is that because we’re focusing on problem facilities and they’re more likely to keep on being bad, or is it

because our fines and what we’re doing aren’t enough of a concern?

Mr. SCHAEFFER. My sense is maybe some of both, but you are

dealing with some tough problem facilities. The truth is I really

don’t know, and that would be a good question to pursue with EPA.

Mr. TIERNEY. Anybody, right to left, I’d like to all give you an

opportunity to give make some closing statements. Do you want to

quit while you’re ahead?

Mr. SCHAEFFER. I appreciate the time.

Mr. OSE. Can we get Mr. Thompson first? He has a plane to

catch.

Mr. THOMPSON. I will be brief.

Mr. TIERNEY. I purposely started from the right.

Mr. THOMPSON. I think there are two things.

I think there is a need for improved data. I think there is a need

for Congress to look at each component of this and really analyze

who does what best.

There are things that States, because of their proximity to the

issues, can do better than the Federal Government; and there are

161

things that the Federal Government can do that the States cannot.

I’m not sure we’re optimizing those resources in the best way yet.

I will also say that, as the information gets better, I believe that

the solutions will be more and more driven to the local level; and

to look at the responsibilities of States and of the EPA in that context will become more and more important.

Mr. TIERNEY. Thank you.

Ms. Savage.

Ms. SAVAGE. In addition to more money and flexibility—I had to

get that in, guys; they were teasing me early on, don’t you get tired

of saying States need more money and flexibility, so I had to throw

that in—one of the things that I think is absolutely essential is better monitoring.

For my part, we’re doing World Water Monitoring Day, to get

citizens in the water. People every year going back to their streams

and waterways take responsibility, educate themselves, and get the

kids to learn about water quality.

Last year we had 75,000 and we’re hoping for more than a million this year.

One of the things that the chairman asked was why isn’t that

such a great idea, and why can’t we manage programs that way?

The reason is, it’s great to have kids in streams, and the people,

but that’s not quality assurance and it’s not quality control.

If our attorney friends need to go to litigation for enforcement action, they’re not going to be able to use citizen science data, for the

most part. So, while it’s an education tool, we can make decisions,

we can raise it to the government level, we can follow it up with

studies.

Citizen data often cannot be used for the enforcement of legal activities. We need more enforcement; we need to put more attention

in that area.

Mr. TIERNEY. Thank you.

Doctor.

Dr. METZENBAUM. I want to thank this committee for opening

questions about how you can encourage increased use of information, skillful use of information, how you can leverage that information, use that as part of a tool in the regulatory system to improve

environmental quality.

And I want to ask that you continue this line of inquiry. I think

it’s a very positive one, and that the solutions are not simple.

A lot of it is organizational inertia, but a lot of it is just very

tough work that needs to be sorted out.

I hope you’ll continue this line of inquiry, so that we can make

real progress in a bipartisan way and encourage skillful and aggressive use of information in this area.

Mr. TIERNEY. Thank you.

Mr. Segal.

Mr. SEGAL. Congratulations to everybody; I think it was a very

interesting hearing. A lot of points were made.

I think that I would be satisfied on a going-forward basis for environmental enforcement in this country if environmental enforcement administrators simply took a Hippocratic oath, which is simply that they would do no harm.

162

You can’t swear that Hippocratic oath at this point as between

the relationship between the Feds and the States; you can’t swear

it as to the embracing of innovative approaches, both environmental management of facilities and environmental management

within agencies.

If we could just do what makes sense and not focus on turning

everything into litigation, I think we would all be better served;

and, that’s a declaration against interest.

Mr. TIERNEY. I would say.

Ms. DiBona.

Ms. DIBONA. I’ll try to be a little shorter than Mr. Thompson,

but——

Mr. SEGAL. You are shorter than Mr. Thompson.

Ms. DIBONA. When we talk about having the data in good shape,

it’s because we want to make sure that people are doing the right

thing.

In the Charles, there was regular monthly monitoring at 37 sites

in a limited area of the river ongoing for many, many years.

Once a year isn’t enough; once every 5 years that our agency

goes out and monitors isn’t enough; and even the 3 months that the

students can go out and monitor the creek isn’t enough.

You need to have ongoing monitoring, and volunteers aren’t free.

Just because we say, oh, volunteers will take the data doesn’t mean

we don’t have to go back and do the quality assurance and quality

control to make sure that the procedures are proper and to have

the resources to coordinate all that, that they have the equipment

that they need, the laboratory monitoring.

Mr. TIERNEY. Thank you very much.

You gentlemen still pass?

Mr. FOX. Yes.

Mr. TIERNEY. I thank all the witnesses for your testimony and

time. Mr. Chairman, I thank you for coming.

[Whereupon, at 1:50 p.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing record follows:]

163

164

165

166

167

168

169

170

171

172

173

174

175

176

177

178

179

180

181

182

183

184

185

186

187

188

189

190

191

192

193

194

195

196

197

198

199

200

201

Æ