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21–265 PDF 2016

S. HRG. 114–341 

EXAMINING THE PRESIDENT’S FISCAL YEAR 2017 

BUDGET REQUEST FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

APRIL 19, 2016 

Printed for the use of the Committee on Environment and Public Works 

( 

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

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

(III) 

C O N T E N T S 

Page 

APRIL 19, 2016 

OPENING STATEMENTS 

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

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 3 

WITNESSES 

McCarthy, Gina, Administrator, Environmental Protection Agency; Accompanied by: David Bloom, Chief Financial Officer, Environmental Protection 

Agency ................................................................................................................... 5 

Prepared statement .......................................................................................... 6 

Responses to additional questions from: 

Senator Gillibrand ............................................................................................ 11 

Senator Inhofe .................................................................................................. 13 

Senator Rounds ................................................................................................. 15 

Senator Wicker ................................................................................................. 18 

(1) 

EXAMINING THE PRESIDENT’S FISCAL YEAR 

2017 BUDGET REQUEST FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY 

TUESDAY, APRIL 19, 2016 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The committee met, pursuant to notice, at 10:02 a.m. in room 

406, Dirksen Senate Office Building, Hon. James Inhofe (chairman 

of the committee) presiding. 

Present: Senators Inhofe, Boxer, Vitter, Barrasso, Capito, 

Boozman, Wicker, Fischer, Rounds, Sullivan, Carper, Cardin, 

Whitehouse, Gillibrand, Booker and Markey. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. The hearing will come to order. 

First of all, welcome, Administrator McCarthy. We appreciate 

you being here. As I said to you before the meeting, this may be 

the last positive note, but I want to start off on a positive note, and 

that is I want you to commend your staff that has been working 

on TSCA with us. It has been very, very difficult, and it looks like 

now we are just a matter of hopefully hours away of having agreement with the House. But without your staff concentrating on that, 

it really couldn’t have happened, so I hope you will share that with 

them. I am sure maybe they are watching now. Administrator, the President has requested almost $8.3 billion to fund EPA next fiscal year, an increase of more than $87 million 

from last year’s enacted. I would like to address what I believe are 

misplaced priorities and how the President is sacrificing EPA’s core 

programs to advance his climate agenda. 

The President is seeking—and I had two different sources here. 

I think the figure is accurate. The total amount he is seeking would 

be $235 million to implement the Clean Power Plan, even though 

EPA has testified before this Committee that they have done no 

modeling whether the rule would have any impact on global temperature change and the Supreme Court has stayed it from going 

into effect because of ongoing litigation which could well last until 

2018. 

The President is intent on picking winners and losers in the energy economy. The budget request makes clear the President’s intention to now squeeze the oil and gas sector through costly new 

regulations and increased inspections and enforcement, much like 

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it did with coal mines and power plants at the beginning of the Administration. Another example is how the budget requests $300 

million in mandatory funding, or more than $1.6 billion over 10 

years, to pay for charging stations for electric vehicles and other 

subsidies to remake our transportation infrastructure. Meanwhile, the President again proposes cutting $40 million 

from the very successful diesel emission retrofit program that Senator Carper and I support. The budget would also eliminate State 

grants to address radon, even though radon is the second leading 

cause of lung cancer. 

In the hearing earlier this month, we heard testimony about the 

challenges faced by States and local governments in meeting EPA 

clean water mandates. But the President’s budget would cut $414 

million from the Clean Water State Revolving Fund which helps 

these very same States and local communities pay for improvements to sewer and wastewater treatment systems. 

Regardless of what one thinks about the President’s policy goals, 

here are a few objective results: The Supreme Court has stayed the 

Clean Power Plan, the centerpiece of the President’s climate legacy, 

over questions that EPA exceeded the limits of its authority under 

the Clean air Act. 

A headline in the New York Times and report by the GAO about 

EPA’s violating the law by using taxpayer money for covert propaganda and illegal lobbying to support the Waters of the U.S. rule. 

Injunctions were issued to halt the WOTUS rule itself by the Sixth 

Circuit and a Federal district court in North Dakota. Last year’s 

Supreme Court decision remanding a rule to limit mercury emissions from power plants because EPA ignored costs. 

As we have seen from the Gold King Mine blowout and the contaminated drinking water in Flint, Michigan, EPA has at times 

been distracted from fulfilling its core missions due to the Obama 

administration’s single-minded focus on remaking EPA into an 

agency that regulates climate change and the energy sector. 

The members of this Committee and I look forward to asking you 

about the EPA’s priorities and regulatory agenda. 

Senator BOXER. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Administrator McCarthy, thank you for appearing this morning. The President 

has requested almost $8.3 billion to fund EPA next fiscal year—an increase of more 

that $87 million from last year’s enacted. 

This budget is just the lates example of the Administration’s misplaced priorities 

and how EPA’s core programs are being sacraficed to advance President Obama’s 

climate legacy. 

The President is seeking more than $50 million just to implement the Clean 

Power Plant—even though the rule will have negligible impact on global temperature chand and the Supreme Court has stayed it from going into effeect because of 

ongoing litigation. 

The Obama EPA is intent on picking winners and losers in the energy economy. 

The budget request makes clear the President’s intention to now squeeze the oil and 

gas sector through costly new reulations and increased inspections and enforcement, 

much like it did with coal mines amd power plants at the beginning of the Administration. 

Another example of this is how the budget request seeks $300 million in mandatory funding (or more than $1.6 billion over 10 years) to pay for charging stations 

for electric vehicles and other subsidies to remake our transportation infrastructure. 

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Meanwhile, the president proposes cutting $40 million from the very successful 

diesel emission retrofit program that Senator Carper and I support. The budget 

would also eliminate state grants to address radon, even though radon is the second 

leading cause of lung cancer, 

In a heaing earlier this month, we heard testimony about the challenges faced by 

states and local governments in meeting EPA clean water mandates. But the President’s budget would cut $414 million from the Clean Water State Revolving Fund 

which helps these very same states and local communities pay for improvements to 

sewer and waste water treatment systems. 

A key part of last year’s budget request was to fund dozens of new atorneys. But 

what does EPA have to show for this hiring spree? 

• The Supreme Court has stayed the Clean Power Plan—the centerpiece of the 

President’s climate legacy—over questions the EPA exceeded the limits of its authority under the Clean Air Act. 

• A headline in the New York Times and report by GAO about how EPA violated 

the law by using tax-payer money for covert propaganda and illegal lobbying to support the Waters of the U.S. rule. 

• Injunctions were issued to halt the WTUS rule itself by the Sixth Circuit and 

a federal district court in North Dakota. 

• And let’s not forget last year’s Supreme Court decision remanding a rule to limit 

mercury emissions from power plants because EPA ignored costs. 

As we have seen from the Gold King Mine blowout and the contaminated drinking 

water in Flint, EPA has at times been distracted from fulfilling its core missions 

due to the Obama Administration’s dingle-minded focus on remaking EPA into an 

agency that regulates climate change and the energy sector. 

The job of EPA Administrator comes with a high level of scrutiny from Congress 

and the American people. We may not see eye to eye on everything. But I appreciate 

the support you and your staff have provided fot some of the Committee’s work especially to modernize the Toxic Substance Control Act. As you know the Senate 

passed by voice vote last December a TSCA reform bill named after our colleague 

Frank Lautenberg, and I thank you and your staff for your continued help in moving that bill forward. 

The members of this Committee ans I are looking forward to quetioning EPA’s 

prioities and regulatory agenda. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. Thanks, Mr. Chairman. 

Welcome, and I will defend you as much as possible from what 

is coming at you. 

EPA’s work implementing our Nation’s landmark laws to address 

clean air, children’s health, safe drinking water, toxics, and water 

quality in America’s lakes and rivers is essential for public health 

and safety. Despite my colleague’s chagrin, the work of the EPA to 

keep our families healthy is widely supported in poll after poll after 

poll where the opinion of this Senate and this House is probably 

around the 17, 18 percent range at best. So let’s be clear what we 

are talking about. 

Vast majority support your work and, sadly, vast majority think 

that we are not doing our jobs or not doing it well. That is sad. 

Now, on the budget, EPA’s budget of $8.27 billion is down from 

7 years ago when the budget was $10.3 billion. It is a sad situation, 

and I am sorry that the President didn’t make this a bigger priority. I guess it is $127 million increase above 2016, but there are 

cuts in this budget where I agree with my colleague that are 

wrong. 

So the problem is not enough money in the budget. That is what 

I think. And you are asked to do more with less, and you get criticized when you don’t have a Johnny-on-the-spot answer when they 

have cut you like this over the years. 

4 

It is important that EPA continue to focus on combatting dangerous climate change, which is happening all around us. For example, 2015 was the hottest year on record; 15 of the 16 warmest 

years on record have occurred in the 21st century. Sea levels are 

rising many times faster than they have only in the last 2,800 

years. That is all. We see record rainfalls, record droughts, record 

fires, and scientists are saying too much carbon pollution in the air 

caused by human activity. 

Young people, when asked about this, think that those people 

who don’t recognize this as a threat are out of touch, and that is 

a nice way to put it. They say worse than that. 

EPA also has a critical responsibility to ensure drinking water is 

safe, and the American people have a right to expect that they will 

not be poisoned when they turn on their faucets. Small point, 

right? The lead poisoning of children in Flint is a tragedy, and we 

must commit to never let it happen again. The State of Michigan 

failed the people of Flint, is primarily responsible, in my view, because they changed the source of the water to save a few bucks; 

it ignored multiple warnings that it was poisoning its own citizens, 

and EPA has a responsibility to speak out when it sees action 

being taken that could harm public health. EPA could have, and 

should have, done more, and I hope the actions taken by EPA since 

the Flint crisis will help prevent similar tragedies from taking 

place in the future. 

This problem is far more widespread than is acknowledge. I 

know of cases in Mississippi, California, where they have turned off 

the drinking water for the children. Obviously, the older the pipes, 

the worse the problem. But the offense in Flint demonstrates we 

have a long way to go to provide reliable, safe drinking water to 

all Americans and in cleaning up the waterways that serve as 

sources of our drinking water. 

The American Society of Civil Engineers gives our Country’s 

drinking water and wastewater infrastructure a big fat D. It is embarrassing that this, the greatest Country in the world—a lot of 

people say let’s make America great again. America is great. But 

how do we stand here with an infrastructure rated D, or sit here, 

as the case may be? 

The American Water Works Association estimates that 7 percent 

of homes, 15 to 22 million Americans, have lead service lines. This 

is unacceptable. We have to continue to invest in improving the 

Nation’s failing water infrastructure. 

We are very happy about WIFIA. This is a program Senator 

Inhofe and I and all of the Committee worked on together to leverage private financing for critical drinking water. But WIFIA 

shouldn’t be a replacement for the State Revolving Funds. I agree 

with my colleague on that. Our Nation’s infrastructure needs far 

outstrip the funding available, and the proposed $257 million cut 

to the State Revolving Funds will make this funding gap worse. 

Administrator McCarthy, you have a tough job, but the American 

people do support your mission, as I said. In poll after poll they 

favor the efforts to address climate change, cleanup the air, protect 

our water, and provide safe drinking water to 117 million Americans. You are doing essential work. 

5 

For some reason this issue has become a partisan divide. It is my 

biggest regret, as I get ready to leave the Senate that I love so 

much, to see this divide. It is sad. We will see it on display today. 

It will speak for itself. 

Thank you. 

Senator INHOFE. Administrator McCarthy. 

STATEMENT OF GINA MCCARTHY, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY; ACCOMPANIED BY: DAVID 

BLOOM, CHIEF FINANCIAL OFFICER, ENVIRONMENTAL PROTECTION AGENCY 

Ms. MCCARTHY. Chairman Inhofe, Ranking Member Boxer, I 

really appreciate the opportunity to appear before you today to discuss EPA’s proposed Fiscal Year 2017 budget, and I am joined 

today by the Agency’s Deputy Chief Financial officer, David Bloom. EPA’s budget request of $8.267 billion for the 2017 Fiscal Year 

lays out a strategy to ensure steady progress in addressing environmental issues that affect public health. For 45 years our investments to protect public health and the environment have consistently paid off many times over. We have cut air pollution by 70 

percent and cleaned up half of the Nation’s polluted waterways all 

the while our national economy has tripled. 

Effective environmental protection is a joint effort of the EPA, 

States, and our Tribal partners. That is why the largest portion of 

our budget, $3.28 billion, or almost 40 percent, is provided directly 

to our State and Tribal partners. In Fiscal Year 2017, we are requesting an increase of $77 million in funding for State and Tribal 

Assistance categorical grants in support of critical State work and 

air and water programs, as well as continued support for our Tribal 

partners. 

This budget request also reinforced EPA’s focus on community 

support by providing targeted funding in support for regional coordinators to help communities find and determine the best programs 

to address local environmental priorities. 

The budget includes $90 million in Brownfield Project grants to 

local communities. That is an increase of $10 million, which will 

help return contaminated sites to productive use. 

This budget prioritizes actions to reduce the impacts of climate 

change and it supports the President’s Climate Action Plan. It includes $235 million for efforts to cut carbon pollution and other 

greenhouse gases through common sense standards, guidelines, as 

well as voluntary programs. 

The EPA’s Clean Power Plan continues to be a top priority for 

the EPA and for our Nation’s inevitable transition to a clean energy economy. Though the Supreme Court has temporarily stayed 

the CPP rule, States are not precluded from voluntarily choosing 

to continue implementation planning. EPA will continue to assist 

States that voluntarily decide to do so. 

As part of the President’s 21st Century Clean Transportation 

Plan, the budget also proposes to establish a new mandatory fund 

at the EPA, providing $1.65 billion over the course of 10 years that 

will be used to retrofit, replace or repower diesel equipment, and 

up to $300 million in Fiscal Year 2017 to renew and increase funding for the Diesel Emissions Reduction Grant Program. The budget 

6 

also includes a $4.2 million increase to enhance vehicle engine and 

fuel compliance programs, including critical testing capabilities. 

We also have to confront the systemic challenge that threatens 

our Country’s drinking water and the infrastructure that delivers 

it. 

This budget includes a $2 million request for State Revolving Funds and $42 million in additional funds to provide technical assistance to small communities, loan financing to promote publicprivate collaboration, and training to increase the capacity of communities and States to plan and finance drinking water and wastewater infrastructure improvements. 

The EPA requests $20 million to fund the Water Infrastructure 

Finance and Innovation Act Program, or WIFIA, which will provide 

direct financing for the construction of water and wastewater infrastructure by making loans for large innovative projects of regional 

or national significance. 

This budget also provides $22 million in funding to expand the 

technical, managerial, and financial capabilities of drinking water 

systems. Included is $7.1 million for the Water Infrastructure and 

resiliency Finance Center, as well as the Center for Environmental 

Finance that will enable communities across the Country to focus 

on financial planning of upcoming public infrastructure investments, to expand work with States to identify financing opportunities for rural communities, and to enhance partnerships and collaboration with the U.S. Department of Agriculture. EPA is also seeking a $20 million increase to the Superfund Remedial Program, which will accelerate the pace of cleanups, supporting States, local communities, and Tribes in their effort to assess and cleanup sites and return them to productive use. 

EPA’s Fiscal Year 2017 budget request will let us continue to 

make a real and visible difference to communities and public 

health every day, and provide us with foundation to revitalize the 

economy and improve infrastructure across the Country. 

Thank you for the opportunity to testify today, and I look forward to answering your questions. 

[The prepared statement of Ms. McCarthy follows:] 

STATEMENT OF GINA MCCARTHY, ADMINISTRATOR, U.S. ENVIRONMENTAL

PROTECTION AGENCY

Chairman Inhofe, Ranking Member Boxer, and members of the Committee, thank 

you for the opportunity to appear before you to discuss the Environmental Protection Agency’s proposed fiscal year budget. I’m joined by the agency’s Deputy Chief 

Financial Officer, David Bloom. 

The EPA is, at its very core, a public health agency. The simple fact is you cannot 

have healthy people without clean air, clean water, healthy land, and a stable climate. We have worked hard to deliver these and made significant progress over the 

years for the American people. This budget request of $8.267 billion [in discretionary funding] for the 2017 fiscal year, starting October 1, 2016, lays out a strategy to ensure that steady progress is made in addressing environmental problems. 

This strategy includes actions to protect public health and it ensures that the agency and its partners in environmental protection, states and tribes, are positioned to 

meet the challenges of the future. The request is $127 million above the agency’s 

enacted level for fiscal year 6. For 45 years, the EPA’s investments to protect public 

health and the environment have helped make the nation’s air, land, and waters 

cleaner. 

However, in many ways we are now at a turning point. As science advances, it 

improves our ability to measure pollution and provide better and more complete access to environmental information, but we know that the technologies and tools that 

7 

we have relied on to date cannot be expected to meet all of today’s challenges, like 

climate change and aging infrastructure. This budget supports efforts to leverage investments in technology, and be even more innovative and responsive, while reflecting an understanding that a strong economy depends on a healthy environment. It 

funds essential work to support our communities, address climate change, protect 

our waters, protect our land, ensure chemical safety, encourage pollution prevention, 

advance research and development and promote innovation and modernization to 

streamline processes. 

Supporting our state, local, and tribal partners is a central component of our work 

to protect public health and the environment. This budget builds on a history of addressing environmental and public health challenges as a shared responsibility. We 

are doing this while supporting a strong workforce at the EPA and maintaining a 

forward and adaptive organization with the tools necessary to ensure effective use 

of the public funds provided to us. 

MAKING A VISIBLE DIFFERENCE IN COMMUNITIES ACROSS THE

COUNTRY

We are committed to continuing our work with our partners to make a visible difference in communities across the country—especially in areas overburdened by pollution—including distressed urban and rural communities. 

The EPA has made community support a top priority and this budget reinforces 

that focus. It includes a multi-faceted effort that builds and strengthens capacity 

using innovative tools, comprehensive training, technical assistance, and increased 

access to the most up-to-date scientific data. The EPA is committed to assisting communities in addressing their most pressing environmental concerns and will continue to innovate by taking full advantage of advances in technology to detect air 

and water pollution. 

In fiscal year 7, the EPA will provide targeted funding and support for regional 

coordinators to help communities find and determine the best programs to address 

local environmental priorities. The fiscal year budget also provides $17 million for 

the Alaska Native Villages infrastructure assistance program, and an additional 

$2.9 million within the Integrated Environmental Strategies program will support 

these communities in conducting resiliency planning exercises and capacity-building. 

This will buildupon previous collaborative efforts with FEMA, NOAA and HUD. 

Across the budget, activities help communities adopt green infrastructure, provide 

technical assistance for building resilience and adapting to climate change, and help 

communities to reduce environmental impacts through advanced monitoring technology and decisionmaking tools. The EPA’s budget also includes $90 million in 

Brownfields Project grants to local communities, an increase of $10 million. These 

funds will help to return contaminated sites to productive reuse by increasing investments in technical assistance and community grants for assessment and cleanup of areas where we work, live and play. 

The EPA will continue work to limit public exposure to uncontrolled releases of 

hazardous substances and make previously contaminated properties available for 

reuse by communities through a request of approximately $521 million in the Superfund Remedial program and another $185 million in the Superfund Emergency Response and Removal program. An increase of $24 million in Superfund cleanup programs will enable the remedial program to maximize the preparation of ‘‘shovelready’’ projects, and provide funding to reduce the backlog of new construction 

projects that address exposure to contaminated soil and groundwater. It also supports critical resources with the Emergency Response and Removal program giving 

us the ability to quickly respond to simultaneous emergencies. 

ADDRESSING CLIMATE CHANGE AND IMPROVING AIR QUALITY

The fiscal year budget request for the agency’s work to address climate change and to improve air quality is $1.132 billion. These resources will help protect those 

most vulnerable to climate impacts and the harmful health effects of air pollution 

through commonsense standards, guidelines, and partnership programs. 

Climate change remains a threat to public health, our economy, and national security and the U.S. recognizes our role and our responsibility to lead in cutting carbon pollution that is fueling climate change. To do so, our work will position the 

business community, its entrepreneurs, and its innovators to lead the world in a 

global effort while at the same time, expanding the economy. States and businesses 

across the country are working to build renewable energy infrastructure, increase 

energy efficiency, and cut carbon pollution—creating sustainable, middle class jobs 

and displaying the kind of innovation that has enabled this country to overcome so 

8 

many challenges. Over the last decade, the U.S. has cut its total carbon pollution 

more than any other nation on Earth. And last November, we set a goal of reducing 

economy-wide greenhouse gas emissions by 26—28 percent by 2025. Even so, we are 

still ranked just behind China as the second largest emitter of CO2 , so we need 

to continue to lead by example as we work to address this global challenge. 

The fiscal year budget prioritizes actions to reduce the impacts of climate change, 

one of the most significant challenges for this and future generations, and supports 

the President’s Climate Action Plan. The budget includes $235 million for efforts to 

cut carbon pollution and other greenhouse gases through common sense standards, 

guidelines, and voluntary programs. The EPA’s Clean Power Plan, which establishes 

carbon pollution reduction standards for existing power plants, is a top priority for 

the EPA and will help spur innovation and economic growth while creating a clean 

energy economy. Although the Supreme Court has stayed the CPP rule, the stay 

does not preclude all continued work on the CPP and does not limit states that want 

to proceed with planning efforts or other actions to reduce greenhouse gas emissions 

from power plants. During the stay, EPA will continue to assist states that voluntarily decide to move forward, helping to pave the way for plans that will involve 

innovative approaches and flexibility for achieving solutions. 

The President’s Climate Action Plan also calls for greenhouse gas reductions from 

the transportation sector by increasing fuel economy standards. These standards 

will represent significant savings at the pump, reduce carbon pollution, and reduce 

fuel costs for businesses, which is anticipated to lower prices for consumers. The 

budget includes a $4.2 million increase to enhance vehicle, engine and fuel compliance programs, including critical testing capabilities, to ensure compliance with 

emission standards. An additional $1 million is included in the President’s request 

to share the agency’s mobile source expertise and technical assistance internationally with a focus on heavy duty trucks. 

As part of the President’s 21st Century Clean Transportation Plan, the President’s Budget proposes to establish a new mandatory fund at the EPA. The existing 

fleet of cars, trucks, and buses is aging, contributing to climate change and putting 

our children’s health at risk. To protect the health of the most vulnerable populations and reduce childhood exposure to harmful exhaust, the EPA will provide a 

total of $1.65 billion through the Fund over the course of 10 years to retrofit, replace, or repower diesel equipment. The proposed funding, which is separate from 

the agency’s discretionary funding request, will provide up to $300 million in fiscal 

year to renew and increase funding for the Diesel Emissions Reduction Grant Program (DERA), which is set to expire in 2016. This budget also provides $10 million 

in discretionary funding to support our existing DERA program to provide national 

grants and rebates to reduce diesel emissions in priority areas. 

PROTECTING THE NATION’S WATERS

Protecting the nation’s waters remains a top priority for the EPA. In fiscal year 

7, the agency will continue to buildupon decades of work to ensure our waterways 

are clean and our drinking water is safe. There are far reaching effects when rivers, 

lakes, and oceans become polluted. Polluted waters can make our drinking water 

unsafe, threaten the waters where we swim and fish, and endanger wildlife. To 

meet these needs and to protect public health, we need to expand our impact 

through innovation. The State Revolving Funds (SRF) alone, while important, cannot and should not be relied upon to solve all infrastructure needs. New funds available under the Water Infrastructure Finance and Innovation Act (WIFIA) credit program, as well as technical assistance to help communities plan future investments 

and better leverage Federal, state, and local resources are necessary to get us there. 

We have to confront the systematic challenges that threaten our drinking water; 

a resource essential to every human being and living thing on Earth. The EPA will 

continue to partner with states to invest in our nation’s water infrastructure. This 

budget includes a combined $2 billion request for the Clean Water and Drinking 

Water State Revolving Funds and $42 million in additional funds to provide technical assistance to small communities, loan financing to promote public-private collaboration and training to increase the capacity of communities and states to plan 

and finance drinking water and wastewater infrastructure improvements. 

The Water Infrastructure Finance and Innovation Act (WIFIA) established a new 

financing mechanism for water and wastewater infrastructure projects. In this 

budget, the EPA requests $20 million to fund the WIFIA program, which will provide direct financing for the construction of water and wastewater infrastructure by 

making loans for large innovative projects of regional or national significance. The 

WIFIA program also will work to support investments in small communities and 

promote public-private collaboration. $15 million of the $20 million increase in the 

9 

budget will allow EPA to begin making loans for WIFIA projects. The program is 

designed to highly leverage these funds, translating into a potential loan capacity 

of nearly $1 billion to eligible entities for infrastructure projects. This budget provides $22 million in funding to expand the technical, managerial, 

and financial capabilities of drinking water and wastewater systems to provide safe 

and reliable services to their customers now and into the future. Included is $7.1 

million for the Water Infrastructure and Resiliency Finance Center and the Center 

for Environmental Finance that will enable communities across the country to focus 

on financial planning for upcoming public infrastructure investments, expand work 

with states to identify financing opportunities for rural communities, and enhance 

partnership and collaboration with the U.S. Department of Agriculture. The Water 

Infrastructure and Resiliency Finance Center is part of the Build America Investment Initiative, a governmentwide effort to increase infrastructure investment and 

promote economic growth by creating opportunities for State and local governments 

and the private sector to collaborate on infrastructure development. 

PROTECTING OUR LAND

The EPA strives to protect and restore land to create a safer environment for all 

Americans by cleaning up hazardous and non-hazardous wastes that can migrate 

to air, groundwater and surface water, contaminating drinking water supplies, causing acute illnesses and chronic diseases, and threatening healthy ecosystems. We 

preserve, restore, and protect our land, for both current and future generations by 

cleaning up contaminated sites and returning them to communities for reuse. Funding will assist communities in using existing infrastructure and planning for more 

efficient and livable communities, and encouraging the minimization of environmental impacts throughout the full life cycle of materials. 

Approximately 53 million people in the U.S. live within 3 miles of a Superfund 

remedial site, roughly 17 percent of the U.S. population, including 18 percent of all 

children under the age of five. In fiscal year 7, we will increase the Superfund Remedial program by $20 million to accelerate the pace of cleanups, supporting states, 

local communities, and tribes in their efforts to assess and cleanup sites and return 

them to productive reuse, and encourage renewable energy development on formerly 

hazardous sites when appropriate. We also will expand the successful Brownfields 

program’s community-driven approach to revitalizing contaminated land, providing 

grants, and supporting area-wide planning and technical assistance to maximize the 

benefits to the communities. 

TAKING STEPS TO IMPROVE CHEMICAL FACILITY SAFETY

The EPA is requesting $23.7 million for the State and Local Prevention and Pre- paredness program, an increase of $8.4 million above the fiscal year enacted level. 

In support of the White House Executive Order 13650 on Improving Chemical Facility Safety and Security, the requested increase will allow the EPA to continue to 

expand upon its outreach and technical assistance to improve the safety and security of chemical facilities and reduce the risks of hazardous chemicals to facility 

workers and operators, communities, and responders. 

These efforts represent a shared commitment among those with a stake in chemical facility safety and security: facility owners and operators; Federal, state, local, 

tribal, and territorial governments; regional entities; nonprofit organizations; facility 

workers; first responders; environmental justice and local environmental organizations; and communities. The EPA therefore plays a significant and vital role. 

In fiscal year 7, the EPA will develop, initiate and deliver training to aid with 

expansive outreach and planning for local communities, emergency planners, and 

responders. This will assist local emergency planners and first responders in using 

the risk information available to them, educating the public about what to do if an 

accident occurs. The EPA also will work effectively with facilities to reduce the risks 

associated with the chemicals that are stored, used, or produced onsite to help prevent accidents from occurring. 

Continuing EPA’s Commitment to Innovative Research & Development 

In building environmental policy, scientific research continues to be the foundation of EPA’s work. Environmental issues in the 21st century are complex because 

of the interplay between air quality, climate change, water quality, healthy communities, and chemical safety. Today’s complex issues require different thinking and 

different solutions than those used in the past. In fiscal year 7, we will continue 

to strengthen the agency’s ability to develop solutions by providing $512 million to 

evaluate and predict potential environmental and human health impacts for decisionmakers at all levels of government. Activities in the fiscal year Budget include 

10 

providing support tools for community health, investigating the unique properties 

of emerging materials, such as nanomaterials, and research to support the nation’s 

range of growing water-use and ecological requirements. The Chemical Safety and 

Sustainability program will continue to place emphasis on computational toxicology 

(CompTox), which is letting us study chemical risks and exposure exponentially faster and more affordably than ever before. The EPA’s ToxCast program has screened 

nearly 2,000 chemicals and Tox21 has screened over 8,000. In fiscal year we have 

an opportunity to further enhance CompTox and broaden its application, adding significant efficiency and effectiveness to agency operations. 

SUPPORTING STATE AND TRIBAL PARTNERS

Effective environmental protection is a joint effort of the EPA, states and our tribal partners, and we are setting a high bar for continuing our partnership efforts. 

That’s why the largest part of our budget, $3.28 billion dollars, or almost 40 percent, 

is provided directly to our State and tribal partners. In fiscal year 7, we are requesting an increase of $77 million in funding for State and Tribal Assistance categorical 

grants in support of critical State work in air and water protection as well as continued support for our tribal partners. 

The EPA is focused on opportunities to continue building closer collaboration and 

targeted joint planning and governance processes. One example is the E-Enterprise 

for the Environment approach, a transformative 21st century strategy to modernize 

the way in which government agencies deliver environmental protection. With our 

co-regulatory partners, we are working to streamline, reform, and integrate our 

shared business processes and related systems. These changes, including a shift to 

electronic reporting, will improve environmental results, reduce burden, and enhance services to the regulated community and the public. State-EPA-Tribal joint 

governance serves to organize the E-Enterprise partnership to elevate its visibility, 

boost coordination capacity, and ensure the inclusiveness and effectiveness of shared 

processes, management improvements, and future coordinated projects. 

MAINTAINING A FORWARD LOOKING AND ADAPTIVE EPA

The EPA has strategically evaluated its workforce and facility needs and will continue the comprehensive effort to modernize its workforce. By implementing creative, flexible, cost-effective, and sustainable strategies to protect public health and 

safeguard the environment, the EPA will target resources toward development of a 

workforce and infrastructure that can address current challenges and priorities. 

We are requesting funding in this budget to help us fast-track efforts to save taxpayer dollars over the long term by optimizing and renovating critical agency space. 

That space includes laboratory buildings across the country, where we conduct critical scientific research on behalf of the American public. Since fiscal year 2, the EPA 

has released over 250,000 square feet of office space nationwide, resulting in a cumulative annual rent avoidance of nearly $9.2 million across all appropriations. Additional planned consolidations and moves could release another 336,000 square feet 

of office space in the next several years. 

The agency will continue on-going work to improve processes and advance the EEnterprise effort—replacing outdated paper processes for regulated companies with 

electronic submissions. The EPA’s goals for process improvements are: leveraging 

technology, streamlining workflow, and improving data quality, and increasing data 

sharing and transparency. The agency also is making necessary investments to improve internal IT services to support productivity and address cybersecurity needs. 

In fiscal year 7, the EPA requests $3.3 million to expand Program Evaluation and 

Lean efforts as a part of the High Performing Organization Cross-Agency Strategy. 

We continue to eliminate non-value added activities to focus more directly on all 

tasks that support its mission of protecting public health and the environment. 

The EPA continues to examine its programs to find those that have served their 

purpose and accomplished their mission. The fiscal year President’s Budget also 

eliminates some mature programs where State and local governments can provide 

greater capacity. Those grant programs are the Beaches Protection categorical 

grants, the Multi-purpose categorical grants, the Radon categorical grants, the Targeted Airshed grants and the Water Quality Research and Support grants, totaling 

$85 million. 

We are committed to do the work that is necessary to meet our mission and protect public health. The EPA’s fiscal year budget request will let us continue to make 

a real and visible difference to communities and public health every day. It will give 

us a foundation to revitalize the economy and improve infrastructure across the 

11 

country. And it will sustain state, tribal, and Federal environmental efforts across 

all our programs. 

Mr. Chairman, I thank you for the opportunity to testify today. While my testimony reflects only some of the highlights of the EPA’s fiscal year budget request, 

I look forward to answering your questions. 

RESPONSES BY GINA MCCARTHY TO ADDITIONAL QUESTIONS

FROM SENATOR GILLIBRAND

Question 1. Administrator McCarthy, thank you for testifying here today, and for 

your continued leadership at the EPA to protect clean air and clean water, and address the urgent threats we face from climate change. The EPA has a critical responsibility to protect the health of our families; whether it is working to ensure 

that our children in the Bronx can go outdoors in the summer without fear of an 

asthma attack, or that families in UpState New York can swim and fish in our 

lakes, rivers and streams without fear of pollution by harmful runoff and algae 

blooms. While we still have much work to do to fully realize those goals, initiatives 

like the Clean Power Plan and the Clean Water Rule have helped us move the ball 

forward, and I continue to support those efforts. 

I would like to ask you about a 2 areas of concern I have that are specific to New 

York: 

As I am sure you are aware, EPA Region 2 has been working to address a situation in the Village of Hoosick Falls, in UpState New York, where drinking water 

has been contaminated by the chemical PFOA. 

A significant concern is that PFOA is an ‘‘unregulated contaminant’’ under the 

Safe Drinking Water Act, which limited the EPA’s ability to respond to PFOA contamination, and led to an initially false assumption that the drinking water in 

Hoosick Falls was safe to drink, when it was in fact likely making people very sick. 

This is nothing short of an environmental disaster for the families who have been 

affected by PFOA contamination in their water. 

What would it take to reclassify PFOA so that it is regulated under the Safe 

Drinking Water Act? 

Response. The EPA is evaluating PFOA and PFOS as drinking water contaminants in accordance with the process required by the Safe Drinking Water Act 

(SDWA). To regulate a contaminant under SDWA, the EPA must find that the contaminant: (1) may have adverse health effects; (2) occurs frequently (or there is a 

substantial likelihood that it occurs frequently) at levels of public health concern; 

and (3) there is a meaningful opportunity for health risk reduction for people served 

by public water systems. 

The EPA included PFOA and PFOS among the contaminants for which water systems were required to monitor under the third Unregulated Contaminant Monitoring Rule (UCMR 3) in 2012. Results of this monitoring effort can be found on 

the publicly available National Contaminant Occurrence Data base (NCOD) at 

https://www.epa.gov/dwucmr/occurrence-data-unregulated-contaminant-monitoringrule#3, which is updated by the EPA approximately quarterly. In accordance with 

SDWA, the EPA will consider the occurrence data from UCMR 3, along with the 

peer reviewed health effects assessments supporting the PFOA and PFOS Health 

Advisories, to make a regulatory determination on whether to initiate the process 

to develop a national primary drinking water regulation. 

Question 2. Given the attention that has been placed on PFOA, and concerns that 

have been raised both in New York and other New England states about its prevalence in our region and potential health impacts, what additional steps can be taken 

to protect the public from PFOA? 

Response. The EPA established health advisories for PFOA and PFOS in May 

2016 based on the agency’s assessment of the latest peer-reviewed science in order 

to provide drinking water system operators and Federal, state, tribal and local officials, who have the primary responsibility for overseeing these systems, with information on the health risks of these chemicals. These advisories will help them take 

the appropriate actions to protect their residents. The EPA is committed to supporting states and public water systems as they determine the appropriate steps to 

reduce exposure to PFOA and PFOS in drinking water. As science on health effects 

of these chemicals evolves, the EPA will continue to evaluate new evidence. 

If past sampling data shows that drinking water contains combined PFOA and 

PFOS at individual or combined concentrations greater than 70 parts per trillion, 

water systems should: 

• Quickly undertake additional sampling to assess the level, scope and localized 

source of contamination to inform next steps; 

12 

If water sampling results confirm that drinking water contains PFOA and PFOS 

at individual or combined concentrations greater than 70 parts per trillion, the 

agency recommends that water systems: 

• Promptly notify their State drinking water safety agency (or the EPA in jurisdictions for which the EPA is the primary drinking water safety agency); 

• Consult with the relevant agency on the best approach to conduct additional 

sampling; 

• Provide consumers with information about the levels of PFOA and PFOS in 

their drinking water, including specific information on the risks to fetuses during 

pregnancy and breastfed and formula-fed infants; and 

• Identify options that consumers may consider to reduce risk, such as seeking 

an alternative drinking water source, or in the case of parents of formula-fed infants, using formula that does not require adding water. 

A number of options are available to drinking water systems to lower concentrations of PFOA and PFOS in its drinking water supply. In some cases, drinking 

water systems may be able to reduce concentrations of perfluoraklyl substances, including PFOA and PFOS, by closing contaminated wells or changing rates of blending of water sources. Alternatively, public water systems can treat source water 

with activated carbon or high pressure membrane systems (e.g., reverse osmosis) to 

remove PFOA and PFOS from drinking water. These treatment systems are used 

by some public water systems today, but should be carefully designed and maintained to ensure that they are effective for treating PFOA and PFOS. In some communities, entities have provided bottled water to consumers while steps to reduce 

or remove PFOA or PFOS from drinking water, or establish a new water supply, 

were completed. 

HOOSICK FALLS

Question 3. On February 1st, I wrote to Region 2 Regional Administrator Judith 

Enck, asking the EPA to expedite the process for listing Hoosick Falls as a Federal 

Superfund site. Will you commit to me that you will personally ensure that this 

process moves as quickly as possible and that EPA will be aggressive in ensuring 

that the contamination is remediated? 

Response. Addressing the contamination in the Village of Hoosick Falls is a high 

priority for the EPA. We are currently gathering information needed to evaluate the 

site for inclusion on the National Priorities List of Superfund sites. We also are conducting investigations to identify the parties responsible for the contamination. We 

are working actively with both the New York State Department of Health and New 

York State Department of Environmental Conservation to coordinate our respective 

investigative and remedial efforts to ensure that accurate information is provided 

to the public and to effectively address the contamination problem. 

HUDSON RIVER

Question 4. What purpose does it serve for the EPA to release a white paper dismissing data presented NOAA which has a responsibility for the Hudson River a 

Federal Trustee—before your agency even begins its 5 year review? 

Response. The EPA’s white paper presents a thorough, detailed, scientific evaluation of a scientific article authored by National Oceanographic and Atmospheric Administration (NOAA) scientists. In the EPA paper, the agency does not dismiss any 

data, but instead, identifies and addresses important and more recent data that 

NOAA did not consider in its analysis. In that analysis, NOAA concluded that the 

dredging project’s goals would not be achieved for decades longer than the EPA had 

predicted in 2002, the year the EPA selected the cleanup action. In the EPA’s white 

paper, the agency presents its conclusion that, based on more recent data, as well 

as other factors, the project is on a trajectory of environmental improvement consistent with the EPA’s prediction 14 years ago. 

In the white paper and publically, the EPA has been careful to define ‘‘project success’’ in terms of accomplishing the planned dredging/mass removal and that, following the agency’s recent comprehensive review, we do not have any information 

to indicate otherwise. Therefore, we can move forward to the project’s monitored 

natural recovery phase. The EPA has acknowledged that PCBs remain in the river 

and supports the Trustees’ efforts to address such potential injury through the Natural Resource Damage (NRD) assessment and claims process. The EPA will continue to cooperate and communicate with Federal and State natural resource trustees on the Hudson River remediation. 

13 

HUDSON RIVER-RESTORE AND PROTECT

Question 5. Will you ensure that all relevant evidence and data is evaluated during the course of the 5 year review, and that the Federal Trustees have a seat at 

the table so that EPA can work with them cooperatively to ensure that we are doing 

everything possible to fully restore and protect the Hudson River? 

Response. Yes, we are working closely with all the stakeholders to ensure a thorough Five-Year Review (FYR). The stakeholders, including the Federal Trustees, 

New York State Department of Environmental Conservation and Department of 

Health, the Community Advisory Group, and non-governmental organizations have 

been invited to be part of the FYR team. 

RESPONSES BY GINA MCCARTHY TO ADDITIONAL QUESTIONS

FROM SENATOR INHOFE

OZONE IMPLEMENTATION GUIDANCE

Question 1. EPA is required to issue ozone implementation guidance. However, despite 90 percent of the states that commented on the proposed standard requested 

EPA propose an implementation rule at the time the Agency finalized the standard, 

EPA will not propose an implementation rule until October 2016. Yet, we know EPA 

is dedicating air office officials toward the stayed-Clean Power Plan-related activities. Why are you not doing something 90 percent of states commenting, reflecting 

a bipartisan consensus, requested, rather than pursuing actions that are legally vulnerable and being challenged by more than half the states? 

Response. Concurrent with promulgation of the final revised NAAQS, the EPA 

also issued an implementation memo (https://www.epa.gov/sites/production/files/ 

2015–10/documents/implementation—memo.pdf) describing rules and guidance that 

remain current and applicable to the revised standards, and updates that the agency expects to complete for states to use in planning for the revised NAAQS. The 

EPA and State co-regulators share a long history of managing ozone air quality 

under the Clean Air Act (CAA), underpinned by a wealth of previously issued rules 

and guidance. The EPA is committed to helping air agencies identify and take advantage of potential planning and emissions control efficiencies that may occur within the horizon for attaining the 2015 standards. 

Addressing carbon pollution is also a part of the agency’s obligations under the 

Clean Air Act. Since the Supreme Court stayed the Clean Power Plan (CPP) pending judicial review before the U.S. Court of Appeals for the D.C. Circuit and any 

subsequent proceedings in the Supreme Court, many states have said they intend 

to move forward voluntarily to continue to work to cut carbon pollution from power 

plants and are seeking the agency’s guidance and assistance. The agency will be 

providing such assistance, which is not precluded by the stay. In particular, some 

states have asked to move forward with outreach and to continue providing support 

and developing tools, including the proposed design details for the Clean Energy Incentive Program (CEIP). The agency will move forward in a way that is consistent 

with the stay while providing states the tools they have asked for to help address 

carbon pollution from power plants. 

CLEAN AIR SCIENTIFIC ADVISORY COMMITTEE-NOMINATIONS

Question 2. Administrator McCarthy, as you know, I have long been concerned 

about the integrity of the selection process for nominations to the Clean Air Scientific Advisory Committee (CASAC) and the Science Advisory Board (SAB). I was 

surprised to learn in response to my February 2, 2016, letter on the most recently 

appointed members of CASAC that each of those selected were nominated not by 

the public, rather, they were all nominated by the EPA or an EPA designated Federal officer. Essentially, anyone nominated by an individual outside of the agency’s 

network was not selected. Are you concerned by this finding? What is the point of 

soliciting public nominations if the EPA only selects those internally appointed? 

Response. The EPA has policies and procedures that meet and exceed what is required by law, in order to assure expert and independent advice from our advisory 

committees. For example, although not required by law, the EPA provides the general public the opportunity to nominate candidates for the CASAC. The agency believes this more open nominations process expands the breadth and diversity of its 

applicant pool. In selecting members for the CASAC, the agency evaluates the qualifications and experience of all candidates without regard to whether individuals are 

nominated by the public or identified through staff outreach. 

14 

SCIENCE ADVISORY BOARD-POLICY STATEMENT

Question 3. Administrator McCarthy, as part of the fiscal year omnibus, EPA was 

required to develop a policy statement for its Science Advisory Board, which would 

include goals on increasing membership from states and tribes, as well as update 

its conflict of interest policy. This was to be submitted to GAO for review last 

month. I understand it is still outstanding. What is the reason for delay and when 

does the Agency plan to submit this policy statement? 

Response. The agency has developed a draft policy statement for the Science Advisory Board (SAB) and the Clean Air Scientific Advisory Committee (CASAC) that 

describes how the EPA implements the Federal Advisory Committee Act (FACA), 

Federal ethics regulations, and agency policies for scientific integrity and peer review applicable to these advisory committees. The agency remains committed to the 

goal of including a diversity of scientific perspectives on the SAB and the CASAC, 

including the perspectives of scientists from State and local governments, tribes, industry, and nongovernmental organizations. The draft policy statement is currently 

undergoing final internal review and should be provided to the GAO in the coming 

weeks. The agency takes seriously the requirements for transparency, independence 

and balance of its advisory committees, including the SAB and the CASAC. The 

EPA frequently goes above and beyond the requirements of FACA to ensure that 

the SAB and the CASAC advisory processes are open and transparent, and applies 

Federal ethics regulations to members of these committees. 

GAO RECOMMENDATION

Question 4. Administrator McCarthy, last May GAO issued a report on the SAB 

entitled, ‘‘EPA’s Science Advisory Board: Improved Procedures Needed to Process 

congressional Requests for Scientific Advice,’’ that included four recommendations— 

all of which remain unimplemented. What is the reason for delay in fulfilling these 

recommendations? 

Response. In the June 2015 report, EPA’s Science Advisory Board: Improved Procedures Needed to Process congressional Requests for Scientific Advice (GAO 15– 

500), the Government Accountability Office (GAO) recommended that the agency 

clarify procedures for reviewing congressional committee requests to the SAB to determine which questions should be taken up by the SAB and criteria for evaluating 

such requests. The agency agreed with those recommendations and is developing a 

process for considering requests for the SAB advice from the congressional committees listed in the SAB’s authorizing statute (the Environmental Research, Development and Demonstration Authorization Act, ERDDAA). The draft process is undergoing final internal review and should be finalized in the coming weeks. In addition 

to developing a written process for evaluating congressional requests for the SAB 

advice, the agency is considering whether amendments to the SAB charter also 

would be helpful to clarify how congressional requests for the SAB advice will be 

handled. 

SIP BACKLOG

Question 5. At a March 9 full committee hearing with State environmental regulators, we received testimony that EPA has increasingly issued Federal implementation plans while simultaneously slow-walking review of State implementation plans. 

Although I understand EPA has made some progress in addressing the SIP backlog, 

can you please provide the Committee a breakdown of the status of EPA’s work toward reducing the SIP backlog? 

Response. The EPA has been working with states since 2013 on plans to reduce 

the State Implementation Plan (SIP) backlog and address the states’ priority SIPs. 

This work has resulted in 4-year plans developed with states to substantially reduce 

the historic backlog of SIPs by the end of 2017. Steady and substantial progress has 

been made over the last several years through the EPA and the states working together. An important part of the agency’s joint effort with the states is ongoing discussions between the regions and states to identify which SIPs the states prioritize 

for action. The EPA has acted on hundreds of pending SIPs in each of the last several years. 

NATIONAL ACADEMY OF SCIENCES REVIEW-SCC

Question 6. In July 2015, the EPA, as part of the Interagency Working Group on 

the Social Cost of Carbon (SCC), requested the National Academy of Sciences review 

the SCC. How much funding for NAS’s review has EPA committed? 

15 

Response. At the request of the Interagency Working Group (IWG) on the Social 

Cost of Carbon, co-chaired by the White House’s Office of Management and Budget 

(OMB) and Council of Economic Advisors (CEA), the National Academies of 

Sciences, Engineering and Medicine convened a Committee on ‘‘Assessing Approaches to Updating the Social Cost of Carbon.’’ This is an interagency sponsored 

project, with contributions coming from the EPA as well as the Departments of 

Commerce, Energy, Interior, and Transportation. The Department of Energy (DOE) 

is serving as the coordinating agency for the contract. 

MULTIPURPOSE GRANTS

Question 7. For fiscal year Congress appropriated $21 in multipurpose grants to 

states and tribes, which EPA requested zero funding for in its fiscal year budget 

request. Can you please explain the reason for eliminating funds for this program? 

In early April, EPA released its formula for disbursing the grants, with more than 

60 percent going to ‘‘core air regulatory work;’’ yet Congress stipulated the grants 

were to provides ‘‘states and tribes to have the flexibility to direct resources.’’ How 

does EPA’s formula provide states and tribes flexibility to use these grants? 

Response. The EPA formula provides flexibility to states within both funding 

focus areas. First, states have latitude to decide what air activities to fund with the 

air portion of their funding. The second part of a state’s funding is available for priority activities identified by individual states under any existing continuing environmental program. For both focus areas, State identified activities must fall under existing Federal environmental statutes consistent with the language included in the 

fiscal year appropriations. Additionally, states have the flexibility to fund these activities under a Performance Partnership Grant (PPG) or new standalone multipurpose grant. The fiscal year President’s Budget request included increases for several 

grants to states and tribes, including $40 million for State and local air quality 

management grants, $30.9 million for Tribal General Assistance Program grants, 

$15.7 million for Environmental Information grants, and $15.4 million for pollution 

control (section 

RESPONSES BY GINA MCCARTHY TO ADDITIONAL QUESTIONS

FROM SENATOR ROUNDS

EPA REGULATIONS-RESOURCES

Question 1. We have held several hearings in which State and local officials have 

come to testify about the challenges of implementing EPA regulations on a limited 

budget with limited resources. This is particularly problematic in South Dakota, 

where the Department of Environment and Natural Resources is a small staff with 

a limited budget and is required to oversee the implementation and compliance with 

State and Federal regulations. Although we have repeatedly heard your agency say 

that there are resources to help states comply with regulations, I am increasingly 

concerned with the amount of what I consider to be unfunded mandates coming out 

of your agency. 

Again, although you have said there are resources to help states comply with EPA 

regulations, I have heard time and time again that this is not the case as these limited resources are spread out among all of the states. What do you tell states who 

are repeatedly telling you that they simply don’t have the resources to comply with 

these vast, comprehensive EPA regulations? 

Response. Supporting our State partners, the primary implementers of environmental programs on the ground, is a long-held priority of the EPA. Funding to 

states and tribes in the State and Tribal Assistance Grants (STAG) account continues to be the largest percentage of the agency’s budget, at 39.7 percent in fiscal 

year 7. This percentage excludes resources the EPA provides to states and tribes 

via cooperative agreements, interagency placement assignments, and other vehicles 

from the agency’s operating accounts (e.g., Leaking Underground Storage Tanks, 

Superfund, and Environmental Programs and Management). This reflects the agency’s recognition of and commitment to supporting our partners and leveraging limited resources to oversee the implementation of and compliance with EPA regulations. In fiscal year 7, the EPA will continue to modernize the business of environmental protection through the E-Enterprise strategy jointly governed by states and 

the EPA. Under the E-Enterprise strategy, the agency will continue to streamline 

its business processes and systems to reduce reporting burden on states and regulated facilities, and improve the effectiveness and efficiency of regulatory programs 

for the EPA, states, and tribes. 

16 

EPA REGULATIONS-STATE COMPLIANCE

Question 2. We have held several hearings in which State and local officials have 

come to testify about the challenges of implementing EPA regulations on a limited 

budget with limited resources. This is particularly problematic in South Dakota, 

where the Department of Environment and Natural Resources is a small staff with 

a limited budget and is required to oversee the implementation and compliance with 

State and Federal regulations. Although we have repeatedly heard your agency say 

that there are resources to help states comply with regulations, I am increasingly 

concerned with the amount of what I consider to be unfunded mandates coming out 

of your agency. 

Do you plan to do anything more to help states comply with current and future 

EPA regulations? 

Response. The fiscal year President’s Budget includes an increase of $40 million 

for State grants to assist with implementation of climate and air quality programs, 

as well as $15.4 million for State and tribal grants to assist with implementation 

of water quality programs. The request also includes an additional $15.7 million for 

grants to states and tribes to build tools, services, and capabilities that will enable 

greater exchange of data for delegated programs between states, tribes, regulated 

entities, and the EPA following E-Enterprise principles. Leveraging technology will 

enable the EPA, states, and tribes to move from a heavily paper-based evidence 

gathering process to a digitally based rapid electronic process. The vision is to better 

identify patterns of problems, be more efficient and effective in data collection and 

records management, increase transparency on programmatic and compliance status 

and allow for quicker responses where appropriate. 

REGULATORY IMPACT ANALYSES

Question 3. Last year the Subcommittee on Superfund, Waste Management, and 

Regulatory Oversight held a hearing on EPA’s use of Regulatory Impact Analyses 

(RIA’s) and the cost and benefit of EPA regulations. At the hearing we discussed 

a July 2014 GAO report that offered several recommendations for how EPA could 

improve adherence to OMB guidance, enhance the accuracy of RIA’s and better 

monetize the cost and benefits of RIA’s. 

I am concerned that EPA continued to promulgate major, costly regulations, such 

as WOTUS and the Clean Power Plan, without fully implementing GAO’s recommendations. I understand these recommendations are still open, when can we expect they will be fully implemented? 

Response. In its recent update on these recommendations (http://www.gao.gov/ 

products/GAO–14–519), the GAO has closed one recommendation, recognizing that 

the EPA has implemented it. On other recommendations, the GAO notes that ‘‘EPA 

is making progress in the spirit of’’ these recommendations but has not closed them 

given the longer-term nature of these efforts. 

REGULATORY IMPACT ANALYSES-RELIABILITY

Question 4. Last year the Subcommittee on Superfund, Waste Management, and 

Regulatory Oversight held a hearing on EPA’s use of Regulatory Impact Analyses 

(RIA’s) and the cost and benefit of EPA regulations. At the hearing we discussed 

a July 2014 GAO report that offered several recommendations for how EPA could 

improve adherence to OMB guidance, enhance the accuracy of RIA’s and better 

monetize the cost and benefits of RIA’s. 

How do you explain the reliability of recent EPA regulations, if they were promulgated through a process that GAO specifically suggested might not be entirely accurate and needed improvement? 

Response. While the GAO made recommendations to improve the agency’s process, there was not a finding of systematic deficiencies with respect to the accuracy 

of the analytical work. The EPA regulations have been developed in accordance with 

all applicable requirements, including those of Executive Orders 12866 and 13563 

and the guidelines of OMB Circular A–4. The EPA relies on the best available information to calculate both the costs and benefits of rules and further refines these 

analyses through the interagency and public comment processes. In addition, the 

EPA maintains a public docket where all of the underlying documentation for each 

RIA is available. Further, consistent with E.O. 12866, the RIAs developed for economically significant regulations are reviewed by OMB and undergo an interagency 

review process before being released for public notice and comment. 

17 

EPA REGULATIONS-SMALL BUSINESS IMPACTS

Question 5. Last month, the Subcommittee on Superfund, Waste Management, 

and Regulatory Oversight hosted a hearing on small business impacts from EPA 

regulations, and we received testimony regarding a number of instances where the 

EPA has disagreed with the Office of Advocacy’s recommendations on a particular 

rulemaking. Our witnesses testified that there is no mechanism in the law that reconciles these differences between the EPA and the Office of Advocacy. I asked at 

the hearing for you to share how you view the Office of Advocacy’s recommendations 

and how seriously you consider these recommendations throughout the rulemaking 

process, to which you said you do take Advocacy’s comments into account. However, 

there are many instances where the Agency, in fact, takes action against Advocacy’s 

recommendation. 

Do you think a third party arbiter would help reconcile differences between EPA 

and Advocacy? 

Response. The agency considers all comments received as part of a rulemaking 

process, including information received from the public as well as through the interagency process. The views of small businesses are taken into account through various means in the process, including participation by the Small Business Administration in the interagency review process run by the Office of Management and 

Budget. In addition, as part of its Regulatory Flexibility Analysis for a rulemaking, 

the agency responds to comments filed by the Office of Advocacy. The agency describes steps taken to minimize impacts on small businesses and other small entities, and provides an explanation of why any significant alternatives considered by 

the agency that affect the impacts on small entities were not adopted in the rule. 

REGULATORY FLEXIBILITY ACT

Question 6. At the same subcommittee hearing, we received testimony that there 

are opportunities for EPA to increase transparency with its implementation of the 

Regulatory Flexibility Act. For example, one witness testified that EPA could make 

its final SBREFA report public at the time complete rather than waiting until a rule 

is issued, something OSHA already does with its SBREFA reports. 

Why does EPA wait until a rule is issued to release its SBREFA report? Don’t 

you think the public and regulated entities, such as small businesses, would benefit 

from the report being made publicly available as soon as complete? Will you commit 

to making these reports public when complete moving forward? 

Response. A completed SBREFA report is one of the support documents used by 

the agency in developing a proposed rule, and is provided to the Administrator so 

that its recommendations may be considered during the development of the rule. 

The report is made public when the proposed rule is released for public comment, 

consistent with all applicable requirements. Small entity representatives provide 

key input to the Federal participants in the Small Business Advocacy Review Panel, 

who then develop recommendations to the Administrator on how best to achieve the 

goals of the RFA. Because the Panel Report is a key element of the administrative 

record for the proposed rule, it is placed in the rulemaking docket at the time the 

proposed rule is published. Comments on the report are then considered in development of a final rule. 

REGULATORY FLEXIBILITY ACT

Question 7. The courts have held agencies are not required to consider indirect 

or secondary impacts of a rule for purposes of the Regulatory Flexibility Act. However, I understand that the compliance burden is on the states, but often small businesses are significantly indirectly impacted by regulations, regardless of who has 

the burden of complying with the regulations. 

Do you believe indirect impacts on small businesses should be considered and do 

you think a rulemaking would benefit from greater small business input early in 

the rule development process? 

Response. In addition to the requirements of the Regulatory Flexibility Act, the 

agency frequently undertakes many types of public outreach, including outreach to 

small businesses, during the development of its rules. For example, the agency may 

hold public meetings early in the rule development process. Frequently, agency offices, including the regional offices, hold meetings with stakeholders including small 

businesses. The information gained from this engagement informs the rulemaking 

process by providing input from various stakeholders. In addition to the public and 

stakeholder meetings, the agency has other mechanisms in place to ensure that the 

views of small businesses can be incorporated into the agency’s decisionmaking procVerDate Aug 31 2005 09:52 Aug 24, 2016 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\21265.TXT VERN
18 

esses. One such example is that the EPA’s Deputy Administrator holds periodic 

meetings with small businesses to discuss regulatory topics suggested by and of interest to small businesses. The EPA also has an Asbestos and Small Business Ombudsman that advocates for small business during the EPA rulemaking process. 

RESPONSES BY GINA MCCARTHY TO ADDITIONAL QUESTIONS

FROM SENATOR WICKER

WATERSHED TRADING PROGRAM

Question 1. Do you think EPA needs to do more to allow watershed trading to 

occur? 

Response. The EPA has taken many important steps to support efforts by states 

and other stakeholders to pursue water quality trading consistent with the Clean 

Water Act. 

To date, the EPA has authorized forty-six states to run their own National Pollutant Discharge Elimination System (NPDES) programs. State permitting authorities 

(or the EPA in unauthorized states) can establish water quality trading programs, 

based on their unique regulatory structure as well as stakeholder and environmental needs. The primary demand-side driver for nutrient trading is the existence 

of a new or more stringent water quality based effluent limit for nutrients in a point 

source’s NPDES permit. States usually include such water quality-based effluent 

limits in NPDES permits following State establishment of a nutrient TMDL, or 

State determination of ‘‘reasonable potential’’ for the NPDES permittee’s discharge. 

Without this permit driver in place, there has been little demand for nutrient reduction credits. 

Roughly one third of states have had water quality trades in their state. Each 

State with a trading program has developed its own unique trading rules. Some 

states have enacted statutes or regulations that authorize and regulate their statewide trading programs, such as Connecticut, Virginia, and Ohio. Other states authorize trading on a case-by-case basis through watershed-specific or individual 

NPDES permits, such as North Carolina’s Neuse River Compliance Association trading program. Other states, such as Arkansas and Louisiana, are considering developing water quality trading programs. Many of the states with active trading programs, such as Pennsylvania and Oregon, allow NPDES permit holders to attain 

their nutrient water quality-based effluent limits through the purchase of nonpoint 

source nutrient reduction credits. 

As demand drivers increase, we anticipate water quality trading to increase as a 

flexible method for meeting those regulatory requirements. The EPA looks forward 

to continuing its work with states and other stakeholders interested in pursuing 

these approaches. 

WATERSHED TRADING PROGRAM-CLEAN WATER ACT

Question 2. EPA allows some non-point source nutrient reduction initiatives under 

EPA’s watershed trading program, but there is no usable process to allow this to 

occur. 

Are legislative changes to the Clean Water Act necessary to make watershed trading usable? 

Response. The Clean Water Act provides sufficient authority for the EPA to implement its water quality trading policy. The EPA’s 2003 Water Quality Trading Policy 

encourages states, interState agencies and tribes to develop and implement water 

quality trading programs consistent with the Clean Water Act (CWA) and its implementing regulations for nutrients, sediments and other pollutants (with some exceptions) where opportunities exist to achieve water quality improvements at reduced 

costs. One of the EPA’s roles under its CWA oversight authority is to ensure that 

any such water quality trading programs are consistent with the CWA and its implementing regulations. The EPA is working with states and interested stakeholders 

to educate and assist them regarding their options for establishing water quality 

trading programs. 

DISINFECTION BY-PRODUCTS RULES

Question 3. Are Tier 2 public notices (PN) for the EPA disinfection by-products 

rules eligible for electronic reporting or annual notice (similar to Tier 3 PNs)? 

Response. Tier 2 notices require notice within 30 days of the violation and subsequent notice every 3 months for as long as the violation continues. Annual notices 

are not an option. Tier 2 requires mail or direct delivery with the bill and a method 

19 

to notify those who do not receive a bill or do not have service connection addresses 

(such as renters, apartments, nursing homes, etc.). Posting on the internet is allowed as one of the methods to reach those consumers. In addition, systems might 

be required to use other methods to reach consumers who might not see a posted 

notice in a school, library, or other commercial/public buildings. 

NATIONAL RADON ACTION PLAN

Question 4. In your testimony on April 19, you stated that the National Radon 

Action Plan (NRAP) will replace the Federal Radon Action Plan (FRAP). The major 

differences between FRAP and NRAP are that NRAP has no dedicated funding plan 

like the State Indoor Radon Grant (SIRG) program and the major responsibilities 

are pushed to the states and private sector. 

How will NRAP be successful without Federal funding and active Federal leadership? 

Response. In fiscal year 6, the EPA closed out the Federal Radon Action Plan and 

launched a broader plan, the National Radon Action Plan (NRAP). This plan was 

endorsed by nine non-governmental organizations and three Federal agencies. The 

EPA will continue to lead the Federal Government’s response to radon and continue 

to implement the agency’s own multi-pronged radon program. With funding requested in fiscal year through the agency’s indoor air program, the EPA will encourage radon risk reduction as a normal part of doing business in the real eState marketplace, will promote local and State adoption of radon prevention standards in 

building codes, and will participate in the development of national voluntary standards (e.g., mitigation and construction protocols) for adoption by states and the 

radon industry 

NATIONAL RADON ACTION PLAN—SIRG PROGRAM

Question 5. In your testimony on April 19, you stated that the National Radon 

Action Plan (NRAP) will replace the Federal Radon Action Plan (FRAP). The major 

differences between FRAP and NRAP are that NRAP has no dedicated funding plan 

like the State Indoor Radon Grant (SIRG) program and the major responsibilities 

are pushed to the states and private sector. 

Is there a plan or need to create a SIRG program within NRAP to make it successful? 

Answer: In fiscal year 6, the EPA closed out the Federal Radon Action Plan and 

launched a broader plan, the National Radon Action Plan (NRAP). This plan was 

endorsed by nine non-governmental organizations and three Federal agencies. The 

EPA will continue to lead the Federal Government’s response to radon and continue 

to implement the agency’s own multi-pronged radon program. With funding requested in fiscal year through the agency’s indoor air program, the EPA will encourage radon risk reduction as a normal part of doing business in the real eState marketplace, will promote local and State adoption of radon prevention standards in 

building codes, and will participate in the development of national voluntary standards (e.g., mitigation and construction protocols) for adoption by states and the 

radon industry. 

STATE INDOOR RADON GRANT PROGRAM

Question 6. You justified EPA’s cuts in funding for SIRG in part by saying that 

SIRG funding to some states has not been very effective. 

Can EPA modify the grant allocation to make SIRG more effective? Please comment and assess ways to improve SIRG rather than eliminate it. 

Response. Reducing radon related deaths continues to be a priority for the EPA 

and the Administration. From 1990 to 2013, the estimated number of homes needing mitigation (i.e., having radon levels at or above 4 picocuries per liter (pCi/L) and 

no mitigation system) increased by 14 percent; from about 6.2 million to 7.1 million 

homes. During the same period, the number of homes with operating mitigation systems increased by more than 700 percent from 175,000 to 1,245,000 homes. 

For over 25 years, the EPA has provided Federal funding to states and technical 

support to transfer best practices among states that promote effective program implementation across the Nation. Section 306 of the Indoor Radon Abatement Act 

(IRAA) authorizes radon grant assistance to states, as defined by the Toxic Substances Control Act (TSCA) Title III. The EPA has targeted this funding to support 

states with the greatest populations at highest risk. In future years, the EPA will 

continue to promote partnerships between national organizations, the private sector, 

20 

and more than 50 state, local, and tribal governmental programs to achieve radon 

risk reduction. 

STATE INDOOR RADON GRANT PROGRAM—RADON PROFESSIONALS

Question 7. If SIRG is eliminated, will EPA undertake and maintain the State 

listings of certified radon professionals? 

Response. In fiscal year 7, the EPA will continue providing consumers with information and guidance on locating qualified radon measurement and mitigation services professionals. The EPA’s website (https://www.epa.gov/radon/find-radon-test-kitor-measurement-and-mitigation-professional#who) contains information regarding 

radon credentialing programs, listings for State radon program contacts and general 

indoor air quality information. In addition, most states provide information about 

qualified radon service providers and many states have some form of radon requirements for radon service providers. 

Forty-five states requested and received State Indoor Radon Grants (SIRGs) funding this past fiscal year. In the absence of SIRG, states would depend on their own 

funds to continue investment in radon programs. States receiving Federal SIRG 

funds are required to provide a 40 percent match. Many states provide this through 

in-kind matches (non-monetary resources), others through appropriated funds. This 

would be the starting place for states to consider whether they would fund State 

programs in the absence of SIRG funds. A number of states have developed additional radon funding mechanisms through State licensing or mitigation system installation fees. 

STATE INDOOR RADON GRANT PROGRAM—CONSUMERS

Question 7. How will the agency ensure that consumers are not subject to fraud 

from uncertified professionals using equipment that may not be calibrated and 

traceable to a radon standard or a radon decay product standard, particularly in 

non-regulated states? 

Answer: In fiscal year 7, the EPA will continue providing consumers with information and guidance on locating qualified radon measurement and mitigation services professionals. The EPA’s website (https://www.epa.gov/radon/find-radon-test-kitor-measurement-and-mitigation-professional#who) contains information regarding 

radon credentialing programs, listings for State radon program contacts and general 

indoor air quality information. In addition, most states provide information about 

qualified radon service providers and many states have some form of radon requirements for radon service providers. 

Forty-five states requested and received State Indoor Radon Grants (SIRGs) funding this past fiscal year. In the absence of SIRG, states would depend on their own 

funds to continue investment in radon programs. States receiving Federal SIRG 

funds are required to provide a 40 percent match. Many states provide this through 

in-kind matches (non-monetary resources), others through appropriated funds. This 

would be the starting place for states to consider whether they would fund State 

programs in the absence of SIRG funds. A number of states have developed additional radon funding mechanisms through State licensing or mitigation system installation fees. 

STATE INDOOR RADON GRANT PROGRAM—STATE GRANTEES

Question 8. Please provide a list of State grantees and indicate which states are 

likely to continue their current investment in radon in the absence of Federal SIRG 

funding. 

Answer: In fiscal year 7, the EPA will continue providing consumers with information and guidance on locating qualified radon measurement and mitigation services professionals. The EPA’s website (https://www.epa.gov/radon/find-radon-test-kitor-measurement-and-mitigation-professional#who) contains information regarding 

radon credentialing programs, listings for State radon program contacts and general 

indoor air quality information. In addition, most states provide information about 

qualified radon service providers and many states have some form of radon requirements for radon service providers. 

All states with the exception of New Hampshire, Maryland, Hawaii, Arkansas, 

and Louisiana requested and received State Indoor Radon Grants (SIRGs) funding 

this past fiscal year. In the absence of SIRG, states would depend on their own 

funds to continue investment in radon programs. States receiving Federal SIRG 

funds are required to provide a 40 percent match. Many states provide this through 

in-kind matches (non-monetary resources), others through appropriated funds. This 

21 

would be the starting place for states to consider whether they would fund State 

programs in the absence of SIRG funds. A number of states have developed additional radon funding mechanisms through State licensing or mitigation system installation fees. 

RADON RISK MAPS

Question 9. The last Federal surveys and State radon mapping occurred nearly 

three decades ago. Several states have updated State risk data with their own maps 

that show a larger risk than initial assessments. Does EPA have any plans to update the EPA radon risk maps? 

Response. In fiscal year 7, the EPA will continue to maintain its map of radon 

zones aimed at assisting national, State and local governments, and private organizations to target their resources to implement radon-resistant building codes. Please 

visit https://www.epa.gov/radon/find-information-about-local-radon-zones-and-statecontact-information#radonmap for more information. The agency continues to recommend that this map be supplemented with any new data vetted by the states in 

order to further understand and predict the radon potential for specific areas and 

counties. This approach is captured in new consensus-based private sector radon 

standards under development by the radon industry’s standards consortium. 

ECOLABELS

Question 10. The US Green Building Council recently announced the LEED green 

building rating system will now award credit for forest products certified to the SFI 

and ATFS standards. I understand that the EPA is re-examining its interim recommendations regarding the use of environmental standards and labels in Federal 

procurement for lumber. 

Can you please tell me what your agency is doing to reconsider your recommendation and ensure that it appropriately recognizes other credible standards like Sustainable Forestry Initiative (SFI) and the American Tree Farm System (ATFS)? 

Response. The EPA is seeking clarification from the U.S. Green Building Council 

(USGBC) on whether the LEED Alternative Compliance Pathway that awards credit 

for forest products certified to the Sustainable Forestry Initiative (SFI) and American Tree Farm System (ATFS) standards sufficiently addresses environmental criteria or if it is focused more narrowly on legality of harvesting. 

The Implementing Instructions for Executive Order 13693—Planning/or Federal 

Sustainability in the Next Decade—directed the EPA, in consultation with the Office of Management and Budget and the Council on Environmental Quality, to issue 

these recommendations to assist Federal purchasers in identifying and procuring 

environmentally sustainable products. The basis for our interim recommendations 

on wood/lumber was the DOE GreenBuy Program. The EPA is pursuing several options to determine if an update to the lumber/wood interim recommendations is appropriate, and has updated the website to reflect this (see the footnote for Lumber/ 

Wood under the Construction sector at https://www.epa.gov/greenerproducts/epasrecommendations-specifications-standards-and-ecolabels). 

The EPA is engaging with both the Department of Energy and the U.S. Department of Agriculture in a high-level review to determine the effectiveness of these 

standards in protecting human health and the environment. Furthermore, the 

EPA’s standards executive is currently reviewing the forestry standards to determine if they were developed through a voluntary consensus approach consistent 

with the National Technology Transfer and Advancement Act (NTTAA) and OMB 

Circular A–119. Finally, SFI, ATFS, Canadian Standards Association (CSA) and 

Forest Stewardship Council (FSC) have each volunteered to have their forestry 

standards assessed against the criteria developed through a multi-stakeholder consensus process in the guidelines pilot for the flooring and furniture sectors. The results of that pilot assessment can help inform whether those standards would meet 

the EPA’s baseline criteria for environmental performance as specified in the EPA’s 

draft guidelines for Environmental Performance Standards and Ecolabels for use in 

Federal procurement. 

ECOLABELS—INTERIM RECOMMENDATIONS

Question 11. The US Green Building Council recently announced the LEED green 

building rating system will now award credit for forest products certified to the SFI 

and ATFS standards. I understand that the EPA is re-examining its interim recommendations regarding the use of environmental standards and labels in Federal 

procurement for lumber. 

22 

Can you give me an assurance that you will move quickly with this review and 

provide a timeline when a decision will be made? 

Response. The EPA will consider the input received from other Federal agencies, 

stakeholders, and experts, along with information obtained during our assessment 

of forestry standards during the pilot process, to inform the further refinement and 

finalization of the EPA’s guidelines and recommendations. The agency believes it 

can decide on a path forward within the next several months. 

Senator INHOFE. Thank you, Madam Administrator. 

First of all, in light of what is going on right now, you have the 

Supreme Court and their stay is taking place on the Clean Power 

Plan. I wrote EPA a letter on March the 10th on this topic, but the 

response received yesterday doesn’t really answer the question, I 

don’t believe. 

EPA’s letter states that it will not need to submit initial plans 

by September 6th of 2016, as initially stated. But it doesn’t say 

about after that, because in 2018 it would seem to me that as long 

as the stay is there, and, of course, it is going to be there until all 

the legal problems are cleared up, 27 States, including my State of 

Oklahoma, is suing you at this time. 

So it is going to be at least probably 2018. Now, 2018 happens 

to be the deadline of the final. Now, is that deadline going to be 

delayed also, the same as the deadline for the beginning that would 

have taken place on September the 6th? 

Ms. MCCARTHY. Well, Senator, what we do know is that the implementation of the rule is currently stayed. The Supreme Court 

didn’t actually speak to any of the tolling issues regarding the compliance requirements. We certainly know that the issue will not be 

resolved by this coming October and September. Beyond that, the 

courts are going to have to speak to that issue when decisions are 

made. 

Senator INHOFE. But as far as deadlines, you have these people 

out there right now looking at deadlines in different States, different counties, the private sector. Are you saying that you are not 

prepared now to extend those deadlines like you did the initial 

deadline of September 6th? 

Ms. MCCARTHY. No, sir. We are stayed in terms of moving forward to implement the rule as it currently exists, and we need to 

wait for the court to make those decisions. 

Senator INHOFE. And I assume the same thing is true with 

WOTUS? 

Ms. MCCARTHY. That is correct. 

Senator INHOFE. OK, now, I think the majority would not agree 

with that. 

I want to mention one other thing, and this time goes by pretty 

fast. On December 14th the Government Accountability Office, the 

GAO, found the EPA violated the Anti-Deficiency Act and appropriations law restrictions on covert propaganda and grassroots lobbying in promoting the WOTUS rule. Now, the Anti-Deficiency Act 

requires the EPA to report immediately to Congress and to the 

President about the violation. Have you done this? 

Ms. MCCARTHY. We actually have our response at OMB now and 

they are looking at that. We have not, as far as I know, identified 

resources that were attributable to the two issues out of many that 

GAO identified. 

Senator INHOFE. Now, who has that now? 

23 

Ms. MCCARTHY. The office of Management and Budget is looking 

at our corrections, as well as any identified resources that went 

into those two issues that GAO identified. 

Senator INHOFE. And you are saying that is going to happen before this Committee is going to be in a position to evaluate this? 

Because when they say report immediately to Congress, that is us. 

Ms. MCCARTHY. Yes. Well, sir, these are two issues. They are 

both social media issues, one related to a blog, the other related to 

the use of a social media that we used in accordance with OMB 

guidance. We haven’t really identified significant funding that went 

into either of those two actions. 

Senator INHOFE. Well, OK. I would say this: That is something 

that this Committee is very concerned about. 

I do want to get one other issue out there, the ozone. We have 

talked about this in the past. 

Ms. MCCARTHY. Yes. 

Senator INHOFE. We have the requirements, parts per million or 

the parts per ppb, and it appears that we set standards, then go 

down the road, and before the counties, now this is confusing because you really think in terms of the number of people, the population. What happens, the 210 counties account for 40 percent of 

the American population. So we have 40 percent of the American 

population from those counties not in compliance with the 75 parts 

per million. 

Now, what was the reasoning behind going over and now saying, 

even before you do that, we are going to set a new standard of 70 

parts per million? What is the logic? 

Ms. MCCARTHY. Well, very quickly, what happened was that the 

prior administration moved forward with an ozone standard that 

the courts deemed was not legally solid and based on sound 

science. They kicked it back to the Agency. The court dictated us 

to resolve that issue in a specific timeframe, and then we also had 

obligations under the Clean Air Act to continue to look every 5 

years at whether those standards need to be adjusted. So it ended 

up squeezing the system a bit. 

Senator INHOFE. It doesn’t mean you have to set those standards, 

yet. You have to, you say, look at them. 

Ms. MCCARTHY. Yes. 

Senator INHOFE. Right now Senators Thune and Flake have legislation, you are familiar with that legislation, where it says that 

until 85 percent of the counties have, although it could be interpreted as to the population, but 85 percent of the counties have 

complied, we are not going to be setting new standards. Is that reasonable or is that unreasonable? 

Ms. MCCARTHY. Well, there is no inconsistency with continuing 

to move in a fashion that is reasonable to continue to look at how 

we achieve health standards moving forward. We have always had 

great success over time, and there is no threat to establishing a 

standard on health as long as the implementation is reasonable 

and appropriate, which we believe it is and has been. 

Senator INHOFE. Well, I was the mayor of Tulsa when we were 

out of compliance, and it was very, very difficult. So these people 

are going through the punishment phase before they have had a 

chance to accomplish. 

24 

Ms. MCCARTHY. Well, we don’t think of it as a punishment 

phase. 

But the good news is that when we are looking at the ozone 

standard, even the most stringent one that we just established at 

70 part per billion, we are only looking at about a dozen counties 

that would be out of attainment by 2025, if you don’t count the 

counties in California, which we know have unique geographic 

challenge. 

So we actually think that they can use the systems already in 

place, the rules have been put in place, that reducing NOx and 

VOC emissions to achieve national compliance, as well as address 

significant problems at the county level. So we are actually moving 

in a way that is consistent with the direction that the Nation is 

heading, and the good news is that we have had so much success 

in reducing NOx and VOCs that this should not be a significant 

burden to any county. 

Senator INHOFE. Well, it is a burden because we have been there. 

Senator Boxer. 

Senator BOXER. Administrator McCarthy, my State just experienced a massive natural gas leak at Aliso Canyon that released 

96,000 metric tons of methane into the atmosphere. Until the well 

was capped, the leak accounted for 20 percent of California’s total 

methane emissions, and that is a potent greenhouse gas, as we all 

know. This highlights the need to improve controls for methane 

emissions. 

I am pleased the EPA has made it a priority to cut methane 

emissions from existing sources of methane. When do you expect to 

propose standards for existing sources? Give me an idea. 

Ms. MCCARTHY. Well, Senator, we are moving forward hopefully 

very soon with the release of the information collection request, 

which is really the fundamental information we need in order to 

regulate effectively under the law. So we are looking at opportunities to move quickly this year, as well as continue that. 

Senator BOXER. Well, when do you expect to propose standards? 

I mean, I know you are going to start. Just give me a sense of it. 

It may be the next administration, but when do you think you will 

have these? 

Ms. MCCARTHY. Well, we certainly would have a significant information next fiscal year, but we are not ruling out an opportunity 

to continue this this year. 

Senator BOXER. Well, just count me as one person who thinks 

this is essential, because what a nightmare we have had. 

Administrator McCarthy, EPA’s proposed revisions to its Risk 

Management Program regulations will add new requirements for 

chemical facilities to improve safety. I have had to deal with this 

when I was chairman of this Committee, these horrific explosions 

because of the failure to really have the best safety standards at 

these plants. 

So the rule is long overdue. OMB’s Website indicates EPA intends to publish a final rule by the end of 2016. Can you assure 

this Committee that you can complete that rule on time? 

Ms. MCCARTHY. We are fully prepared to complete that rule on 

time. It is out; it is open for comment. We are looking forward in 

delivering that to the American people by the end of this year. 

25 

Senator BOXER. So your intent is to have the rule by the end of 

2016. 

Ms. MCCARTHY. We do intend to do that. 

Senator BOXER. OK. Administrator, the drinking water crisis in 

Flint highlights the need to address the Nation’s failing water infrastructure. We don’t have to go into the pain and suffering of that 

community, those little kids facing lives that are very problematic 

because of this failure of Government to provide them with safe 

drinking water. 

So I don’t know quite why your budget request is a net cut of 

$257 million for these State Revolving Loan Programs. So in light 

of those cuts, can you explain how EPA will ensure adequate investments in clean water and drinking water? 

Ms. MCCARTHY. Well, we are looking to supplement the State Revolving Fund with other specific investments, but you are right, it 

is—— 

Senator BOXER. What does that mean? What does that mean? 

Ms. MCCARTHY. Well, we are looking at investments that will go 

to support WIFIA. We are looking for investments that would go 

to support our financing strategy, where we are working with 

States. There is no question that we are sympathetic to the need 

for more State Revolving Fund moneys, and we will try to work 

with communities and States to make the most of this. 

But the challenge we have is that our operating budget is significantly limited and we have to look at presenting a budget that is 

reasonable and appropriate for the full range of responsibilities 

that the Agency has. 

Senator BOXER. Well, let me just say I am very sympathetic to 

your problems, but at the end of the day I would hope to see EPA 

fighting for a budget that meets the needs of the people. So, again, 

when we look back all those years ago, we are spending $2 billion 

more. 

Now, I know my colleagues probably on the other side of the 

aisle would not agree with me on this one, but I don’t get how we 

can be spending less than we did several years ago when we have 

aging infrastructure. And I agree it is wonderful to have this 

leveraging, the WIFIA program, but it shouldn’t replace the State 

Revolving Funds. 

It is upsetting because WIFIA was not meant to be a replacement, and I think my colleague and I would agree, to the State Revolving Funds. We want to have the State Revolving Funds be 

healthy and then have the leveraging ability of a WIFIA to come 

into play. 

So can you talk about the steps EPA has taken since the Flint 

crisis to avoid a repeat of this disaster? 

Ms. MCCARTHY. Certainly. Well, first of all, we are working very 

hard in the city of Flint to restore that water system appropriately. 

We have also written to every Governor in every primacy agency 

at the State level to make sure that they are looking at reviewing 

all of the data. 

They are looking at being transparent, notifying individuals and 

homeowners when they see lead increasing. We are looking at opportunities to bring together both people to look at what went 

26 

wrong in Flint. We are looking at our lead and copper rule to 

strengthen it, as well. 

So we are taking a number of steps and also would like to continue the dialog on infrastructure investments, where we recognize 

that we simply have aging infrastructure, well beyond the lead 

challenge, that needs to be addressed that is currently hard to envision how we are going to maintain safe drinking water not just 

for legacy problems like lead, but for some of the new contaminants 

we are seeing. 

Senator BOXER. Well, Administrator McCarthy, my time is up, 

but I do want to say this to you as we wind down our current jobs. 

I think it is the role of EPA to get ahead of these kinds of crises; 

not to whisper in the ears of the State, but to yell in the ears of 

the State when we know facts. 

Now, there is a lot we know about lead. We know what it does 

to children; we know what it goes to fetuses; we know what it does 

to sick people. We need to get out in front, not whisper in the ears 

of people, because the people don’t want to hear the bad news. 

So I am going to count on you and push you to do that. And if 

my colleagues yell at you, you can say it is my fault. But we need 

to get ahead of this stuff because the people are counting on us. 

All you have to do is look at the faces of those people there who 

are poisoned. That is murder by any other definition. That is a felony, because we know what lead does; it is not a great mystery. 

Ms. MCCARTHY. I would expect nothing less of you than to push 

us to do that. 

Senator BOXER. OK. 

Senator INHOFE. Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman, for convening this 

important budget oversight hearing today. The oversight function 

of this Committee is critical to ensuring taxpayer dollars are spent 

in a judicious and also an accountable manner. The EPA must be 

accountable to the American people. There isn’t a day that goes by 

that I don’t hear concerns from my constituents about the impacts 

of the EPA regulations on Nebraskans. 

For example, Nebraska’s public power utilities are grappling 

with how they could ever comply with the EPA’s carbon emission 

reduction mandates. The city of Omaha is struggling with the 

Agency’s expensive CSO mandate and drinking water affordability. 

Nebraska’s farmers are waiting on new crop technology products 

that are stuck in a broken regulatory process. Our ethanol producers are desperate for certainty under the RFS. 

Homebuilders, transportation stakeholders, and local government 

officials are concerned about the Federal Government expanding 

control over our State’s water resources. Communities and small 

business owners fear that the EPA’s ozone mandate will stunt potential economic development and growth. Families are concerned 

about the future of their livelihoods due to the EPA’s activist role, 

the consequences of which could lead to the elimination of entire 

industries. 

The EPA has an enormous impact on the American people. For 

this reason, it is important that this Agency be open, transparent, 

and take responsibility for its actions. Throughout this AdministraVerDate Aug 31 2005 09:52 Aug 24, 2016 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\21265.TXT VERN
27 

tion, we have witnessed the EPA’s misguided actions that have 

negatively impacted families all across this Nation. 

For example, in 2012, the EPA conducted aerial surveillance of 

feed yards in Nebraska. These properties are not only places of 

work, but they are homes where Nebraskans live and where they 

raise their children. The EPA also joined the Army Corps of Engineers to propose and finalize the very intrusive Waters of the U.S. 

rule, which threatens the economic security of countless Nebraska 

families. 

Moreover, a GAO report found that your agency broke the law 

by gathering public support for the misguided WOTUS rule 

through the use of social media. In another, more recent example, 

an EPA grant to the Northwest Indian Fisheries Commission was 

used to fund an anti-farmer advocacy campaign in Washington 

State. The billboard’s website, radio ads, and other social media associated with this campaign villainized farmers and ranchers, and 

I found this initiative, which was funded by your Agency, extremely troubling. 

As we conduct our discussion today, I would ask you to bear in 

mind that these Americans, both in Nebraska and across the Country, who work hard each and every day to protect our treasured environment and natural resources, are important. 

As I mentioned in my opening remarks, Administrator, recent 

revelations have come to light regarding how the What’s Upstream? campaign has been funded, and that was through an EPA 

grant. The financial assistance that your agency gave to fund this 

lobbying campaign is a blatant violation of Federal law. Even more 

disturbing is the revelation that a 2014 inspector general’s report 

found this EPA region had insufficient protections in place to ensure against using these funds for lobbying purposes. 

So I would ask you, at what point did your Agency become aware 

of the misuse of EPA funds for the What’s Upstream? Campaign 

and what role did EPA have in reviewing that billboard and 

website? 

Ms. MCCARTHY. Well, I cannot give you the exact date, but I can 

assure you that EPA also was distressed about the use of the 

money and the tone of that campaign, and we have put a halt to 

reimbursements of any funds under that. It is a subcontract and 

we have told our contractor that we need to have a full discussion 

and review before additional moneys are expended. And I do know 

that the most egregious tone was reflected on billboards. That will 

not be reimbursed through this fund. 

Senator FISCHER. Thank you. 

I would ask you, are you planning on putting protections in place 

in the Agency so that we can be sure that grant funds aren’t used 

in that manner in the future? 

Ms. MCCARTHY. I think we need to re-look at the details and the 

scope of our contract so that subcontractors that are then used not 

only meet the legal merits of what we have to do, but also reflect 

the tone and the interest of EPA in collaborating with agriculture 

on these issues. 

Senator FISCHER. Thank you. 

28 

Could you get information to my office about what policies and 

procedures that you are putting place that would prevent misuse 

in the future? 

Ms. MCCARTHY. Certainly. 

Senator FISCHER. Thank you. I know all of my colleagues join me 

in supporting agriculture, and especially our families who work 

hard every day to produce a safe, affordable, healthy product in 

order to feed the world. 

Thank you. 

Senator INHOFE. Thank you, Senator Fischer. 

Senator BARRASSO. 

Senator BARRASSO. Thank you, Mr. Chairman. 

There is an April 7th Wall Street Journal story, Toxic Spill Fears 

Haunt Southwest. This has to do with the spill about 6 months ago 

that the EPA crew accidentally caused where you unleashed waste 

at a gold mine, the spring snow melt, as it says, threatens to stir 

up pollutants. So the people in the area are concerned that as the 

snow melts and comes down. 

The article talks about a 46 year old oilfield worker about the 

contamination. It says, ‘‘The EPA hasn’t returned to conduct more 

tests, and now Mr. Dils and others are worried that lead and other 

toxic materials that settled in the river will be stirred up.’’ And just 

to remind folks, this is the one, you have seen the picture, the mustard orange colored river, 3 million gallons of toxic material that 

poured into that river. 

So he said they are worried that these toxic chemicals will be 

stirred up, contaminate the river again as the Animas swells with 

spring snow melt from the Rocky Mountains. So he says, ‘‘I’m nervous about the long-term effects.’’ Says, ‘‘It will be a matter of testing our well continuously, and we don’t have the money to do it.’’ 

So in your oral testimony before the Indian Affairs Committee 

specifically related to that toxic spill, you stated that the EPA 

water results, in your words, ‘‘indicated that water and sediment 

have returned to pre-event conditions.’’ This gives, I believe, an incomplete picture of the long-term impacts of this EPA-caused environmental disaster. Ppeople in the area are referring to the EPA 

and they are saying EPA stands for the Environmental Polluting 

Agency, the Environmental Poisoning Agency. 

As Senator Boxer just said, look at the faces of those who were 

poisoned. This is murder. This is Barbara Boxer’s quote about what 

happens when people are poisoned. She, a little earlier, said this 

is murder; and that’s the way people in the area feel about what 

has happened. 

Communities want to know if their families will be safe as a result of the disaster that the EPA has caused, and you said it will 

take responsibility for. They need money for testing, and what EPA 

has offered in terms of technical support and long-term monitoring 

isn’t nearly enough. 

So when the Indian Tribes impacted wanted a followup hearing 

to examine these issues specifically in that location, at first the 

EPA refused to even send a witness to testify in person. The hearing is going to be this Friday, Earth Day. Instead, the EPA offered 

only written testimony. 

29 

As a result, the Senate Indian Affairs Committee has had to 

issue a subpoena, something that the Indian Affairs Committee 

hasn’t had to do since the Jack Abramoff scandal. That puts you 

and the EPA in a very exclusive club, and it shouldn’t have happened. This was a bipartisan subpoena. 

We are holding this field hearing to do oversight into this catastrophe that the EPA has caused. So the Indian Affairs Committee, 

both Democrat and Republican Senators, have now given you and 

EPA, or EPA Assistant Administrator Stanislaus an opportunity to 

testify at the field hearing Friday in person. 

So my question is, this Friday, are you planning to go to New 

York for the signing of the Paris Climate Agreement, stay here, or 

will you take this opportunity to face the people, the Navajo Nation, other Tribes whose communities were poisoned, and commit 

to them, as well as all the affected communities of this spill, the 

people who were poisoned, that you will provide them with the 

testing and the funding they actually need to assure that their 

families will be safe? 

Ms. MCCARTHY. Well, Senator, there may be some confusion, but 

I was actually never invited to this hearing. Mathy Stanislaus was 

originally and Mathy Stanislaus will be attending. 

Senator BARRASSO. So you have been subpoenaed as a result of 

the EPA’s decision to send no one, so we named you and Mathy 

Stanislaus, either/or. So my question is does the buck stop with you 

or with Mr. Stanislaus? 

Ms. MCCARTHY. Mathy Stanislaus will be attending the meeting, 

and we did our best to communicate with your staff to let them 

know that we were happy to send somebody before the subpoena 

was issued. We failed to be able to have those calls and communications returned to us. 

Senator BARRASSO. I wanted to switch topics to the more than 

2,400 jobs that have been lost in the energy sector in Wyoming 

since January. They are good-paying jobs, benefits that provide for 

Wyoming families. You stated before the Environmental Council of 

the States, on April 13th of this year, that ‘‘I can’t find one single 

bit of evidence that we have destroyed an industry or significantly 

impacted jobs other than in a positive way.’’ That is your quote. 

I don’t know what you are talking about. I hear it every day back 

in my State, in Wyoming, heard it this weekend, how EPA regulations are destroying the coal industry. Your regulations are costing 

jobs. Are you going to tell the laid-off coal miners in Wyoming and 

West Virginia and Kentucky that you take no responsibility whatsoever for what is happening in coal country? 

Ms. MCCARTHY. Sir, I think our responsibility is to make sure 

that when the energy system is shifting, as it is in the market 

today, that we do everything we can to help those communities and 

those folks be able to cope with a shift in the economy and the energy system that we are seeing. And I am happy to have any of 

those conversations if I can be helpful. 

Senator BARRASSO. So based on your quote of April 13th, you are 

saying you are not responsible for even one job loss in coal industry. 

Ms. MCCARTHY. Sir, that is not what my quote said, but what 

I would indicate to you is I believe that the energy system has been 

30 

shifting since the 1980’s, and it is time that we work with those 

communities and individuals to make sure that everybody in the 

United States has an opportunity to live well. And there are challenges in those communities, without question, but the vast majority of that is related directly to the market shift, not to EPA regulation. 

Senator BARRASSO. Mr. Chairman, I will point out that 2,400 jobs 

have been lost in the energy sector in Wyoming since January, and 

I believe it is directly a result of the EPA actions. Thank you, Mr. 

Chairman. 

Senator INHOFE. Thank you, Senator Barrasso. 

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

And thank you, Administrator McCarthy, for everything that you 

do for our Country. Thank you for the Clean Power Plan which you 

have put together. It is a very important part of the solution to the 

intensification of the warming of the planet, and I think it really 

helps the United States be a credible leader in working on these 

issues. 

Two thousand 15 was the warmest year on record. 2016 is off to 

a start that could break last year’s record. In fact, 15 of the 16 hottest years on record have occurred since 2001. Only 1998 rivals the 

temperature seen in the 21st century, so we have to act now. 

A recent report by Environment America shows that each year 

renewable energy could power our Country 100 times over. We are 

making strides in smart grid and storage technologies. The question is no longer if we can provide power for the Country with renewable energy, it is when and how we make the transition to 100 

percent renewable. I don’t think there is any question that by 2100 

we will be there. The technology will just make it possible, along 

with the capacity of the grid to be able to manage those technologies. 

But, nonetheless, I know that there are still those that believe 

that you are the principal person responsible for this shift in the 

energy generation in our Country and the sources that create it. 

We know that natural gas, because of fracking, has just become a 

plentiful supply of alternative means of generating electricity in 

our Country, and we know that it has half of the greenhouse gases 

that coal does, and we also know that it is very competitive, if not 

less expensive than coal. 

So that is just the reality in the free market, Darwinian-Adam 

Smith free market. And the same thing is true for 30 States deciding that they want to have renewable electricity standards. That is 

just 30 States deciding that they want to do that. And I don’t think 

we want to get into the way of individual States making a decision 

as to what their mix of generation should be across all sources. 

But I would also note again, and I think it is important to have 

this very, very clear, in 2009 the House, in the Waxman-Markey 

bill, actually provided $200 billion for carbon capture and sequestration for the coal industry, for the electrical generation industry 

in its use of coal; and that $200 billion was in that legislation in 

order to create a bridge for the coal industry. Now, Peabody Coal, 

amongst other coal companies, said that they did not want the bill; 

they did not want that money, which is their choice. 

31 

But as a result, that $200 billion is not available right now, 

which it would have otherwise been. And I think that could have 

played a large role in ensuring that the coal industry had a bridge 

to the future, because with carbon capture and sequestration it 

would have dramatically reduced the amount of greenhouse gases 

down to levels which would have been compatible with the goals 

the Country has for the reduction in greenhouse gases over the 

next 20 or 30 years. 

We also had money in to help communities respond to the changing energy landscape. We built that in as well for the communities. 

So I just want to make that very, very clear. That legislation was 

intended to actually help the industry with the transition that was 

already going on, and to make sure that it would deal with that 

source of fuel in a way that could have made it compatible. 

So can you talk a little bit, as well, about how the Clean Power 

Plan creates flexibilities for each one of the States to be able to 

deal with the reduction in greenhouse gases, which is going to be 

required? 

Ms. MCCARTHY. Well, Senator, the Clean Power Plan is enormously flexible in terms of allowing States to determine their own 

energy mix, as well as to work with other States to identify the 

best path forward that will not only achieve the greenhouse gas reduction targets, but also look at how we can strengthen the economy of every State moving forward. 

I agree with what you said, but one of the other pieces that I 

would add is that solar and wind now is so cost-competitive, and 

that is where job growth is being seen. So there is a need to address the challenges in these coal communities, but there is also an 

opportunity here for lowering energy costs while we maintain a 

sound and reliable energy system. 

Senator MARKEY. Thank you so much for your great work. Thank 

you. 

Senator INHOFE. Thank you, Senator Markey. 

Senator ROUNDS. 

Senator ROUNDS. Thank you, Mr. Chairman. 

Good morning, Administrator. 

Ms. MCCARTHY. Good morning. 

Senator ROUNDS. Last week a subcommittee of this Committee 

on Superfund, Waste Management, and Regulatory Oversight, a 

committee that I chair and Senator Markey sits as the ranking 

member, hosted a hearing on small business impacts from EPA 

regulations, and we received testimony regarding a number of instances where the EPA has disagreed with the Office of Advocacies 

out of the SBA, but the Office of Advocacy’s recommendations on 

particular rulemaking. 

Our witnesses testified that there is no mechanism in the law 

that reconciles these differences between the EPA’s decisionmaking 

process and the Office of Advocacy’s opinions. Can you please share 

how you view the Office of Advocacy’s recommendations and how 

seriously you consider these recommendations throughout the rulemaking process? 

Really what I am curious about is it doesn’t appear that there 

is any way to reconcile the difference when, as in this particular 

case, the one that we were working on was WOTUS, where the OfVerDate Aug 31 2005 09:52 Aug 24, 2016 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\21265.TXT VERN
32 

fice of Advocacy actually came out and said they disagreed with implementing it; and yet it moved forward. 

Can you share with us the role that it plays, the reactions that 

you have and how it is considered, how their position is considered 

in your decisionmaking process? 

Ms. MCCARTHY. Well, we certainly work with the Small Business 

Administration to comply with the law, which is that we need to 

consult with them in a panel that is established to look at the rule 

to provide us advice on how we can both identify and respond to 

significant challenges that small businesses might face. And I 

think we have actually a very good record of being able to have a 

robust process that informs our decisionmaking early on in the 

rules so that we can propose rules that are more sensitive to the 

needs of small businesses and finalize those rules. 

Now, there are differences between the work we do with the 

Small Business Administration to comply with all of the OMB rules 

and requirements and what the Small Business Advocacy Office 

might understand and move forward in terms of their concerns, but 

we try to resolve them; and I can certainly show you where their 

input has provided us tremendous opportunity to get at the reductions we are supposed to achieve, but to do it in a way that is much 

more sensitive of the unique challenges that small businesses face. 

Senator ROUNDS. Administrator, I think that would be helpful 

because in this particular case, with WOTUS, their recommendation was do not implement it; and yet the process moved forward 

with the implementation. As we all know, it has now been stayed, 

and yet it appears as though they were straightforward in their 

recommendations. If there is evidence that there was a reasoning 

or a discussion that continued on, that would be very helpful to 

this Committee to be able to see that; and if you could provide that 

it would be helpful. Is that available? 

Ms. MCCARTHY. I certainly know that we had meetings to discuss the implications on small business. I was briefed on those discussions, and I would be happy to provide you a summary of those 

or see what else I might be able to provide you to indicate that we 

did listen to those inputs. 

You know, the Clean Water Rule is a little bit different than an 

implementation rule; it is really looking at how you structure the 

jurisdictional questions around what streams and rivers require 

protection under the Clean Water Rule and how we manage those. 

And, frankly, how we did the Clean Water Rule was to try to be 

very clear in terms of trying to reduce sort of the process of identifying those jurisdictional answers, as well as how you would mitigate the challenges moving forward. 

Senator ROUNDS. And I think that is one of the reasons why they 

had recommended that it not be implemented, was the frustrations 

that they had looked at as an outside group. I am wondering if it 

isn’t time to perhaps have a third party as an arbiter when it 

comes to these types of problems, where you have two Federal 

agencies, one in which you want to implement a rule and one in 

which you have another Federal agency which says clearly this is 

damaging to small business. 

Is it time to start talking about a third-party arbitration process 

within the Federal agencies themselves? 

33 

Ms. MCCARTHY. I think there is a panel process that we are required to go through in many instances, but in this case, Senator, 

this wasn’t the sort of something that EPA just decided on our own 

to do; the Supreme Court told us two times that the current guidance and rules were not sufficient, that we needed to do science 

and we needed to come back. 

And when we did come back and we suggested maybe a guidance 

was the thing to do, we were told by many in Congress, as well as 

stakeholders, no guidance; do rules, we want a public process. And 

that is what we did. And we will see whether this rule stands up 

when it is held to court scrutiny. But I am very confident that we 

did the work we should do and that it will prevail. 

Senator ROUNDS. Mr. Chairman, thank you. 

Administrator McCarthy, thank you. 

Ms. MCCARTHY. Thank you, Senator. 

Senator INHOFE. Thank you, Senator Rounds. 

Senator WHITEHOUSE. 

Senator WHITEHOUSE. Thank you, Chairman. 

Welcome, Administrator McCarthy. 

Ms. MCCARTHY. Senator, how are you? 

Senator WHITEHOUSE. First of all, just for the record, I do believe 

that it has been reported in a variety of forums that the war on 

coal was actually waged and won by the natural gas industry, including a recent story by that famously liberal publication, the 

Wall Street Journal. So I will ask unanimous consent to have that 

Wall Street Journal story put into the record. 

This past week, in Rhode Island, in addition to the national New 

York Times front page story on the dying out and bleaching, which 

is more or less the same thing, of the Great Barrier Reef, the Providence Journal ran a front page story headlined Drowning Marshes. 

Our seaside marshes are not keeping up with the pace of sea level 

rise. The newspaper also did a big story on the historic buildings 

in and around Newport and the number of them that are vulnerable to our current State projections of sea level rise, which actually numbers 550 historic or historic designation-eligible buildings 

worth close to half a billion dollars. 

Unless somebody around here wants to repeal the law of thermal 

expansion, then we are going to have to really address this problem, and it is going to hit my ocean State very, very hard. These 

are facts that my State lives with every day, so don’t let up; keep 

doing what you are doing. We understand. Clearly, there are several dimensions to the political fight that you are caught in the 

middle of. 

One is, unfortunately, Republican versus Democrat. It didn’t use 

to be that way; this used to be a Committee where Republicans and 

Democrats worked together on environmental issues. But at least 

for now those days appear to be past. It is also a little bit of the 

past versus the future; and the future is inevitable, but the past 

is often reluctant to give up its incumbency. 

But it is also geographic. And as you heard from Senator 

Barrasso, he has some very legitimate concerns about what is happening in Wyoming. Rhode Island also has very legitimate concerns; they just happen to be the opposite side. The more that WyoVerDate Aug 31 2005 09:52 Aug 24, 2016 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\21265.TXT VERN
34 

ming coal pollutes, the more that we experience these changes in 

Rhode Island. 

The third story in the Providence Journal related to a big session 

that they had and they brought in people to talk about our fisheries. Rhode Island’s fisheries are in a State of upheaval because 

of the warming temperatures of the sea. We know that 90 percent 

of the excess heat from climate change from the warming planet 

has gone into the oceans. 

This is something that we measure with thermometers, so unless 

people want to be not against science, but against measurement, 

they are going to have a real problem with this data. It is not complicated to take these measures, and fishermen are telling me, 

Sheldon, things are getting weird out there. They are getting fish 

like tarpon and grouper in their nets in Rhode Island Sound. 

Joe Manchin and I have exchanged visits to each other’s States 

so I could understand the problems of coal country and he could 

understand the problems of ocean country, if that is a phrase. And 

we went out on a fishing boat and the captain said, you know, this 

isn’t my grandfather’s ocean; I grew up fishing and I don’t know 

what is going on out there any longer. And that creates real peril 

for our fishing industry. So don’t forget the Rhode Islands of the 

world when you are taking heat from the folks who are on the side, 

I would say here, of the past. 

And I would urge my colleagues, you know, we met at Senator 

Markey’s request with a delegation that included a gentleman from 

the Mexican Parliament. They have just accepted an auction for 3.5 

cent per kilowatt hour wind power or solar. I forgot which. But it 

was a clean power source. Three point five cents. It is really hard 

to compete with that. 

And the day is going to come, those prices are going down, when 

this adjustment has to happen; and there are two ways we can 

make it happen. It can be a managed transition in which the harm 

from the transition, the upheaval from the transition is dealt with 

in a responsible way, or it can be an abrupt transition. And I would 

suggest that what we have seen with Peabody Coal and with some 

of these other companies show that when the industry focuses on 

just truculent, grit your teeth and wait until the better end, the abrupt transition is very, very unpleasant. 

So my time is up. Keep doing what you are doing. And I urge 

my colleagues to please work with us. There is a way to make this 

transition much more manageable for the genuine economic concerns that they face in their States, but it is not fair to come here 

and talk about the economic concerns that they face in their States 

and then completely ignore the changes that are happening in my 

State. Thank you. 

Senator INHOFE. Thank you, Senator Whitehouse. 

Senator WICKER. 

Senator WICKER. Administrator McCarthy, thank you very much 

for coming to see us again. 

I want to ask about radon. The State Indoor Grant is one of a 

number of programs the President proposes to eliminate in his 

budget. On the other hand, the President’s budget requests $235 

million in climate-related funding, the centerpiece of which is the 

Clean Power Plan, of course. 

35 

The Clean Power Plan, according to your figures, will avoid 6,600 

premature deaths by the year 2030. On the other hand, by your 

own analysis, radon causes an estimated 21,000 lung cancer deaths 

each year. Do I have those figures right, at least, Administrator? 

Ms. MCCARTHY. Well, I don’t have that exact figure, but the figures that we provide for 2030 are annual figures. Every year that 

is a reduction. 

Senator WICKER. OK. So what you are saying is that the Clean 

Power Plan will avoid 6,600 premature deaths per year. 

Ms. MCCARTHY. Yes. 

Senator WICKER. OK. And by contrast, radon causes an estimated 21,000 lung cancer deaths annually in the U.S. It just seems 

to me that you are not being cost-efficient there. The core mission 

of the EPA is to protect human health and environment. Given 

these numbers, it seems to me that taking the money away from 

known threats such as indoor radon is inefficient, in that there are 

some 21,000 lung cancer deaths attributed to radon each year. 

Ms. MCCARTHY. Well, let me just respond to that. If I thought $8.1 million in State grants would actually reduce 21,000 lives and 

save those, I would. Really, the question is whether or not that 

$8.1 million to States is the right way to address the risk that is 

apparent. And we have developed a separate strategy that we 

think is more efficient that doesn’t require State grants to be done, 

and we have not found that State grants are the most appropriate 

and efficient way to address that risk. 

What you are comparing is known reductions that we believe will 

happen versus the entire risk to radon. 

Senator WICKER. You are saying the State indoor radon grant 

program is an ineffective program? 

Ms. MCCARTHY. I am saying that there are more effective ways 

to use our resources, and we are trying to do that. That is how we 

have framed this budget. 

It is not that we don’t like the grants, but you have to—— 

Senator WICKER. So what is the name of the program, then, that 

you are advancing and advocating today to supplant the State indoor radon grant? 

Ms. MCCARTHY. We have our indoor air program, and part of 

their charge is to address radon, and we are doing that in two different ways. We have a Federal plan that is looking across the 

board at how we do this using Federal resources from agencies that 

are essentially landlords, and we are also marrying that effort with 

individual States and NGO’s and innovators who have technology 

options to actually reduce radon in the home and how we spread 

that word more effectively. 

Senator WICKER. OK, well, we will discuss that more in depth 

with some questions for the record. 

Ms. McCarthy, the Clean Power Plan has been stayed by the Supreme Court. You have said it doesn’t prevent EPA from continuing 

to work on the rule. Now, last month you testified before the House 

Energy and Commerce Committee with regard to the stay. 

Ms. MCCARTHY. Yes. 

Senator WICKER. So we certainly won’t do anything that implements or enforces the rule, consistent with the Supreme Court 

stay. What work is your agency continuing to do with regard to the 

36 

Clean Power Plan? Have you requested any legal analysis to ensure that you have the legal authority to carry out this work? And 

if you have requested such a legal analysis and received one, can 

you provide that analysis to this Committee? 

Ms. MCCARTHY. Well, I can certainly tell you that I have worked 

with our Office of General Council, who is working very closely 

with the Department of Justice to make sure that we totally respect the decision of the Supreme Court, as we always would. We 

are continuing to attend meetings that the States request of us. We 

are continuing to work with States that, on a volunteer basis, want 

to actually continue to move forward in the development of their 

State plans; and we are continuing to look at the tools available to 

the agency to support that effort. For example, the States want us 

to develop an accounting system that would help them to account 

for their greenhouse gas emissions. 

Senator WICKER. But in the short time we have, with regard to 

a legal analysis, you have been working with your inside counsel 

and with the Justice Department. 

Ms. MCCARTHY. Correct. Yes. 

Senator WICKER. Have they provided you with written analyses 

about whether you can go forward and what you can do and what 

you can’t do? 

Ms. MCCARTHY. I have certainly had many discussions with my 

Office of General Counsel, who has told me what everybody believes is the consensus of what we should and shouldn’t be doing. 

It is very clear to me—— 

Senator WICKER. Is there anything in writing? You see what I 

am getting at, though. I am just trying to get a specific answer so 

I can know if you can provide this Committee with copies of this 

written advice. So you have mentioned oral advice. 

Ms. MCCARTHY. Yes. I did not see anything in writing. 

Senator WICKER. But do you have anything in writing? 

Ms. MCCARTHY. I have not seen it provided to me, but I can go 

back and see if there is written discussion of this. But clearly we 

are doing everything possible to consult with our attorneys and 

make sure we are being very respectful. But I am doing nothing 

that implements or enforces this rule, consistent the Supreme 

Court’s decision. 

Senator WICKER. If you have anything in writing, I would appreciate it if you would submit it to this Committee. 

Ms. MCCARTHY. Thank you, sir. 

Senator INHOFE. Thank you, Senator Wicker. 

Senator Cardin? 

Senator CARDIN. Thank you, Mr. Chairman. 

Administrator McCarthy, I very much respect what you are 

doing and thank you very much for your service. We have worked 

together on many issues and I very much support your leadership 

at EPA. 

Having said that, last year I raised an issue at the budget hearing and I thought we were going to do better this year, and it looks 

like we haven’t done any better this year. So perhaps you can try 

to clarify for me the budget as it relates to water infrastructure in 

this Country. 

37 

Your own department has estimated a need of $655 billion over 

the next 20 years in regards to clean water and save drinking 

water. Since we last met, we have had the tragedy of Flint, and 

Flint is not an isolated circumstance. What they did I hope is isolated, that is, not actively responding to minimize the risk of lead 

in drinking water, but we know that there is a lot of lead in pipes 

that lead into people’s homes; we know that there is corrosion 

issues; we know that there is old, inefficient water systems in regards to safe drinking water; and we know that the clean water infrastructure is in bad need of repair, to the tune of, as I said, $655 

billion, your own estimates, over the next 20 years. 

So I am perplexed as to why, in regard to the State Drinking 

Water State Revolving Fund, the President’s budget is less this 

year requested than what the President requested last year in his 

budget. And then when you go to the Clean Water State Revolving 

Fund, the amount the President requested is substantially less 

than the amount appropriated in last year’s budget, to the tune of 

about $413 million. That does not seem like a commitment to modernize our water infrastructure. Do you have a better explanation 

this year? 

Ms. MCCARTHY. There are obviously constraints that we have. 

One is we have to respect the levels that were established in the 

bipartisan budget agreement, and our choice was how do we use 

the money that is allocated to us in the best way that we can. 

There is no question that we have to have a larger conversation 

about how we fund infrastructure. I think Flint has made that very 

clear to everybody. But I don’t think that that is something that 

we can identify as a way to fully resolve within the budget constraints of EPA. 

Senator CARDIN. I very much appreciate the struggle with the 

budget caps and the omnibus limits. I very much appreciate that. 

And I do want you to adhere to those limits because that is our 

agreement for this budget year, and we are all going to work to adhere to the agreement that has been reached. 

But there are creative ways that you can help us find ways to 

improve our water infrastructure. The last one we did the WIFIA 

funds. There are different tax incentives that you can be talking 

about. There are different challenges we have in dealing with the 

last connection between the drinking water supplies and a person’s 

home. 

It seems to me that, recognizing the risk factor that we have 

today, we need your advocacy for stronger water infrastructure in 

America. 

Ms. MCCARTHY. Well, I will do my best to be able to provide my 

voice to that. I will tell you I think there has been no worse issue 

that I have faced in my almost 36 years now than Flint, Michigan. 

It was devastating to the individuals there. 

And if there is anything that we can do as a Country to recognize 

the challenges we face, because in Flint it is not only the lead 

issue; it is the fact that it has half of the population it had in the 

1970’s and it now has a big system that they haven’t invested in 

in decades. So it is enormously challenging. 

And from that perspective it is not different than many other 

urban areas that have lost significant populations and simply don’t 

38 

have a way of continuing to make those investments moving forward. And you are absolutely right, it becomes a responsibility of 

EPA to identify those challenges and to speak as loudly as we can 

about them, and I will do the best I can with the time I have remaining. 

Senator CARDIN. I appreciate that. I point out, as you just said, 

it is not just Flint. The systems in my State date back 100 years, 

and the ratepayers just cannot do everything that is required in 

order to replace pipes that are in some cases 100 years old. In Baltimore City, our public schools, the drinking water supplies 

through the fountains have been terminated because it is not safe 

because of lead. So we have a national problem and we need national leadership. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Cardin. 

Senator SULLIVAN. Senator SULLIVAN. Thank you, Mr. Chairman. 

As I have been saying in the Committee, it is not just aging infrastructure, it is lack of infrastructure. There are entire communities in my State that don’t have clean water or flush toilets; they 

live in Third World conditions, and we certainly would want your 

help there, Administrator McCarthy. 

I wanted to raise a concern that I have raised on this Committee 

with you a lot, and it is the concern about we certainly all want 

clean air, clean water. My home town of Anchorage won another 

award for best practices recently on clean water. 

But the concern about the law and your agency not abiding by 

the law, you know, since you last appeared here, two courts have 

placed injunctions on your two signature regulatory issues, the Waters of the U.S. and the Clean Power Plan. These are really important issues to us in terms of oversight. 

Many of us asked for the legal justification on WOTUS. You were 

reluctant to provide it. Now I understand why. Have you read the 

6th Circuit opinion that has put a stay on the Waters of the U.S. 

ruling? 

Ms. MCCARTHY. I am certainly aware of it. 

Senator SULLIVAN. Do you know what they said? 

Ms. MCCARTHY. Yes. 

Senator SULLIVAN. What did they say? 

Ms. MCCARTHY. Well, basically they said that they wanted to 

make sure that they looked at the underpinnings of the rule from 

both a science perspective, as well as a legal perspective, and indicated that the rule shouldn’t continue to move forward until they 

were done. 

Senator SULLIVAN. They were also concerned and favorably disposed to the petitioner’s argument that you were expanding your 

jurisdiction under the Clean Water Act, which is only the realm of 

Congress. Only we can do that; the EPA can’t do this. 

Ms. MCCARTHY. And that is why we are looking forward to—— 

Senator SULLIVAN. So that is a big deal. But let me go. There is 

another much bigger that I don’t think is getting nearly the attention, it is the injunction by the U.S. Supreme Court for the Clean 

Power Plan. You glossed over it in your testimony, but this is a 

really big deal. 

39 

Let me ask you, Administrator McCarthy, how many times do 

you think the Supreme Court has done this in its history, has put 

an injunction on a Federal regulation before a lower court weighed 

in on its merits? How many times in the history of the Supreme 

Court has that happened? 

Ms. MCCARTHY. I am not aware of any. 

Senator SULLIVAN. I can tell you. Never before it happened to 

you. So this is an unprecedented action and, again, it goes to this 

issue of the rule of law. So have you thought about why they did 

that? Have you read that ruling? 

Ms. MCCARTHY. Well, it was fairly short. 

Senator SULLIVAN. It was short, but has your team thought 

about why the Supreme Court, first time in U.S. history, took this 

kind of unprecedented action? It is a big, big deal. Why do you 

think they did it? Let me just ask you a couple reasons why they 

may have done it. 

Your recent record in the Supreme Court, utility air regulators, 

where Justice Scalia said you had violated the separation of powers; the EPA v. Michigan; the WOTUS ruling. Do you think that 

those may have impacted the Supreme Court’s ruling? 

Ms. MCCARTHY. Sir, the Supreme Court gave no indication that 

they we relooking at the merits on this issue when they—— 

Senator SULLIVAN. No, but I am asking you guys to reflect on 

why. 

Ms. MCCARTHY. It would be way more presumptuous of me to indicate what I think the Supreme Court was thinking. 

Senator SULLIVAN. When Laurence Tribe was arguing against 

the rule, he stated, and Laurence Tribe is not some kind of Republican partisan, ‘‘Burning the Constitution should not become part 

of our national energy policy. The EPA, with this rule, is attempting an unconstitutional trifecta: usurping the prerogatives of the 

States, Congress, and the Federal courts all at once.’’ 

Do you think the Supreme Court may have been thinking about 

Laurence Tribe’s arguments? 

Ms. MCCARTHY. Sir, I know the Supreme Court did their job. We 

will do our job on the merits, and I am very confident of this rule 

not just being constitutional, but being legally solid all around. 

Senator SULLIVAN. Do you think they may have been thinking 

about job losses that have occurred because of EPA regulatory 

issues? 

Ms. MCCARTHY. Sir, I can’t say what the Supreme Court was 

thinking. They made their decision and I respect it. 

Senator SULLIVAN. Let me ask one other issue, Administrator 

McCarthy, on why the Supreme Court may have done that, and I 

think it relates to your views on some of these regulatory issues. 

You were quoted, on the eve of the EPA v. Michigan case, when 

they asked if you thought they were going to rule in your favor, you 

said yes. They didn’t. But then you said, ‘‘Even if we don’t win, it 

was 3 years ago that we issued the rule. Most of them,’’ meaning 

companies in America, ‘‘are already in compliance, investments,’’ 

hundreds of millions, ‘‘have been made and we’ll catch up. We’re 

still going to get at these issues from these facilities.’’ 

So, in essence, you publicly were stating even if we lose on the 

rule, we win. 

40 

Ms. MCCARTHY. No, sir, that wasn’t what I—— 

Senator SULLIVAN. That statement has been played around the 

Country. Many, many Americans are upset by it. Do you understand how that exudes arrogance and a disrespect for the rule of 

law when your agency is essentially saying we don’t even care how 

the courts rule? And do you think the Supreme Court may have 

taken this unprecedented action because of your statement that 

you made on this issue? 

Ms. MCCARTHY. Well, I would find it—well, I won’t even—— 

Senator SULLIVAN. Do you regret making that statement? 

Ms. MCCARTHY. No, not at all, because I wasn’t indicating what 

you just said. The Supreme Court actually didn’t negate the rule; 

they remanded it back because they thought we needed to do a job 

earlier on in the process on cost, which we have just completed. I 

think we got nine comments on that. 

And we know that we are past now the 4-year window for full 

compliance on that rule. I am proud of it. I love the lives that we 

are saving as a result of that rule. And the industry has been able 

to manage their way through it brilliantly. 

Senator SULLIVAN. Mr. Chairman, I have some more questions, 

and I would ask, once everybody is done, I would like, if it is possible, to stay. We do this in every other committee. I don’t know 

why this would be a problem. 

Senator INHOFE. Well, this is not every other committee. What 

I will do, we will certainly, if Senator Boxer wants to have an additional 3 minutes or something like that, I could yield mine to you. 

But that is about as far as we could go. Thank you. 

Senator SULLIVAN. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you. 

Senator CARPER. Senator CARPER. Thanks. I want to just note with some irony 

that the job approval rating of the U.S. Senate, both sides of the 

aisle, pales by comparison to the voter approval of the EPA, and 

your stewardship with respect to clean air and clean water. 

I would also say lovingly to my colleagues on the other side that 

we sure could use a nice Supreme Court Justice. I think the President has given us a pretty nominee, and I would urge you to spend 

some time with him. 

When I left the hearing earlier this morning to go a roundtable 

with the Committee on Homeland Security, Senator Inhofe was 

saying that he wanted to start off the hearing on a positive note, 

and he conveyed his gratitude to you and to EPA with respect to 

an issue that has been contentious on this Committee, and I just 

want to second that emotion from you. I know it is not easy for 

you; it is not easy for us. But thank you very much for your work 

there. 

I want to talk about another issue that we have worked on together on this Committee, Senator Inhofe and myself, Senator 

Boxer, and a new colleague from West Virginia now have authored 

legislation reauthorization for DERA, Diesel Emission Reduction 

Act. Diesel legislation is close to my heart. The original author of 

that was George Voinovich, as you will recall. I understand from 

the President’s budget proposal that his budget shifts funding away 

from DERA and instead funds clean diesel programs through atVerDate Aug 31 2005 09:52 Aug 24, 2016 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\21265.TXT VERN
41 

tacks on oil producers separate from the EPA budget. Is that correct? 

Ms. MCCARTHY. It actually relies on a separate mandatory fund. But we have $10 million allocated on our Fiscal Year 2017 budget. 

I think you and I share a love for the DERA program, and certainly 

for all of the great reductions in emissions that has resulted from 

it in the past. 

Senator CARPER. Thank you. Can you just explain the reason for 

this shift in funding? And if the Administration is not able to convince those of us in the legislative branch to implement this tax on 

oil, how important is the current funding mechanism for the DERA 

program? 

Ms. MCCARTHY. Well, we know that diesel emissions are particularly difficult to manage and we know that we are supporting, beyond the diesel campaign and the DERA money, opportunities to 

look at areas like ports and others that are so important to address. 

So I think the idea was that we would provide a more stable 

mandatory basis for supporting programs that were like the DERA 

program that showed consistent success. It is an opportunity to 

look over a 10-year horizon to implement or to effectively get $300 

million dedicated to this, and it was the choice of the President to 

move in this direction and to support DERA in a considerable way. 

Senator CARPER. All right, thank you. 

Changing back to the Clean Power Plan, if I could, it is my understanding that the budget request from the Administration includes $25 million to the States through a grant program to implement the Clean Power Plan. Is that correct? 

Ms. MCCARTHY. That is correct. 

Senator CARPER. Do you believe that the States will use this 

money to provide better flexibility and certainty to utilities within 

their States when implementing the rule? 

Ms. MCCARTHY. I think they will fully utilize it, yes. 

Senator CARPER. OK. Do you believe that cutting these funds will 

derail the Clean Power Plan? 

Ms. MCCARTHY. No, sir, but I think it will slow down the ability 

of States to hit the ground running. 

Senator CARPER. And who would it hurt the most if we were to 

cut these funds? 

Ms. MCCARTHY. The States. 

Senator CARPER. All right. Earlier, one of my colleagues was 

talking to you about Waters of the U.S. We spend a fair amount 

of time in our State, and I know my colleagues have in their 

States, meeting with different folks, could be developers, could be 

farmers, a lot of different folks who represent different environmental views. 

But my understanding is that one of the reasons why you have 

promulgated this is because for years we heard that there is not 

enough certainty and predictability for folks who are farming, for 

folks that want to develop or build communities or housing 

projects; there is not enough certainty for them to know what to 

do, and they have been asking for some certainty and predictability. My understanding is that you have tried to provide that. 

Would you just respond to that thought? 

42 

Ms. MCCARTHY. We did. We actually were required to do this by 

the Supreme Court. But we also knew that there was a level of uncertainty that was causing a lot of backup in the process for decisions to get made, for people to have certainty about what was in 

and what wasn’t, and what the mitigation strategy would be. We 

spent a considerable amount of time working to make sure that we 

were following the science to say what is in, what is out, and where 

case-by-case review is necessary. 

We also provided significantly more clarity for the agriculture 

community on the exemptions and exclusions. We didn’t take any 

away; we actually added some into the system so that agriculture 

would be able to perform their vital role for all of us in a way that 

would allow them to be sure that they are not running afoul of any 

rule or regulation. 

Senator CARPER. All right. Thanks so much. 

Senator INHOFE. Senator Vitter. 

Senator VITTER. Thank you, Mr. Chair. 

Thank you both for being here. Mr. Bloom, our apologies for not 

directing any questions to you. I know you are all upset and frustrated by that. 

[Laughter.] 

Senator VITTER. But like the others, I am going to direct my 

questions to Ms. McCarthy. 

I want to build on some previous comments and questions, 

Madam Administrator, about the Small Business Regulatory Flexibility Act. I am Chair of Small Business. This has been a real concern of a lot of members, including Democrats, and I heard your 

response to Senator Rounds a few minutes ago that you take it 

very seriously. 

In the case of WOTUS, which is a big deal by anyone’s estimation, the EPA said it has no significant impact on small business. Do you really stand by that and do you really think that 

backs up your statement that you take this mandate to mitigate 

impacts on small business seriously? 

Ms. MCCARTHY. Well, sir, when we were looking at the Clean 

Water Rule, we consulted with OMB. The decision was that we 

were not required to formally do a panel, SBREFA panel, but we 

did commit to having significant conversations and that is how 

we—— 

Senator VITTER. I don’t mean to interrupt you, but that means 

that you determined the WOTUS rule had no major impact on 

small business. 

Ms. MCCARTHY. Because it was a jurisdictional rule instead of an 

implementation rule. 

Senator VITTER. You stand by that? 

Ms. MCCARTHY. Certainly. I stand by the fact that we did the 

outreach to small business the way we should. 

Senator VITTER. And you think reaching that conclusion is evidence of your taking the small business impact issue seriously? 

Ms. MCCARTHY. I think the evidence of our taking it seriously 

was we went above the beyond the requirements under the law to 

reach out to small businesses and get their input. 

Senator VITTER. Just for the record, I completely disagree. I don’t 

think you met your requirements. 

43 

Ms. MCCARTHY. OK, Senator. 

Senator VITTER. More recently, EPA submitted its proposed rule 

regulating methane emissions for new oil and natural gas infrastructure to the White House. You submitted that to the White 

House for review before the small entity representatives on the 

panel submitted any comments to the EPA. Do you think that evidences your taking this small business impact issue seriously? 

Ms. MCCARTHY. I am sorry, Senator, I don’t know the exact timing on that, but often there are overlaps. But, as you know, we 

make adjustments through the interagency process so that those 

efforts are completed before any proposal is out for public comment. 

Senator VITTER. Well, I do know the timing, and I am telling you 

you submitted it to the White House for review before getting any 

small business input. Now, I know you can always come back and 

change things, but normally, you have a draft, once you are giving 

it to the White House, that is basically it. Once again, to me, this 

is a red flag that you all aren’t taking the small business impact 

issue the least bit seriously. 

Let me move on to a second issue, which is Flint; and we have 

talked about that. 

Ms. MCCARTHY. Yes. 

Senator VITTER. I think it is very clear to all of us that there 

were multiple failures of government at multiple levels with regard 

to this issue, and it is now well established that that, unfortunately, includes EPA, that EPA knew of the crisis well before national media attention, but seemed to fail to act on the issue and 

notify Flint residents. 

Because of this, Senators Inhofe, Cornyn, and I wrote to you with 

some specific questions on February 4th. It is now two and a half 

months later; we have no response. When are we going to see a detailed written response? 

Ms. MCCARTHY. I apologize for interrupting. You are going to get 

it momentarily. I am sorry, within the next day or two. 

Senator VITTER. OK, so we will look for that within the next 2 

days. Again, we sent this February 4th. 

Ms. MCCARTHY. Right, sir. 

Senator VITTER. Detailed questions, and we look forward to a 

substantive, specific detailed response. 

Ms. MCCARTHY. We will do the best we can. 

Senator VITTER. Ozone regulation. 

Ms. MCCARTHY. Yes. 

Senator VITTER. You recently claimed at a conference that you 

‘‘can’t find one single bit of evidence that the EPA has destroyed 

an industry or significantly impacted jobs other than in a positive 

way.’’ Do you stand by that statement? 

Ms. MCCARTHY. Yes, sir. 

Senator VITTER. OK. Well, I just want to point out, related to 

ozone regulation, I can tell you from Louisiana there were four 

major chemical manufacturing projects under active consideration 

for Baton Rouge. That was public, specific projects. 

After EPA first proposed lowering the ozone standard in December 2014, those were canceled. Since that has been finalized, that 

cancellation is definitive. Just those projects, one metro area that 

happens to be in my State, totaled 2,000 direct and indirect jobs. 

44 

New payroll would have been over $86 million. Is that a negative 

impact? 

Ms. MCCARTHY. Well, sir, the jobs that you are talking about are 

essential for everybody to continue to grow, so I am happy to look 

at that issue, but very often companies make decisions on the basis 

of their larger economic benefits and costs, and very often they will 

point to an EPA rule to justify that decision when there are many 

other issues going on that actually account for that decision more 

directly. 

Senator VITTER. Well, I can tell you in the case of Greater Baton 

Route, ozone is a huge issue because it pushes the whole area into 

non-compliance. It is absolutely categorically canceling projects, including the four I mentioned, and that is over 2,000 jobs. So, you 

know, when you make the statement that you see no evidence anywhere that anything EPA has done has hurt jobs, I think that is 

a very crystal clear example to the contrary. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Vitter. 

Senator BOOKER. Senator BOOKER. Mr. Chairman, I would first like to say thank 

you to you publicly. Your staff and team has been working so well 

with mine in regards to TSCA, and I am just grateful. These last 

few days you guys have been pretty extraordinary, so thank you, 

sir. 

Senator INHOFE. Thank you. 

Senator BOOKER. It is just so good to see you. And again I apologize for you just being completely ignored today, which is just insulting. If you would like to hang out after, I will buy you a beer. 

Ms. MCCARTHY. He is great moral support. 

Senator BOOKER. OK. 

But, Administrator, I just want to thank you. You have been 

such a great partner focusing and championing a lot of issues that 

are very personal to mine. You have been to my State a number 

of times and I am grateful for your work, especially for 

marginalizing and vulnerable populations. I think we have a crisis 

in this Country in terms of the toxicity and how it affects our children, particularly children in rural areas and urban area, and to 

see the health data for those children is just alarming to me. 

Really quick, one of my greater frustrations about the historical 

change of our Country is really President Reagan, who reauthorized the last time the Superfund clean-up efforts with some current 

Senators even being a part of that, was helping us to more quickly 

remove Superfunds, which exist in every single State of our Country. 

Are you aware of the health data, now that we have a lot more 

longitudinal data, that is showing that birth defects for children 

born around Superfund sites is about 20 percent higher, showing 

that autism rates for children born around Superfund sites are 

about 20 percent, that give us more scientific urgency to removing 

these Superfund sites? Are you aware of that data? 

Ms. MCCARTHY. To some extent. I am aware of a number of studies that have been done that show a couple of things. One is the 

hell of damage around these sites, but also the economic benefits 

of transforming these sites. 

45 

Senator BOOKER. Right. And definitely every dollar invested in 

cleaning up these sites creates greater economic growth, greater 

jobs. But for me the children, now that we are seeing much more 

longitudinal studies, the lost economic productivity of kids that are 

being affected and their health is being affected is really troublesome. 

So I have reintroduced the same legislation that was reauthorized by Ronald Reagan, voted on by a number of my colleagues, Republicans and Democrats, which is a small tax on polluting industries. What I guess I want to ask you really directly is when I put 

a request into the EPA to give me the count of Superfund sites, we 

have actually seen an increase in our Country of Superfund sites, 

as opposed to a decrease. 

And these orphan sites, many of them are ready to go but lacking the funding to remove them. It seems pretty stunning to me 

that you are not able to right now actively cleanup these sites 

which are affecting the health of children and pregnant women. 

Ms. MCCARTHY. Well, we would certainly love an ability to be 

able to knock some of those sites off the list. It is a long and slow 

process, and additional funding certainly helps to address that 

issue. 

Senator BOOKER. So Congress’s inaction to find this is putting at 

risk the health of our children and pregnant women in every State 

around the Country. 

Ms. MCCARTHY. There are many risks in every State around the 

Country from environmental exposures. Superfund sites are one of 

them. 

Senator BOOKER. Thank you very much. 

The other issue that I just want to bring up really quickly is air 

quality. Urban areas in New Jersey have, and you came to Newark, in fact, and helped us to start to produce the data on this, but 

the asthma rates are about three, four times higher. No. 1 reason 

why children are missing schools; the lack of productivity, the impact it has on that child’s overall success is pretty dramatic, and 

that evidence is pretty iron clad, correct? 

Ms. MCCARTHY. Yes, it is. 

Senator BOOKER. So I know you are doing some shifts and 

changes with the DERA program, but could you just outline for me, 

and I have one more question after this, so I am hoping you can 

do it quickly, some of the efforts to deal with the clean air which 

disproportionately impacts our poorest and most vulnerable communities in areas that are heavily dependent, really located in 

transportation superstructures? 

Ms. MCCARTHY. Well, as you know, our work on the National 

Ambient Air Quality Standard is a significant step forward in 

terms of looking at ozone and particulate matter, to be specific. So 

we are looking at those issues. 

We are also doing community level work. We are trying to get 

better monitoring data, look at potential localized emissions that 

are also crucial moving forward. We are working with innovators 

to develop new monitoring so we can have a better understanding 

of what air quality looks like. So we are working on a number of 

different funds from both national rules, as well as local community efforts. 

46 

Senator BOOKER. And really quickly, relative to other areas of 

the budget, there is a very small pool for environmental justice 

work. Could you just detail that? And I will be respectful for the 

Chairman. 

Ms. MCCARTHY. Yes. We have a whole community effort that we 

are looking to support in this proposal and continue, it is called 

Making a Visible Difference in Communities and it is called Environmental Justice. Those are incredibly important efforts moving 

forward, and they are efforts that are extraordinarily positive because they bring other agencies to the table so the communities 

that otherwise wouldn’t have the wherewithal to take care of these 

exposures get opportunities not just to reduce those through our 

funding, but also opportunities for new jobs, for new housing to 

really become active, engaged, and affirmative communities that 

control their own destiny. 

Senator BOOKER. Thank you very much. 

Ms. MCCARTHY. It is a wonderful opportunity. 

Senator BOOKER. Thank you. And, again, I appreciate your leadership and the passion you have for vulnerable communities. 

Mr. Chairman, thank you for the time. 

Senator INHOFE. Thank you, Senator Booker. 

Senator CAPITO. Senator CAPITO. Thank you, Mr. Chairman. 

I want to thank the witness and thank you for your service. 

Ms. MCCARTHY. Thank you, Senator. 

Senator CAPITO. I wanted to ask you about the Clean Power 

Plan. And I have been sort of in and out of the meeting, so I apologize if you have directly answered the question that I am going to 

ask, but I think the initial response I heard was vague, and that 

is what has concerned me; and that is what would happen to the 

deadlines under the Clean Power Plan if the rule is ultimately 

upheld by the Supreme Court. 

Janet McCabe, who is your Acting Assistant Administrator, she 

said that it is actually a little premature to be speculating specifically about the compliance dates in the Clean Power Plan, but I 

would beg to differ since it could have massive consequences to all 

of our States. I think something more crystal clear and definitive, 

whether these deadlines will be suspended or tolled as your brief, 

I think, before the Supreme Court seemed to agree to. 

So I guess today have you made a statement, again, if I wasn’t 

in the room, I apologize, to a clear signal as to what will happen 

to these deadlines if your rule is upheld at the Supreme Court 

level? 

Ms. MCCARTHY. Well, the reason why I think Janet indicated it 

is premature is the first compliance deadline doesn’t happen until 

2022. So we are hoping that it will be expedited, as they know 

there is an expedited schedule already in the district court to get 

through this system and get to the Supreme Court, as they have 

indicated. 

The Supreme Court didn’t speak to the tolling question; all they 

did was stay the rule. We do not have the authority on our own 

to be able to make changes to that rule, and we certainly expect 

that the courts, when they make their final decisions, will speak 

to that issue directly. 

47 

Senator CAPITO. So I guess what I am hearing is that since the 

compliance date is not until 2022, the anticipation is that the deadlines, if the Court doesn’t speak to it, the deadlines would go forward as proposed? 

Ms. MCCARTHY. Well, the deadline would if the Court doesn’t 

speak to it. The deadline we knew we couldn’t manage was the one 

that is coming up, because there is no way in which we will be to 

the Supreme Court in a timely way. 

Senator CAPITO. And what happened to that deadline? 

Ms. MCCARTHY. We indicated to the States not to submit plans 

because we are not implementing the rule. 

Senator CAPITO. Right. By that deadline. 

Ms. MCCARTHY. That is correct. 

Senator CAPITO. But you are still going to have a time for them 

to submit plans if in fact the Supreme Court agrees with the regulation. 

Ms. MCCARTHY. That is correct. 

Senator CAPITO. OK. Let me ask you this. You have stated in 

your budget and you stated, I think, well, I have here that 25 

States are continuing to voluntarily work on implementation plans. 

Is that correct? 

Ms. MCCARTHY. Yes. There are a number of States. I don’t have 

the exact number, but there are a number of States that are working on plans and there are many States that continue to get together and talk to us and look at how they would be prepared for 

the rule moving forward. 

Senator CAPITO. If we could get a more definitive number of 

States that are actually moving forward, because in your budget 

you are saying that you want to spend $25.5 million to work with 

States to develop and review CPP plans. So your whole climate 

change budget is $235 million. 

Ms. MCCARTHY. That is correct. 

Senator CAPITO. Twenty-five million of that is supposedly to help 

voluntarily with these States. 

Ms. MCCARTHY. For EPA to develop tools and work with the States. But there is also $25 million for the States themselves to 

continue to move forward on implementation voluntarily or on 

other issues related. 

Senator CAPITO. That is an additional 25? 

Ms. MCCARTHY. That is correct. 

Senator CAPITO. Is that the STAG grants to States? 

Ms. MCCARTHY. That portion is, yes. 

Senator CAPITO. Yes. 

Ms. MCCARTHY. That is not the total of the STAG grants. 

Senator CAPITO. So that is $50 million, and we are still $185 million asking for appropriations for where you State that the centerpiece of this effort, the Clean Power Plan. I would just register 

some concern that in fact it appears, through your budget, that you 

are moving forward with this even though you have a stay on it. 

It is still very much a part of the appropriations process. 

And when I look and see that the Clean Water State Revolving 

Loan Fund, which a lot of people have, and I would join in my concern about the cuts there, I could make a suggestion. I have $185 

million sitting over here I think could go right over to the Clean 

48 

Water State Revolving Fund and I think impact a lot of people and 

their health as well. 

Ms. MCCARTHY. Senator, if I could just point out. 

Senator CAPITO. Yes. Of course. 

Ms. MCCARTHY. All of that money I would be able to provide you 

the detail, but only those two are directly related to the Clean 

Power Plan, that is $50.5 million. The rest is identified as opportunities in our vehicle emissions, our Energy Star program, our 

methane reduction initiatives. So there are a number of others that 

we can certainly provide you with details on. 

Senator CAPITO. So it is a little vague in here, because you say 

the centerpiece of these efforts is the Clean Power Plan right after 

you ask for $235 million. 

Ms. MCCARTHY. And it is not all tagged to that, just the 50.5. 

Senator CAPITO. OK. All right, then let’s move to methane, because you are undertaking a series of mandates covering methane, 

but you, even in your own statements in February, said my caveat 

is that EPA is learning this industry right now because it is not 

an industry we regulate. We have just gotten into regulation of 

this, so there are hundreds of thousands of small sources and EPA 

doesn’t generally have a relationship with this industry, it is regulated at the State level, as we do other sectors that we have regulated for decades, but we are learning. 

So we are learning, but we are moving forward with a costly regulation, and the regulation has been at the States. We have pushed 

down the methane; emissions have fallen by a greater percentage 

than the number of wells that have been drawn. Do you feel that 

the States are not adequately regulating in this area? And why 

would you not let them continue since their record is moving in the 

absolutely correct direction? 

Ms. MCCARTHY. Well, the rules that we are moving forward on 

we are very confident that we have the level of information we 

need to do that rulemaking appropriately. There are some States 

that are doing a great job, and we are coordinating with them to 

make sure we are not duplicating and to coordinate on reporting 

or any other requirements under a Federal law. But there are 

many States that continue to have challenges in this regard and 

what we have identified is that there are many more methane 

emissions from the oil and gas sector than we had previously understood. 

So when I am talking about learning, we are actually putting out 

an information collection request to the industry that will provide 

us the level of data not just on emissions, but on technology choices 

to reduce those, as well as costs, so that we can work with States 

to identify where they can improve and where a Federal rulemaking may be advisable and what that might look like. 

Senator CAPITO. Thank you. 

Senator INHOFE. OK, this does complete all of those who have 

been here. I am going to do something that I know I will regret, 

but I am going to do it anyway, because we have one member on 

our side who really wants to have three more minutes. So I am 

going to ask Senator Boxer if she would like to have three more 

minutes and, if so, maybe even give that to you, Senator 

Whitehouse. 

49 

Senator BOXER. No, I am going to need my 3 minutes. 

Senator INHOFE. Why don’t you go ahead and take your 3 minutes, then? 

Senator BOXER. I would prefer to wait. 

Senator INHOFE. Well, I would prefer you take it now. Please do. 

Senator BOXER. Well, I would prefer to wait. 

Senator INHOFE. Well, I prefer you take it now. You know, we 

had an election, you understand. 

Senator BOXER. It is ridiculous. 

Senator INHOFE. Yes, I agree. 

Senator BOXER. But I will take it now. I will take it now. 

First of all, I want to answer some of the garbage that you have 

heard here today. I want to talk about job creation, because a lot 

of people here have taken it on and said environmental regulations 

stop jobs. 

Let me tell you about my State. Leader in taking action on climate; leader in taking action on pollution control. We created, in 

our great State, since 2011, 17 percent of all the new jobs. OK? 

And we account for 11 percent of the population. And I will ask 

unanimous consent to place those exact numbers in the record. 

Senator INHOFE. Without objection. 

Senator BOXER. Now, we also hear from Senator Vitter the ozone 

rule is killing jobs. Let me just say something here. If you can’t 

breathe, you can’t work. Let’s be clear. And if you die prematurely, 

you surely can’t work because you are dead. So here is the deal. 

With this rule we will save 320 to 660 people from premature 

death. OK? Two hundred thirty thousand asthma attacks in children will be averted. One hundred sixty thousand days we will not 

have kids miss school; 28,000 missed work days will not happen; 

630 asthma-related emergency room visits will not happen; and 

340 cases of acute bronchitis in children will not happen. 

So when you look at this and you see this constant refrain from 

my colleagues on the right here against the environment, totally 

against it, attacking you, and you have been fabulous standing up 

to these nonsensical attacks, you wonder why they are doing it 

given I made a mistake, I said our job approval as a Congress was 

18 percent; it is 14 percent according to a CBS News poll, April 

2015. People want us fighting to clean up the air and cleanup the 

water. There is no question about it. 

And I will put into the record the counter poll numbers; Senator 

Carper alluded to it. I want to be pretty clear. First of all, from 

1970 to 2014, aggregate national emissions of the six common pollutants alone dropped an average of 69 percent, while gross domestic product grew by 238 percent. So anyone who has been alive 

through these years, who has a heartbeat and a pulse knows when 

you cleanup the environment, you boost the economy for so many 

reasons: people’s health; the fact that, yes, we make investments 

in clean technology that get disbursed throughout the world. 

And if you look at the voter support for Clean Power Plan, 60 

percent; 73 percent of voters support the U.S. Environmental Protection Agency placing stricter limits on the amount of ozone pollution; and they do not want the Congress to deal with it. 

50 

I will close with this. The Waters of the United States, 77 percent say the EPA should protect us from the dirty water and do 

the clean water rule; 9 percent say the Congress should to it. 

So I stand with the American people against this right-wing 

rhetoric, and it is just ridiculous that this is the Environment Committee and you need to be subjected to the kind of attacks that you 

have been submitted to. 

And also on TSCA there is no agreement. I just checked with 

Nancy Pelosi. 

Senator INHOFE. All right, I will take my 3 minutes and 52 seconds, and I am going to give my 3 minutes and 52 seconds to Senator Sullivan, after which we will be adjourned. 

Senator SULLIVAN. 

Senator SULLIVAN. Thank you, Mr. Chairman. I want to thank 

the Ranking Member, whom I have the utmost respect for. I just 

think sometimes we are reflecting the different frustrations of our 

constituents, and my constituents are enormously frustrated by 

many, not all, actions of the EPA, and one of them is compliance 

with the rule of law. And it is not just me talking, it is Laurence 

Tribe, it is the U.S. Supreme Court, it is the 6th Circuit. I mean, 

it is pretty dramatic. 

Administrator, I appreciate your service. I know it is not always 

easy, but I am shocked at your statement about even if we lose, 

we win. This is the kind of statement that fuels the frustration so 

many Americans have regarding their Federal Government, and I 

just would thoroughly disagree with you. I think that is the kind 

of statement that senior Administration officials should not be 

making, because it demonstrates that you are not serious about the 

rule of law. 

But let me go to another issue that we had a hearing on, the 

Animas River spill. You testified here, when I asked a question on 

that, should you be held to the same standard as the public or private sector of American citizens or companies, you said that, actually, it would be a higher standard that would be appropriate for 

your agency. 

So can you give us an update on what happened there? And let 

me just ask a couple questions. Has anyone been held accountable? 

And what do you think would happen if a private sector company 

did exactly what the EPA or its contractors did in this case, which 

is, I assuming accidentally, I am assuming you didn’t intentionally 

pollute a water, through a mistake? 

What would happen to a private sector company? I can tell you, 

you probably know this, EPA has actually criminally prosecuted 

private sector companies for doing something less serious. So this 

is a bit of an act as I say, not as I do issue. 

Can you give us an update and is anyone being criminally prosecuted or is anyone resigning or has anyone taken responsibility as 

you would if it were a private sector company who did the identical 

thing? At the last hearing we had on this, for the record, I did give 

many examples of that kind of prosecution that the EPA has undertaken. What is the latest? And are you holding yourself to a 

higher standard, as you said you would, than you would to a private American citizen? 

51 

Ms. MCCARTHY. I believe we are, and I know that the Office of 

the Inspector General is producing a report where he is looking at 

the issue and will provide that when the report is complete. But 

I think, as you know, we were there actually to be of assistance to 

the State and those local communities struggling with the mine situation and the potential for a blowout. 

Senator SULLIVAN. But, Administrator, if it is a higher standard 

and you made a mistake, not intentional, you polluted dramatically 

a river, if a private sector American did that, say with a backhoe 

like happened in Alaska, unintentionally, criminally prosecuted. So 

how can you say you are holding EPA to a higher standard when 

it doesn’t even seem like anyone has resigned or done anything? So 

I don’t get it. 

Ms. MCCARTHY. I think there is a difference between going in 

and trying to be helpful to resolve the situation that we know is 

a significant problem and there is a difference between intending 

to create a problem, and so—— 

Senator SULLIVAN. Right, but you have prosecuted criminally 

people who have not intentionally polluted. 

Ms. MCCARTHY. Yes. 

Senator SULLIVAN. Now, look, polluters should be prosecuted to 

the full extent of the law, I agree with that. But if you are saying 

that you should be held to the same standard, let me just end with 

a related—— 

Ms. MCCARTHY. The issue is, were we negligent? Did we do our 

job? Was the accident intended or could we have done something 

that prevented that? Those issues the Inspector General is looking 

at and we will be able to speak to that. But, in the meantime, our 

job is to clean it up, to reimburse those expenses, to look at the 

long-term monitoring, and we certainly are doing that to the best 

we can. 

Senator INHOFE. Madam Administrator, we are adjourned. 

Ms. MCCARTHY. Oh, thank you so much. 

[Whereupon, at 11:53 a.m. the committee was adjourned.] 

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