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[Senate Hearing 110-1246]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 110-1246

      HEARING ON THE NOMINATION OF DAVID R. HILL TO BE ASSISTANT 
ADMINISTRATOR (GENERAL COUNSEL) FOR THE ENVIRONMENTAL PROTECTION AGENCY

=======================================================================

                                HEARING

                               before the

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 10, 2008

                               __________

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

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                            congress.senate

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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED TENTH CONGRESS
                             FIRST SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York     JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont             LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota             LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island     CHRISTOPHER S. BOND, Missouri

       Bettina Poirier, Majority Staff Director and Chief Counsel
                Andrew Wheeler, Minority Staff Director

                            C O N T E N T S

                              ----------                              
                                                                   Page

                        THURSDAY, APRIL 10, 2008
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
Craig, Hon. Larry E., U.S. Senator from the State of Idaho.......     3
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...    24
Bond, Hon. Christopher S., U.S. Senator from the State of 
  Missouri.......................................................    27
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island.........................................................    30
 Cardin, Hon. Benjamin L., U.S. Senator from the State of 
  Maryland.......................................................    46
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..    46

                               WITNESSES

Hill, David R., Nominated to be Assistant Administrator (General 
  Counsel) for the Environmental Protection Agnecy...............     4
    Prepared statement...........................................     6
    Responses to additional questions from:
        Senator Boxer............................................     7
        Senator Cardin...........................................    21
        Senator Inhofe...........................................    22

 
      HEARING ON THE NOMINATION OF DAVID R. HILL TO BE ASSISTANT 
ADMINISTRATOR (GENERAL COUNSEL) FOR THE ENVIRONMENTAL PROTECTION AGENCY

                              ----------                              

                        TUESDAY, APRIL 10, 2008

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The full committee met, pursuant to notice, at 9 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Barbara Boxer 
(chairman of the full committee) presiding.
    Present: Senators Boxer, Inhofe, Barrasso, Bond, Cardin, 
Carper, Craig, and Whitehouse.

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. The Committee will come to order.
    We are here today to consider the nomination of Mr. David 
Hill to be EPA's General Counsel. The General Counsel is EPA's 
legal conscience, a vital internal check. That check is 
supposed to ensure that EPA follows the law and fulfills its 
mandate.
    When EPA was created, President Nixon said it should be ``a 
strong independent agency that established and enforced 
environmental protections and assisted others in combating 
pollution.''
    In its first 30 years, Democrats and Republicans worked 
together to support EPA's progress in cleaning up our Nation's 
air, water and other resources. EPA's programs were improving 
the quality of our environment and helping to protect our 
children from deadly diseases caused by pollution.
    I am very distressed to say that EPA today is a shadow of 
its former self. Our Nation's most important independent 
protector of public health and the environment has turned into 
an agency that sadly has not followed the law. This has been 
pointed out by multiple judges liberal, moderate and 
conservative.
    Let me tell you about a few of the recent court decisions 
that have found EPA's actions in violation of the law. In New 
York v. EPA in 2006, the D.C. Circuit Court said that EPA's 
approach to the law would make sense only in a Humpty Dumpty 
world. In New Jersey v. EPA this past February, the same court 
overturned EPA's rule seeking to weaken controls on mercury 
emissions, saying ``EPA's explanation deploys the logic of the 
Queen of Hearts, substituting EPA's desires for the plain text 
of the Clean Air Act.''
    In Mossville Environmental Action Now v. EPA in 2004, the 
D.C. Circuit rejected EPA's attempt to exempt whole categories 
of toxic pollutants which it said violated EPA's ``clear 
statutory obligation to set emissions for each listed hazardous 
air pollutant.''
    Sadly, there are many more examples and I will place in the 
record, without objection, a list of these cases which is 
astounding. We have a long list of court decisions where EPA 
actions have been overturned. It is a remarkable record of 
losses, especially for an agency that has always been given 
great deference by the courts.
    Today, we face serious environmental problems that threaten 
our children's and family's health and the very future of our 
planet. I do have concerns and questions about the nominee 
before us today. His past work for polluting industries raises 
issues. In addition, his participation while at DOE in 
developing the EPA mercury rule that the court overturned and 
his work on the EPA rule that weakened air pollution controls 
for power plants that was also reversed by the court raises 
significant questions.
    I also have concerns about his advocacy for the deeply 
flawed Yucca Mountain nuclear waste disposal facility and about 
some of his work on high-level nuclear waste tanks at DOE 
sites.
    Being nominated to serve as the legal conscience of an 
agency is a very important responsibility. EPA's next General 
Counsel should have a track record of working to increase 
protections and open up government, and a demonstrated capacity 
to stand up to those who advocate ignoring the law.
    I hope you understand, Mr. Hill, that my comments are not 
meant to be personal. They are just based on the record. So I 
plan to ask Mr. Hill to respond to my concerns.
    Senator Craig.
    [The prepared statement of Senator Boxer follows:]

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

    We are here to consider the nomination of Mr. David Hill to 
be the Environmental Protection Agency's General Counsel.
    The General Counsel is EPA's legal conscience, a vital 
internal check who is supposed to ensure that EPA follows the 
law and fulfills its mandate.
    When EPA was created, President Nixon said it should be a 
strong, independent agency that established and enforced 
environmental protections and assisted others in combating 
pollution.
    In its first 30 years, Democrats and Republicans worked 
together to support EPA's progress in cleaning up our nation's 
air, water, and other resources. EPA's programs were improving 
the quality of our environment and helping to protect our 
children from deadly diseases caused by pollution.
    However, I am distressed to say that EPA is a shadow of its 
former self; our nation's most important independent protector 
of public health and the environment is an agency that does not 
follow the law, as has been pointed out by multiple judges 
liberal, moderate and conservative.
    Let me tell you about just a few of the recent Court 
decisions that have found EPA's actions in violation of the 
law: In New York v. EPA, in 2006, the D.C. Circuit Court said 
that EPA's approach to the law would make sense only in a 
Humpty Dumpty world.
    In New Jersey v. EPA, this past February, the same court 
overturned EPA's rule seeking to weaken controls on mercury 
emissions, saying: EPA's "explanation deploys the logic of the 
Queen of Hearts, substituting EPA's desires for the plain text" 
of the Clean Air Act.
    In Mossville Environmental Action Now v. EPA, in 2004, the 
D.C. Circuit rejected EPA's attempt to exempt whole categories 
of toxic pollutants, which it said violated EPA's "clear 
statutory obligation to set emissions for each listed 
[hazardous air pollutant]".
    Sadly, there are many more examples. We have a long list of 
court decisions where EPA actions have been overturned. This is 
a remarkable record of losses, especially for an agency that is 
given great deference in the courts.
    Today, we face serious environmental problems that threaten 
our children's and families health and the very future of our 
planet. I have concerns and questions about this nominee. Mr. 
Hill's past work for polluting industries raises issues. In 
addition, his participation while at DOE in developing the EPA 
mercury rule that the court overturned, and his work on the EPA 
rule that weakened air pollution controls for power plants, and 
that was also reversed by the court, raise significant 
questions.
    I also have concerns about his advocacy for the deeply 
flawed Yucca Mountain nuclear waste disposal facility, and 
about some of his work on high level nuclear waste tanks at DOE 
sites. Being nominated to serve as the legal conscience of an 
agency is a important responsibility. EPA's next General 
Counsel should have a track record of working to increase 
protections and open up government, and a demonstrated capacity 
to stand up to those who advocate ignoring the law. I plan to 
ask Mr. Hill to respond to my concerns.

            OPENING STATEMENT OF HON. LARRY CRAIG, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Craig. Madam Chairman, thank you.
    I came early because I have to leave very quickly, but I 
did want to be here in support of David. Let me say that I have 
had a personal working relationship with him.
    Madam Chair, I would like you to listen to this. Thank you.
    Senator Boxer. I will. I am just trying to figure out 
something.
    Senator Craig. All right. Go right ahead.
    Senator Boxer. All right.
    Senator Craig. Thank you.
    We have a national nuclear laboratory in Idaho and a 
substantial amount of buried waste. We also have waste tanks 
that were used in a waste management process. I must tell you 
that in my work with David he has been diligent and responsible 
to the law and to the responsibility of the Nation and very 
responsive to our State.
    Our State and its attorneys and its appointed people who 
monitor this very closely have had a good working relationship 
with him. Clean-up is on schedule and on time. Milestones have 
been met. And here is a person who has been involved in that, 
and very sensitive to it and responsible in part for it. So I 
think it is important that the record show that.
    I think as somebody who has probably monitored Yucca 
Mountain since the day the first rotary drill went in the side 
of the mountain, when you speak of a deeply flawed involvement, 
you speak, only of an opinion that is expressed by some versus 
opinions that are expressed by others, that the mountain is 
stable, sound, geologically capable of doing what it was 
intended to do.
    It is the politics of this issue, in my opinion as somebody 
who has monitored it very closely, and not the science of it 
that will make the determination as to its credibility or lack 
thereof. David has been in my opinion no part of that and DOE 
has handled it responsibly. We now move to a licensing process 
for the mountain. It will have to stand on its own credibility 
with a very critical agency--the Nuclear Regulatory Commission. 
We will find out whether it stands the test of politics or it 
stands the test of science. That really is the issue.
    Beyond that, I thank you for recognizing that these are 
issues that spiral around anyone, but it is the individual we 
ought to look at and his or her capability to the position 
nominated. I must tell you if you are frustrated about EPA and 
how it is or is not being operated, I would suggest that if you 
look at David's record, there is only one conclusion you can 
draw from his professional capabilities. That is, he will bring 
responsibility and integrity to the office that he is being 
asked to serve in.
    Thank you very much, Madam Chair.
    Senator Boxer. Thank you so much, Senator. And believe me, 
we will take it to heart.
    I will start with some questions. This may be a brief 
hearing.
    Yes, let's do the statement.

     STATEMENT OF DAVID R. HILL, NOMINATED TO BE ASSISTANT 
     ADMINISTRATOR (GENERAL COUNSEL) FOR THE ENVIRONMENTAL 
                       PROTECTION AGENCY

    Mr. Hill. Thank you, Madam Chairman.
    Senator Boxer. By the way, how much time do you want for 
your statement? Will 7 minutes do it?
    Mr. Hill. That will be more than enough.
    Senator Boxer. OK. We will give you 7 minutes and you can 
have what you need.
    Mr. Hill. Madam Chairman and members of the Committee, I am 
honored to appear before you today as the President's nominee 
to be General Counsel of the Environmental Protection Agency. I 
thank the Committee and the Chairman for holding this hearing 
to consider my nomination. I also thank the President for 
nominating me for this position.
    I would like to introduce my wife Kristina who is with me 
at today's hearing. I also would like to introduce two of our 
daughters, Anna who is 8 years old and is in third grade, and 
Margaret, who is 5 years old and is in kindergarten. We decided 
that our third daughter, Julia, who is 3 years old might enjoy 
her preschool class today more than this hearing, so she is not 
here with me this morning.
    Senator Boxer. So would I.
    [Laughter.]
    Mr. Hill. I want to thank all of them for the joy and the 
support they give me each day.
    Since August, 2005, I have served as General Counsel of the 
U.S. Department of Energy. I served as the department's Deputy 
General Counsel for Energy Policy from 2002 until the Senate 
confirmed me as DOE's General Counsel. Before 2002, I was in 
private practice with Wiley, Rein and Fielding and Wilmer, 
Cutler and Pickering here in Washington and with the Blackwell 
Sanders firm in Kansas City, Missouri. I also served on the 
staff of the House of Representatives Committee on Agriculture.
    While at DOE, I have worked closely with Secretary Bodman 
and other department officials to advance the department's work 
in its four main mission areas of energy, science, 
environmental management, and national defense. I have handled 
legal matters and have supervised attorneys working in all of 
these areas. It has been and continues to be a real privilege 
and a real honor for me to work for Secretary Bodman and with 
other officials at the department.
    EPA's primary mission is to protect public health and the 
environment. If confirmed as the agency's General Counsel, I 
would seek to help the Administrator and other agency officials 
develop regulations and make decisions that will advance that 
mission and be sound and defensible both legally and from the 
policy perspective. My experience at another Federal agency 
would help me do that.
    I have been a practicing lawyer for almost 20 years, and 
over time have worked for different clients with different 
perspectives and different viewpoints. I believe I could 
successfully make the transition from DOE to EPA and could use 
my knowledge and experience to help advance EPA's work.
    One way in which my prior experience would be useful is 
that I have worked extensively with senior government officials 
throughout the Administration and have worked to help craft 
solutions to difficult problems that often involve competing 
arguments and viewpoints. I believe I could do the same at EPA.
    At DOE, I also have managed and have worked with a large 
staff of attorneys, virtually all of whom are career Federal 
employees. Every day, I rely on their expertise and judgment, 
and they have my deepest respect and admiration. I hope I have 
earned their respect as well, as being a General Counsel who 
works hard, evaluates the law carefully, and works toward 
solutions that best advance the department's mission.
    If confirmed as EPA's next General Counsel, I would look 
forward to working very closely with the career attorneys at 
EPA and I would rely heavily on their expertise and judgment. 
While I am aware of some of the legal matters and other 
challenges currently pending before EPA, I of course am not 
familiar with all of them. If I am confirmed, I anticipate that 
one of my first actions at EPA would be to meet individually 
with each of the Deputy General Counsels and Associate General 
Counsels to learn more about the issues on which they are 
working and how I might assist them in addressing those issues.
    Madam Chairman and members of the Committee, I recognize 
that the work of EPA often is controversial. From my experience 
at DOE, I know that when presented with competing arguments and 
viewpoints it is difficult, if not impossible, for a decision 
to be made that makes everyone happy. Nevertheless, I assure 
you that if I am confirmed as EPA's General Counsel, I would do 
my best to help advance EPA's mission of protecting human 
health and the environment in a manner that considers all views 
and opinions, complies with the law, and serves the public 
interest.
    At DOE, I have sought to do that by dealing with everyone 
fairly and by respectfully considering competing arguments and 
viewpoints. I would do the same at EPA if confirmed as that 
agency's General Counsel.
    It would be an honor for me to serve as EPA's General 
Counsel at this time when so many challenging issues are 
presented to the country and to EPA. As both a lawyer and as 
the father of three young children, I would consider it a 
privilege to serve in this position and work to protect the 
health, environment and welfare of all Americans in a manner 
that is both faithful to the law and faithful to the trust 
placed in me.
    Madam Chairman, that concludes my prepared statement. Thank 
you again for holding this hearing today. I would be glad to 
answer the Committee's questions at this time.
    [The prepared statement of Mr. Hill follows:]

Statement of David R. Hill Nominated to be Assistant Administrator and 
       (General Counsel) for the Environmental Protection Agency

    Madam Chairman, Senator Inhofe, and members of the 
Committee, I am deeply honored to appear before you today as 
the President's nominee to be an Assistant Administrator and 
General Counsel of the United States Environmental Protection 
Agency. I thank the Committee for holding this hearing today to 
consider my nomination. I also thank the President for 
nominating me for this position.
    My wife Kristina is here with me today, along with our 
three beautiful daughters--Anna who is 8, Margaret who is 5, 
and Julia who is 3. I want to thank all of them for their 
patience and support, particularly during my 6 years of service 
at DOE, when the hours often have been long and I have not been 
able to spend as much time with them as I, or they, have 
wanted. I also thank my parents, Ronald and Shirley Hill, for 
the support and the opportunities they gave me growing up in 
Smithville, Missouri, and which allowed me to be here today.
    I currently serve as General Counsel of the United States 
Department of Energy. I was confirmed by the Senate and 
appointed by the President to that position almost 3 years ago, 
and have served as DOE's General Counsel since August 2005. 
From March 2002 until I became the General Counsel, I served as 
DOE's Deputy General Counsel for Energy Policy. Before coming 
to the Department in March 2002, I spent most of my career in 
private practice, with Wiley, Rein & Fielding and Wilmer, 
Cutler & Pickering in Washington, DC, and with the Blackwell 
Sanders firm in Kansas City, Missouri.
    As the Department of Energy's General Counsel, I am 
professionally responsible for the work of more than 250 
attorneys throughout the country, and I directly supervise a 
staff of about 150 Federal employees in Washington. I work on 
the broad range of legal and policy matters that come before 
the Department, and often represent DOE in discussions or 
negotiations with colleagues in other executive branch agencies 
as the Administration considers significant rulemakings or 
policy matters. I also work with Members of Congress and their 
staffs on matters affecting the Department and its programs--in 
the Senate, particularly with the staff of the Energy and 
Natural Resources Committee and the Appropriations Committee. 
If confirmed as EPA's General Counsel, I would look forward to 
working with this Committee and its staff on the many important 
matters that come before the agency.
    During my almost 20 years as a practicing lawyer, much of 
my work has been devoted to matters that have had significant 
energy or environmental components. Energy and environmental 
issues often are intertwined, both in terms of law and policy. 
As a result, both at DOE and in private practice I often have 
had the occasion to consider and evaluate both energy and 
environmental issues with respect to particular matters. If I 
am confirmed as EPA's next General Counsel, I believe this 
perspective would be useful as I seek to help the agency 
advance its mission of protecting human health and the 
environment in a manner that fully complies with the law. 
Moreover, while I obviously am not familiar with all of the 
matters currently pending before the EPA General Counsel's 
Office, I have a substantial amount of experience managing the 
general counsel's office of an executive branch agency, whose 
lawyers cover a very broad range of disciplines and substantive 
areas. I believe this experience would help enable me to 
effectively carry out the duties of the EPA General Counsel and 
to manage the legal work of that office.
    I am fully aware that EPA and its Office of the General 
Counsel often handle issues that are controversial and on which 
there may be significant disagreements. If confirmed as EPA's 
General Counsel, I believe I could work effectively in that 
situation, and could help address issues in a manner that 
serves the public interest.
    During my 6 years at DOE and particularly during my time as 
General Counsel, there have been many times that I have been 
engaged in the vigorous internal debate that often precedes the 
Administration or the Department making a particular decision. 
The public almost never sees this debate, but I have been a 
part of it many, many times. As I have participated in these 
discussions, I have worked extensively with both career and 
non-career attorneys and other officials at the Department of 
Energy and throughout the Government, as well as with non-
governmental parties. I believe that in those dealings, I have 
earned the reputation of being careful and considerate of all 
viewpoints, of working hard, and of making and evaluating 
arguments on their legal, technical and policy merits. I try to 
deal with everyone fairly and respectfully, and seek to 
evaluate and address arguments and issues so that I can make 
decisions, or advise the Secretary of Energy and other senior 
officials about their decisions, in a manner that complies with 
the law and best serves the public interest.
    In all of these matters, I view myself as being responsible 
not simply for presenting issues, problems or analyses, but 
also for presenting solutions. I encourage the attorneys in 
DOE's Office of the General Counsel to approach their work in 
the same way. I believe that attorneys often can be uniquely 
helpful in crafting solutions to problems in a way that 
complies with the law while addressing the concerns of 
interested parties. If confirmed as EPA's General Counsel, I 
would hope to bring this same sense of purpose to my work at 
EPA.
    The Congress, the President and the American people have 
entrusted the Environmental Protection Agency with the 
difficult and vitally important mission of protecting and 
safeguarding human health and the environment. If confirmed as 
EPA's General Counsel, I would do my best to help advance that 
mission in a manner that fully complies with the law and best 
serves the public interest. As a lawyer and as a senior 
Government official, it would be a great honor for me to serve 
in this position at this time, when so many challenging issues 
are presented to the country and to the EPA. As the father of 
three young children who will live for many decades with the 
consequences of decisions we make today, it would be my 
privilege and my duty to do what I can to effectively advance 
EPA's mission in a manner that is faithful to the law and to 
the trust that has been placed in both the EPA and in me.
    I want to again thank President Bush and Administrator 
Johnson for the trust they have expressed in me by nominating 
me for this position. I thank the Committee for holding this 
hearing and considering my nomination to be EPA's next General 
Counsel. It would be an honor and a privilege for me to serve 
the American people in this position.
    Madam Chairman, that concludes my prepared statement. I 
would be glad to answer the Committee's questions at this time.

          Responses of David R. Hill to Additional Questions 
                           from Senator Boxer

    Question 1a. In April 2007 the V.S. Supreme Court held in 
Massachusetts v. EPA that greenhouse gases (GHGs) are 
``pollutants'' under the Clean Air Act and subject to 
regulation by EPA.
    Have you participated in any EPA discussions, reports, 
rulemakings (including proposed, final, and advanced notices of 
proposed rulemaking) or other activities concerning GHGs? 
Describe in detail all such activities and the nature of your 
involvement in each.
    Response. On May 14, 2007, and in response to the Supreme 
Court's decision in the Massachusetts v. EPA case, the 
President issued Executive Order 13432, which concerned 
cooperation among Federal agencies, including the Environmental 
Protection Agency (EPA) and the Department of Energy (the 
Department, or DOE), in protecting the environment with respect 
to greenhouse gas emissions from motor vehicles or the use of 
motor vehicle fuels, including alternative fuels. Among other 
things, that Executive Order requires the agencies to 
coordinate with each other on certain regulatory actions ``to 
ensure the coordinated and effective exercise of the agencies 
to protect the environment with respect to greenhouse gas 
emissions from motor vehicles, nonroad vehicles, and nonroad 
engines, in a manner consistent with sound science, analysis of 
benefits and costs, public safety, and economic growth.'' That 
same day, and in recognition of the Supreme Court's decision in 
the Massachusetts v. EPA case, the President also directed EPA, 
DOE, and the Departments of Transportation and Agriculture to 
take the first steps toward regulations that would cut gasoline 
consumption by motor vehicles, using the President's 20 in 10 
plan ``as a starting point.'' Following the issuance of the 
Executive Order and the President's direction about agency 
actions, I participated on behalf of the Department of Energy 
in a number of interagency meetings concerning how the Federal 
Government should respond to the Supreme Court's decision. 
These meetings concerned potential regulatory actions and 
related reports by EPA, as well as by other agencies. In 
addition, several years ago when I was DOE's deputy general 
counsel for energy policy, I participated in some interagency 
and internal DOE discussions concerning EPA's decisions whether 
it could or would regulate C02 emissions under the Clean Air 
Act. During those meetings and discussions, I represented the 
Department of Energy and expressed the Department's views on 
relevant policy or legal matters.

    Question 1b. Other than materials already placed in any 
public rulemaking docket, provide copies of all documents in 
DOE's or your possession or control relating to your 
involvement in such activities. (For purposes of these 
requests, ``documents'' include all memos, e-mails, phone logs, 
calendar entries, notes, and other agency records.)
    To the best of my knowledge, I have no documents in my 
possession or control relating to my involvement in the 
activities described in response to question 1a. For purposes 
of this response, what is in my possession or control refers 
only to what is in my possession or control in my personal 
capacity. I do not, in my personal capacity, have possession of 
or control over any official Department of Energy documents or 
records.

    Question 2a. The regulatory docket for EPA's New Source 
Review rule on Routine Maintenance, Repair and Replacement 
(Docket OAR-2002-0068) (NSR Rule) includes handwritten edits, 
comments and inserts that you submitted to EPA.
    What role did you play relating to the development of the 
policies reflected in the NSR Rule?
    Response. In 2002, EPA issued a notice of proposed 
rulemaking concerning the routine maintenance, repair and 
replacement (RMRR) exclusion to New Source Review requirements. 
In 2003, EPA issued a final RMRR rule. The President's National 
Energy Policy, which was developed in early 2001 and issued in 
May 2001 (before I was appointed to a position in the 
Department of Energy), called for efforts to ``provide 
regulatory certainty to allow utilities to make modifications 
to their plants without fear of new litigation.'' Furthermore, 
it recommended that EPA, in consultation with other agencies, 
review NSR regulations and report back to the President ``on 
the impact of the regulations on investment in new utility and 
refinery generation capacity, energy efficiency, and 
environmental protection.'' Subsequently, in June 2001, EPA 
issued a background paper that reviewed the NSR program, and in 
June 2002, EPA sent to the President a report concerning the 
NSR program; that report contained some conclusions concerning 
needed improvements to the NSR program, including that changes 
to the program to improve the clarity and scope of the RMRR 
exclusion would be desirable.
    I joined the Department of Energy in March 2002, as deputy 
general counsel for energy policy; prior to that time I was 
engaged in the private practice of law. I played no part in the 
development of the 2001 National Energy Policy or in the June 
200 I EPA background paper concerning the NSR program. To the 
best of my recollection, I also did not play any part in the 
development of EPA's June 2002 report to the President 
concerning the NSR program. Again to the best of my 
recollection, my involvement with the RMRR regulations began in 
late summer 2002, when I participated along with other DOE 
personnel in reviewing, during the interagency review process, 
the draft RMRR notice of proposed rulemaking that had been 
prepared by EPA. I also participated in the interagency review 
process leading up to EPA's issuance of the final RMRR 
regulations in August 2003. My involvement in those processes 
was premised on the policy choices that had been made by others 
as to the direction of and policy objectives to be pursued in 
the RMRR regulations. During those meetings and discussions, I 
represented the Department of Energy and expressed the 
Department's views on relevant policy or legal matters, and to 
the best of my recollection, I was neither asked nor did I 
volunteer my personal opinion as to the policy direction and 
policy objectives being pursued.

    Question 2.b Were you in support of the policies reflected 
in the NSR Rule? If so, describe in detail the reasons why you 
supported it.
    Response. The Department of Energy generally supported the 
policy objectives that were advanced by EPA in the RMRR 
regulations that EPA proposed in 2002 and finalized in 2003. My 
participation in the interagency process involved representing, 
along with other Department officials, DOE's energy policy 
concerns. I do not recall developing or expressing a personally 
held view as to the policies reflected in the RMRR regulations, 
or as to the legal judgment by EPA that its course of action 
was legally permissible. It is possible I did so, but if so I 
do not recall it.

    Question 2c. Other than materials placed in any public 
rulemaking docket, provide copies of all documents in DOE's or 
your possession or control relating to your involvement in each 
of these matters.
    Response. To the best of my knowledge, I have no documents 
in my possession or control that are responsive to this 
request. For purposes of this response, what is in my 
possession or control refers only to what is in my possession 
or control in my personal capacity. I do not, in my personal 
capacity, have possession of or control over any official 
Department of Energy documents or records.

    Question 2d. In addition to submitting the written comments 
on the NSR Rule to EPA included in the docket, did you 
participate in meetings or calls with Bill Wehrum or others at 
EPA regarding the rule, or did you in any other way provide 
views or input on the substance of the NSR Rule through 
meetings, calls, or otherwise?
    Response. As noted in response to Question 2.a., part of my 
work as deputy general counsel for energy policy at DOE 
involved participation in the interagency review process for 
various regulations, including EPA's proposed and final 
rulemakings on the RMRR regulations. That participation 
included meetings or calls with Bill Wehrum--a senior official 
in EPA's Office of Air and Radiation and whose official duties 
included work on the RMRR regulations--and others at EPA 
regarding the proposed RMRR regulations that EPA issued in 
2002, and the final regulations that the agency issued in 2003.

    Question 2e. If you do not have records relating to 
particular instances of participation, then provide your best 
recollection of content of any such participation, including 
but not limited to (a) the issues discussed at each meeting, 
conversation, or exchange of information, and (b) the dates or 
over what time period they occurred.
    Response. I do not have a specific recollection of 
particular interagency meetings or particular conversations 
during the interagency review process for the proposed and 
final RMRR regulations. That activity took place approximately 
five or six years ago, from about mid-2002 until EPA issued the 
final RMRR regulations in 2003. Both in the interagency review 
process as well as in discussions internally at DOE among 
Department personnel, I believe that at various times those 
discussions likely covered the range of energy policy issues 
addressed in EPA's notice of proposed rulemaking and notice of 
final rulemaking on the RMRR regulations.

    Question 2f. Did you harbor or express any concerns about 
the legal risks associated with the statutory interpretations 
advanced by EPA in this rulemaking? If so, what were those 
concerns and how did you express them?
    Response. At various points during the interagency review 
process for EPA's proposed and final RMRR regulations, I recall 
that there were discussions concerning the legal grounding for 
the regulations, and concerning the preamble explanation for 
the regulations. I, and I believe other executive branch 
officials participating in the interagency review process, 
understood and discussed that, despite favorable Supreme Court 
guidance in the Court's decision in Chevron U.S.A., Inc. v. 
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), 
concerning deference to an agency's interpretations in its 
rulemaking activities of a statute the agency is charged by law 
to implement, there could be legal challenges to the final 
rules, and understood that there were legal risks associated 
with the regulations. I do not recall specific times, dates or 
content of particular discussions on those matters, but I do 
remember generally that discussions on those topics occurred. 
And, of course, there was a public discussion of legal bases 
for the proposed and final regulations set forth in the 
preambles for the proposed and final RMRR regulations, and I am 
sure that I participated in discussions on that text, though 
again I do not recall specific dates or times.

    Question 2g. Do you believe that the legal interpretation 
advanced by EPA in the NSR rule were defensible? Did you 
believe that those legal interpretations would prevail? Do you 
agree with the D.C. Circuit's decision in New York v. EPA, 443 
F.3d 880 (D.C. Cir. 2006), including the Court's statutory 
interpretations and its treatment of EPA's legal arguments?
    Response. At the time the proposed and final RMRR 
regulations were issued by EPA, I was DOE's deputy general 
counsel for energy policy, and I do not remember being called 
upon to offer a personally held view on the legal defensibility 
of those regulations. I also do not recall formulating a 
personally held view as to their legal defensibility, or about 
the probability of EPA prevailing in litigation if the 
regulations were challenged. As noted in response to earlier 
questions, however, I did participate on DOE's behalf in some 
discussions on legal and policy aspects of those regulations, 
and represented the Department and expressed DOE's views on 
relevant policy or legal matters. As to the question of whether 
I agree with the decision of the U.S. Court of Appeals for the 
D.C. Circuit in the case of New York v. EPA, 443 F.3d 880 (D.C. 
Cir. 2006), which concerned the EPA's RMRR regulations, I have 
not evaluated the decision for the purpose of deciding whether 
I personally agree or disagree with the Court. Rather, I have 
reviewed the opinion to understand the Court's decision and its 
reasoning, for purposes of guiding future action.

    Question 2h. Did you play any role in the administration's 
discussions and decisions to seek rehearing en bane of the D.C. 
Circuit's ruling, or to submit a petition for a writ of 
certiorari to the Supreme Court, in New York v. EPA? If so, 
please describe your role.
    Response. In my role as general counsel of the Department 
of Energy, I did participate in interagency discussions 
concerning whether the United States should seek rehearing of 
the decision of the U.S. Court of Appeals for the District of 
Columbia Circuit in New York v. EPA, 443 F.3d 880 (D.C. Cir. 
2006), and concerning whether the United States should submit a 
petition for a writ of certiorari to the Supreme Court with 
respect to that decision. I had no decisionmaking authority 
with respect to either decision, as the Office of the Solicitor 
General at the Department of Justice has the authority to 
decide whether to seek rehearing and whether to file a petition 
for a writ of certiorari with the Supreme Court.

    Question 3a. The regulatory dockets for EPA's mercury rules 
(Docket OAR-2002-0056 and legacy Docket ID No. A-92-55) 
(``Mercury Rules'') include handwritten edits, comments and 
inserts that you submitted on EPA's draft mercury rule 
proposal. Your comments were submitted by facsimile and e-mail 
to Bill Wehrum at EPA in December 2003.
    What role did you play relating to the development of the 
policies and legal interpretations reflected in the Mercury 
Rules?
    Response. I joined the Department of Energy in March 2002, 
as deputy general counsel for energy policy, and prior to that 
time was engaged in the private practice of law. I did not 
participate in the development of the 2001 National Energy 
Policy, which among other things called for an approach to 
pollutant emissions that ``would establish a flexible, market-
based program to significantly reduce and cap emissions of 
sulfur dioxide, nitrogen oxides, and mercury from electric 
power generators.'' This multi-pollutant approach to air 
pollution controls subsequently developed particularly in the 
form of the Administration's Clear Skies initiative, which I 
believe was announced in February 2002. I did not play any part 
in the development of that legislative initiative.
    To the best of my recollection, my involvement with the 
proposed and final Revision of the December 2000 Regulatory 
Finding concerning the listing of coal--fired and oil-fired 
electric utility steam generating units under section 112 of 
the Clean Air Act, and the rule setting performance standards 
pursuant to section III of the Clean Air Act for new coal-fired 
electric utility steam generating units and establishing a 
voluntary cap and trade program for new and existing coal-fired 
units (together, the ``Clean Air Mercury Rule'' or ``CAMR''), 
which were proposed by EPA in December 2003 and finalized in 
March 2005, began in 2003 when I participated along with other 
DOE personnel in reviewing, during the interagency review 
process, the draft notice of proposed rulemaking that had been 
prepared by EPA. I participated in that interagency review 
process on the proposed rulemaking, as well as the interagency 
review process leading up to the issuance of the final 
rulemaking in 2005, and EPA's final action on reconsideration 
issued in May 2006. My involvement in those processes was 
premised on the policy choices that had been made by others as 
to the direction of and policy objectives to be pursued in 
CAMR. During those meetings and discussions, I represented DOE 
and expressed the Department's views on relevant policy or 
legal matters. To the best of my recollection, I was neither 
asked nor did I volunteer my personal opinion as to that 
direction and those policy objectives.

    Question 3b. Were you in support of the policies and legal 
interpretations reflected in the Mercury Rules? If so, describe 
in detail the reasons why you supported them.
    Response. The Department of Energy generally supported the 
policy objectives that were advanced by EPA in the Clean Air 
Mercury Rule proposed in 2003 and finalized in 2005. CAMR would 
have reduced utility mercury emissions by nearly 70 percent 
from 1990 levels. When issuing CAMR, the EPA noted that the 
rule marked the first time the United States ever had regulated 
any level of mercury emissions from power plants.
    My participation in the interagency review process involved 
representing, along with other Department officials, DOE's 
energy policy concerns. I do not recall developing or 
expressing a personally held view as to the policies reflected 
in CAMR, or as to the legal judgment by EPA that its course of 
action was legally permissible. It is possible I did so, but if 
so I do not recall it.

    Question 3c. In addition to submitting written comments on 
the Mercury Rules to EPA, did you participate in meetings or 
calls with Mr. Wehrum or others at EPA regarding the rule?
    Response. As noted in response to question 3a., part of my 
work as DOE's deputy general counsel for energy policy, and 
subsequently as the Department's general counsel, involved 
participation in the interagency review process for various 
regulations, including the EPA's proposed and final rulemaking 
actions on the Clean Air Mercury Rule. That participation 
included meetings or call with Bill Wehrum--then a senior 
official in EPA's Office of Air and Radiation and whose 
official duties included work on the Clean Air Mercury Rule--
and others at EPA regarding the proposed and final regulations 
issued by EPA in 2003 and 2005, respectively.

    Question 3d. If you do not have records relating to 
particular instances of participation, then provide your best 
recollection of the content of any such participation, 
including but not limited to (a) the issues discussed at each 
meeting, conversation, or exchange of information, and (b) the 
dates or over what time period they occurred.
    Response. I do not have a specific recollection or personal 
records of particular interagency meetings or particular 
conversations during the interagency review process for the 
proposed and final CAMR. That activity occurred several years 
ago. Both in the interagency review process as well as in 
discussions internally at DOE among Department personnel, I 
believe that at various times those discussions likely covered 
the range of energy policy issues addressed in EPA's notice of 
proposed rulemaking and notice of final rulemaking on the Clean 
Air Mercury Rule.

    Question 3e Other than documents placed in any public 
rulemaking docket, provide copies of all other documents in 
DOE's or your possession or control relating to your 
involvement in these matters.
    Response. To the best of my knowledge, I have no documents 
in my possession or control that are responsive to this 
request. For purposes of this response, what is in my 
possession or control refers only to what is in my possession 
or control in my personal capacity. I do not, in my personal 
capacity, have possession of or control over any official 
Department of Energy documents or records.

    Question 4a. Did you provide views or input on the 
substance of the Mercury Rules during these meetings and calls?
    What substantive views or input did you provide? Describe 
in detail.
    Response. See response to Question 3a.

    Question 4b. Did you harbor or express any concerns about 
the legal risks associated with the statutory interpretations 
advanced by EPA in these rulemakings? If so, what were those 
concerns and how did you express them?
    At various points during the interagency review process for 
EPA's proposed and final Clean Air Mercury Rule, I recall that 
there were discussions concerning the legal grounding for the 
regulations, and concerning the preamble explanation for the 
regulations. I, and I believe other executive branch officials 
participating in the interagency review process, understood and 
discussed that, despite favorable Supreme Court guidance in the 
Court's decision in Chevron U.S.A., Inc. v. Natural Resources 
Defense Council, Inc., 467 U.S. 837 (1984), concerning 
deference to agency interpretations in its rulemaking actions 
of statutes that the agency is charged by law to implement, 
there could be legal challenges to the final rules, and 
understood that there were legal risks associated with the 
regulations. I do not recall specific times, dates, or content 
of particular discussions on those matters, but I do remember 
generally that discussions on those topics occurred. And, of 
course, there was a public discussion of legal bases for the 
proposed and final regulations set forth in the preambles for 
the proposed and final Clean Air Mercury Rule, and I am sure 
that I participated in discussions on that text, though again I 
do not recall specific dates or times.

    Question 4c. Did any other lawyers in DOE's Office of 
General Counsel submit edits, comments or inserts to EPA with 
respect to the proposed Mercury Rules, at your direction or 
with your knowledge or participation?
    Response. I do not recall any other lawyers in DOE's Office 
of the General Counsel submitting edits, comments or inserts to 
EPA with respect to EPA's proposed Clean Air Mercury Rule, at 
my direction or with my knowledge or participation. However, 
there were non-lawyer professionals at the Department of 
Energy, outside of the Office of the General Counsel, who did 
so.

    Question 4d. If so: (a) identify each such lawyer by name 
and title and (b) State whether you reviewed such comments 
prior to transmittal to or discussion with EPA.
    Response. See response to Question 4c.

    Question 4e. Other than materials placed in any public 
rulemaking docket, provide copies of all documents in DOE's or 
your possession or control relating to your involvement in 
these matters.
    Response. To the best of my knowledge, I have no documents 
in my possession or control that are responsive to this 
request. For purposes of this response, what is in my 
possession or control refers only to what is in my possession 
or control in my personal capacity. I do not, in my personal 
capacity, have possession of or control over any official 
Department of Energy documents or records.

    Question 5a. Press articles reported that EPA included 
within the Mercury Rule preambles verbatim passages and 
similarly worded passages (``language'') apparently written or 
supplied by a utility industry law firm, Latham & Watkins. EPA 
says those documents--written as EPA preamble text--originated 
from your office, DOE's Office of General Counsel. A December 
10, 2003 email and attachment from DOE to EPA reveals that 
Darlene Downing sent the Latham & Watkins language to EPA.
    Did you provide Ms. Downing with the Latham & Watkins 
language, or were you otherwise aware of this language?
    Response. I am aware of Washington Post articles in 2004 
that asserted that EPA had taken language from a document 
prepared by the Latham & Watkins law firm and incorporated it 
into EPA's December 2003 Clean Air Mercury Rule proposal. 
However, to the best of my knowledge and recollection, I never 
personally and knowingly took language from a document supplied 
by Latham & Watkins and provided it to Darlene Downing, an 
employee of the Department of Energy's Office of the General 
Counsel in 2003, for transmission to EPA. Nor do I remember 
ever instructing anyone else to do so or being aware that 
anyone else at DOE had done so. Please also see the response to 
Question 5c.

    Question 5b. Did anyone else in the DOE General Counsel's 
office provide Ms. Downing with the Latham & Watkins language?
    I do not know whether anyone else in DOE's Office of the 
General Counsel provided Ms. Downing with language taken from a 
document supplied by Latham & Watkins. As stated in response to 
Question 5.a., I do not remember instructing anyone else to 
submit such language to Ms. Downing, nor do I remember being 
aware that anyone else at DOE had done so.

    Question 5c. Was it you that received the language directly 
or indirectly from Latham & Watkins? If so, please describe the 
circumstances of this receipt.
    Response. At various times during my service as the 
Department of Energy's deputy general counsel for energy 
policy, and as DOE's general counsel, I have met with attorneys 
from outside law firms, companies, public interest 
organizations, trade associations, and other stakeholders, and 
at some of those meetings have received materials supplied by 
those entities. I do not specifically recall meeting with 
attorneys from Latham & Watkins concerning EPA's CAMR, but it 
is possible that I did so. I do recall having meetings with 
Latham & Watkins attorneys, but do not remember the precise 
topics. I also do not recall receiving any particular documents 
from the Latham & Watkins attorneys or what those documents 
might have addressed, but it is possible that I did receive 
documents from them during the referenced meetings. Finally, 
and as noted above in response to Question 5.a., to the best of 
my knowledge and recollection, I never personally and knowingly 
took language from a document supplied by Latham & Watkins and 
provided it to Darlene Downing, an employee of the Department 
of Energy's Office of the General Counsel in 2003, for 
transmission to EPA.

    Question 5d. If not, who else within the General Counsel's 
office received it?
    Response. Other than myself, I have no knowledge who if 
anyone within the DOE General Counsel's Office may have met 
with attorneys from Latham & Watkins concerning EPA's Clean Air 
Mercury Rule, or who in the General Counsel's Office or in 
other offices at DOE might have received any documents from 
that firm.

    Question 5e. Did you ask Ms. Downing to send the Latham & 
Watkins language to EPA? If not, who else within the General 
Counsel's office so instructed Ms. Downing?
    Response. To the best of my knowledge and recollection, I 
never instructed Ms. Downing to send to EPA any language that I 
knew had been taken from a document supplied by Latham & 
Watkins. I have no knowledge of anyone else in the General 
Counsel's Office instructing Ms. Downing to send any language 
or documents to the EPA concerning the EPA's mercury rule. I 
note, however, that I was not the only person at DOE who 
participated in the interagency review process with respect to 
EPA's proposed and final Clean Air Mercury Rule. It is quite 
possible that any language, edits or other materials submitted 
by Ms. Downing to EPA was comprised of contributions and 
materials written by or originating from more than one person 
at DOE, including non-lawyer professionals.

    Question 5f. Other than materials placed in any public 
rulemaking docket, provide copies of all documents in DOE's or 
your possession or control relating to this process and issue.
    Response. To the best of my knowledge, I have no documents 
in my possession or control that are responsive to this 
request. For purposes of this response, what is in my 
possession or control refers only to what is in my possession 
or control in my personal capacity. I do not, in my personal 
capacity, have possession of or control over any official 
Department of Energy documents or records.

    Question 6a. As of December 2003:
    What position did Ms. Downing hold with DOE's Office of 
General Counsel, what were Ms. Downing's responsibilities, and 
to whom did she report?
    Response. As of December 2003, Ms. Downing held the 
position of Paralegal and Administrative Support Specialist 
within DOE's Office of the General Counsel. Her duties 
consisted of providing program and administrative support to 
the organization and performing a variety of non-professional 
functions to assist the staff. She reported to the deputy 
general counsel for energy policy.

    Question 6b. Did Ms. Downing have discretion to submit her 
own comments or inserts to EPA without review or approval by a 
lawyer within the General Counsel's office?
    Response. During the time that I served as deputy general 
counsel for energy policy and as Ms. Downing's direct 
supervisor, I do not recall authorizing her to submit her own 
comments or inserts to EPA without review or approval by a 
lawyer within the Department's Office of the General Counselor 
other appropriate Department of Energy official.

    Question 6c. If not, who in the General Counsel's office 
reviewed or approved the language submitted to EPA by Ms. 
Downing? What role did you play in that process?
    Response. During the time that I served as deputy general 
counsel for energy policy and as Ms. Downing's direct 
supervisor, I believe Ms. Downing would have submitted 
information or language to the EPA with respect to a particular 
rulemaking only in response to direction or authorization from 
either me or another DOE official who she believed was 
authorized to ask her to provide such information to EPA.

    Question 6d. Were you aware that Ms. Downing was submitting 
comments or inserts to EPA?
    Response. See responses to Questions 5.a. and 6.c.

    Question 6e. Provide copies of all documents in DOE's or 
your possession or control relating to Ms. Downing's role in 
this time period.
    Response. To the best of my knowledge, I have no documents 
in my possession or control that are responsive to this 
request. For purposes of this response, what is in my 
possession or control refers only to what is in my possession 
or control in my personal capacity. I do not, in my personal 
capacity, have possession of or control over any official 
Department of Energy documents or records.

    Question 7a. EPA officials have said that including the 
language from Latham & Watkins in the preamble to the Mercury 
Rule would not have been included this language had they known 
it originated with an industry law firm. Do you believe that 
inclusion of this language in the EPA preamble was 
inappropriate?
    Response. As stated in response to Question 5.a., I am 
aware of Washington Post articles in 2004 that asserted that 
EPA had taken language from a document prepared by the Latham & 
Watkins law firm and incorporated it into EPA's December 2003 
CAMR proposal. I recall meeting with attorneys from that law 
firm at various times since I joined the Department of Energy 
in March 2002, and while I do not recall the topics of those 
meetings, it is possible that one or more of them concerned 
EPA's proposed or final Clean Air Mercury Rule. However, and 
also as noted in response to questions above, to the best of my 
knowledge and recollection, I never personally and knowingly 
took language from any Latham & Watkins document and proposed 
it to EPA for inclusion in the CAMR notice of proposed 
rulemaking, nor do I have any knowledge or recollection about 
any other DOE employee doing so. Regardless, documents received 
by an agency from outside groups representing parties 
interested in particular agency actions--including individuals, 
law firms, companies, public interest organizations, trade 
associations, and other stakeholders--may be sources of useful 
information for agency officials. I believe that if an agency 
finds the language or reasoning in a document supplied by an 
outside organization to be well-reasoned and persuasive, there 
is nothing wrong with the agency considering and using language 
or analysis in that document, particularly when the document 
has been placed in the public docket for the agency action at 
issue. Indeed, the purpose of receiving public comment on 
proposed rules is so that agencies involved in the rulemaking 
process can learn from non-governmental parties, and use that 
information as they evaluate relevant policy, legal, technical 
or scientific information to inform agency decisions.

    Question 7b. Did you participate in meetings with lawyers 
from the firm of Latham & Watkins, or any other private law 
firm, relating to EPA regulation of air pollution (not limited 
to mercury) during the period from 2002 through 2007? List all 
such meetings that you attended. For each meeting, state: (a) 
the attendees of the meeting, including all executive branch 
personnel, by name and agency, and (b) the subject matter of 
the meeting. Provide copies of all documents in your or DOE's 
possession or control that were provided by Latham & Watkins or 
any other law firm relating to EPA rulemaking during this 
period, and provide all DOE documents that relate to any such 
meetings.
    At various times during my service as the Department of 
Energy's deputy general counsel for energy policy and as DOE's 
general counsel, I have met with attorneys from outside law 
firms, companies, public interest organizations, trade 
associations, and other stakeholders, concerning numerous 
matters involving official DOE business, including the 
interagency review of EPA regulations concerning air pollution. 
I do not have records of all such meetings nor do I have a 
complete recollection of all of those meetings, such that I 
could create and supply the requested list of all such 
meetings, all attendees of those meetings, and all subjects 
discussed at such meetings.
    With respect to the document request portion of this 
question, to the best of my knowledge, I have no documents in 
my possession or control that are responsive to this request. 
For purposes of this response, what is in my possession or 
control refers only to what is in my possession or control in 
my personal capacity. I do not, in my personal capacity, have 
possession of or control over any official Department of Energy 
documents or records.

    Question 8a. In February 2008, the D.C. Circuit overturned 
the Mercury Rules.
    Do you believe the court erred in its decision, including 
the Court's statutory interpretations and its treatment of 
EPA's legal arguments?
    Response. On February 8, 2008, the U.S. Court of Appeals 
issued an opinion in the case of State ofNew Jersey v. EPA, 517 
F.3d 574 (D.C. Cir. 2008), in which the Court held that EPA's 
removal of electric utility steam generating units from the 
list under section 112 of the Clean Air Act violated the Act 
``because section 112(c)(9) requires EPA to make specific 
findings before removing a source listed under section 112,'' 
and EPA had not done so. Because these units therefore remain 
listed under section 112, the Court stated that EPA could not 
regulate existing coal-fired electric utility steam generating 
units under section III of the Clean Air Act. Therefore, the 
Court vacated both EPA's revision of its December 2000 
regulatory finding concerning the listing of these units under 
section 112, and also the performance standards that were 
established pursuant to section III and the voluntary cap and 
trade program for new and existing coal-fired units. I have not 
evaluated the Court's February 8,2008, decision for the purpose 
of deciding whether I personally agree or disagree with the 
Court. Rather, I have reviewed the decision to understand the 
Court's decision and its reasoning, for purposes of guiding 
future action.

    Question 8b. Do you believe that the legal interpretations 
advanced by EPA were defensible? At the time of your 
involvement with EPA's proposed and final Mercury Rules, did 
you believe that those legal interpretations would prevail?
    Response. At the time the proposed and final CAMR 
regulations were issued by EPA, I was DOE's deputy general 
counsel for energy policy, and my participation in the 
interagency review process involved representing, along with 
other Department officials, DOE's energy policy concerns. I do 
not remember being called upon to offer a personally held view 
on the legal defensibility of those regulations. I also do not 
recall formulating a personally held view as to their legal 
defensibility, or about the probability of EPA prevailing in 
litigation if the regulations were challenged. It is possible I 
did so, but if so I do not recall it. As noted in response to 
earlier questions, however, I did participate on DOE's behalf 
in some discussions on legal and policy aspects of those 
regulations.

    Question 8c. Did you play any role in the administration's 
discussions and decisions to seek rehearing en bane of the D.C. 
Circuit's mercury ruling? If so, please describe your role. 
Other than materials placed in any public rulemaking docket, 
provide copies of all documents in DOE's or your possession or 
control relating to this matter.
    Response. I played no role in the Administration's 
discussions and decisions to seek rehearing en banc of the 
February 8, 2008, decision of the U.S. Court of Appeals for the 
D.C. Circuit in the case of State a/New Jersey v. EPA, 517 F.3d 
574 (D.C. Cil. 2008), which concerned the EPA's Clean Air 
Mercury Rule.
    With respect to the document request portion of this 
question, to the best of my knowledge, I have no documents in 
my possession or control that are responsive to this request. 
For purposes of this response, what is in my possession or 
control refers only to what is in my possession or control in 
my personal capacity. I do not, in my personal capacity, have 
possession of or control over any official Department of Energy 
documents or records.

    Question 9a. You testified at the Nomination Hearing on 
April 11 that you have been involved in issues relating to the 
proposed Yucca Mountain nuclear waste repository.
    Response. What role have you played while at DOE (2002-
present) with respect to the radioactive waste storage site at 
Yucca Mountain and the shipping of radioactive waste from 
around the country to this site?
    As deputy general counsel for energy policy at DOE, my 
responsibilities generally did not include matters relating to 
the Yucca Mountain project. As a result, from the time I joined 
the Department in March 2002 until I became DOE's general 
counsel in August 2005, I had very limited involvement with 
matters concerning the Yucca Mountain project or the shipping 
of radioactive waste from around the country to that site. 
Since becoming DOE's general counsel, I have participated in a 
number of Department activities relating to the Yucca Mountain 
project, including the following: participation in discussions 
among senior DOE officials concerning various aspects of the 
Yucca Mountain project; general supervisory responsibility for 
the DOE lawyers performing work relating to the Yucca Mountain 
project particularly in connection with the preparation of a 
license application to file with the Nuclear Regulatory 
Commission (NRC) relating to the repository; participation in 
the selection of outside legal counsel to assist the Department 
in connection with the NRC licensing proceeding for the Yucca 
Mountain project; participation in the interagency review 
process for the regulations that EPA must promulgate, pursuant 
to the Energy Policy Act of 1992, setting a radiation standard 
for the Yucca Mountain repository; and participation in the 
development of and interagency review process for 
Administration legislative proposals relating to the Yucca 
Mountain project.

    Question 9b. In your tenure with DOE has DOE supported the 
Yucca Mountain project?
    Response. In 2002, Congress passed and the President signed 
a Joint Resolution, enacted as Public Law 107-200, which 
approved the site at Yucca Mountain, Nevada for the development 
of a repository for spent nuclear fuel and high level 
radioactive waste, pursuant to the Nuclear Waste Policy Act of 
1982 (NWPA). As a result of that approval, DOE is required by 
law--specifically, section 114(b) of the NWPA-to prepare and 
submit to the NRC a license application seeking authority to 
construct the repository at Yucca Mountain. DOE has been 
engaged in that effort since Public Law 107-200 was enacted in 
July 2002. My work at DOE in connection with the Yucca Mountain 
project has been in furtherance of this obligation which is 
imposed by law upon the Department of Energy.

    Question 9c. List and describe all activities you have been 
involved in at DOE in support of the Yucca Mountain project.
    Response. See response to Question 9.a.

    Question 9d. Have you had any involvement in EPA's process 
for setting standards for radioactive waste disposal at Yucca 
Mountain? If so, describe in detail all of your activities 
relating to those standards.
    Response. During my time as DOE's general counsel, I have 
at various points participated in the interagency review 
process for the regulations that EPA must promulgate, pursuant 
to the Energy Policy Act of 1992, setting a radiation standard 
for the Yucca Mountain repository. My involvement has centered 
on representing the Department of Energy as it seeks to carry 
out its statutory obligations and policy objectives with 
respect to the Yucca Mountain repository.

    Question 9e. What role have you played in making 
recommendations or providing comments to EPA, NRC, the White 
House, or any other executive branch office or staff with 
regard to the Yucca Mountain radiation standards?
    Response. See responses to Questions 9.a. and 9.d.

    Question 9f. In your opinion what approach should be taken 
by EPA regarding Yucca Mountain radiation standards following 
the D.C. Circuit's decision in Nuclear Energy Institute, Inc. 
v. U.S. EPA, 373 F.3d 1251 (D.C. Circuit 2004).
    Response. As I stated at my confirmation hearing before the 
Environment and Public Works Committee on April 10, 2008, the 
EPA radiation standard for Yucca Mountain is still under 
consideration and has not yet been finalized, and as a result 
it would be inappropriate for me to comment on the discussions 
and deliberations within the Executive Branch on that matter at 
this time.

    Question 9g. You committed at your nomination hearing 
before the EPW Committee on April 10, 2008, to determine what 
documents exist reflecting DOE comments or views that you have 
been involved with regarding EPA's approach to radiation 
standards for Yucca Mountain. Provide a list of each such 
document (including author, recipient(s), ccs, and subject 
matter) and provide copies of all such documents to the 
Committee.
    Response. I have determined that there are official 
Department of Energy documents that concern the ongoing 
rulemaking activity with respect to the regulations that EPA 
must promulgate, pursuant to the Energy Policy Act of 1992, 
setting a radiation standard for the Yucca Mountain repository. 
However, and as I stated at my confirmation hearing before the 
Environment and Public Works Committee on April 10,2008, the 
EPA radiation standard for Yucca Mountain is still under 
consideration and has not yet been finalized, and as a result 
it would be inappropriate to describe or address documents that 
are the subject of those discussions and deliberations within 
the executive branch on that matter at this time. Furthermore, 
to the best of my knowledge, I have no documents in my 
possession or control that are responsive to this request. For 
purposes of this response, what is in my possession or control 
refers only to what is in my possession or control in my 
personal capacity. I do not, in my personal capacity, have 
possession of or control over any official Department of Energy 
documents or records.

    Question 9h. In addition to the documents provided in 
response to question (g) above, provide copies of all documents 
in DOE's or your possession or control relating to your 
involvement in the Yucca Mountain matter, other than materials 
previously placed in any public rulemaking docket.
    Response. See response to Question 9.g.

    Question 10a. The fiscal year 0S Defense Appropriations 
Bill included Section 3116, which modified requirements and 
procedures for addressing disposal of radioactive waste from 
DOE disposal sites. Section 3116 allowed DOE to ``reclassify'' 
high-level radioactive waste as ``waste incidental to 
reprocessing,'' followed by shallow land disposal at those 
sites.
    Did DOE support Section 3116, and did DOE submit drafts of 
Section 3116 to Congress?
    Response. This question refers to section 3116 of the 
``FY2005 Defense Appropriations Bill.'' I assume the question 
is in error, because it was the fiscal year defense 
authorization act that contained a section 3116 applicable to 
waste incidental to reprocessing--specifically section 3116, 
entitled Defense Site Acceleration Completion, in the Ronald W. 
Reagan National Defense Authorization Act for FY 2005 (P.L. 
108-375, enacted October 28, 2004). Section 3116 authorizes the 
Secretary of Energy, in consultation with the NRC, to determine 
that radioactive waste in tanks has been removed to the maximum 
extent practical and the remaining residual material can be 
safely disposed of by means other than deep geologic disposal.
    During congressional consideration of the fiscal year 
defense authorization act, I served as DOE's deputy general 
counsel for energy policy, and my duties generally did not 
include matters relating to treatment, removal or disposal of 
radioactive waste at Department of Energy sites. As a result, 
and to the best of my recollection, I did not have any role nor 
did I participate in the Department of Energy's activities in 
connection with Congress's consideration and ultimate passage 
of section 3116 of the fiscal year defense authorization act. I 
did hear some discussions concerning that matter, and believe 
DOE did support section 3116. I also believe DOE officials may 
have worked with Members of Congress on that provision, but I 
do not have personal knowledge of who had what conversations 
with Members of Congress or their staffs on that matter, or 
what drafts or papers may have been submitted by DOE officials 
to Members of Congress or their staffs concerning this issue.

    Question 10b. Did DOE have meetings or conversations with 
Members of Congress regarding Section 3116?
    Response. See response to Question 10a.

    Question 10c. Were you involved in any of the activities 
relating to Section 3116 addressed in the questions above? If 
so, describe in detail your role relating to those activities.
    Response. See response to Question 10a.

    Question 10d. Other than materials placed in any public 
rulemaking docket, provide copies of all documents in DOE's or 
your possession or control relating to your involvement in 
these activities.
    Response. To the best of my knowledge, I have no documents 
in my possession or control that are responsive to this 
request. For purposes of this response, what is in my 
possession or control refers only to what is in my possession 
or control in my personal capacity. I do not, in my personal 
capacity, have possession of or control over any official 
Department of Energy documents or records.

    Question 11a. As part of Section 3116 and DOE's new 
authority to reclassify high-level radioactive waste and 
dispose of it at two DOE sites, Congress explicitly provided 
for the NRC's monitoring role for the reclassified high-level 
waste's compliance with low-level waste disposal objectives (10 
CFR Part 61). On July 31,2006 you sent a letter to the Nuclear 
Regulatory Commission (NRC) on behalf of DOE in which you said 
that DOE did not agree with NRC's proposed Standardized Review 
Plan under Section 3116 for consulting and monitoring of DOE's 
management and disposal of reclassified high-level radioactive 
waste. There are numerous press reports about the controversial 
nature of Section 3116 and of disagreement between the NRC 
Staff and DOE Staff over the respective roles of the two 
agencies.
    One of the major issues you raised in your letter of July 
31, 2006 was that NRC wanted to make documents relating to its 
consultation with DOE publicly available, and NRC felt its 
meetings with DOE relating to this should be open to the 
public. You disagreed with NRC's positions. The press reported 
that DOE insisted on having closed door meetings to define the 
scope of NRC's role, over NRC's objection. What is your 
justification for wanting to shield such important matters from 
public scrutiny?
    Response. The letter that I, on behalf of the Department of 
Energy, sent to the Nuclear Regulatory Commission (NRC) in July 
2006 expressed concerns with certain aspects of the NRC's 
proposed Standardized Review Plan and how it related to the 
authorities granted by law to the Department of Energy pursuant 
to section 3116 of the fiscal year defense authorization act. 
The letter did not assert that all discussions between DOE and 
NRC relating to the section 3116 process should occur in 
``closed door meetings.'' Rather, the letter expressed DOE's 
position that it would be appropriate for some discussions 
between the agencies, concerning the section 3116 process, to 
occur in a non-public setting. It is perfectly appropriate for 
executive branch agencies to have discussions on some matters 
in a non--public setting. In fact, even the Freedom of 
Information Act itself contains an exemption from disclosure 
for documents that are predecisional and deliberative or that 
are developed for use during such deliberations. The 
justification for the position stated in the July 2006 letter 
is that it can promote free and frank discussion among 
government officials if certain discussions are not made in 
public. This is the substance of what I stated before the 
Committee on Environment and Public Works, in response to 
questions concerning this matter, during my confirmation 
hearing on April 10, 2008.

    Question 11b. Do yon believe that people have a right to 
know what their government representatives are discussing when 
it comes to leaving highly radioactive nuclear waste disposed 
of in shallow land burial at DOE sites?
    Response. I do not believe that any ``highly radioactive 
nuclear waste'' should be ``disposed of in shallow land 
burial,'' either at DOE sites or elsewhere. I have been 
informed that the tank residue material subject to disposal 
under section 3116 of the FY 2005 defense authorization act is 
not highly radioactive, even though its process pedigree once 
arguably made it ``high-level'' waste within the normal meaning 
and understanding of what constitutes ``high-level'' 
radioactive waste.
    Section 3116 authorizes DOE, in consultation with the NRC, 
to classify tank waste residues at DOE's sites in South 
Carolina and Idaho as other than high-level waste, upon making 
certain determinations, including that the waste ``does not 
require permanent isolation in a deep geological repository.'' 
These matters are highly technical and subject to the 
specialized knowledge and expert judgment of DOE and the NRC. I 
believe that the public generally has a right to know what the 
Federal Government is doing with respect to the disposal of 
radioactive waste at or in connection with DOE sites and 
operations, but that does not mean it is productive or 
appropriate for every single discussion among Federal officials 
on that highly complex and technical subject to occur in 
public, just as not all discussions among executive branch 
officials or among Members of Congress, concerning matters of 
great importance to the general public and to the welfare of 
the Nation, occur in public. Finally, and while not required by 
section 3116, I note that DOE has committed to make its draft 
waste determinations pursuant to section 3116 available for 
public comment and takes these public comments into account 
before making final determinations.

    Question 11c. 1In a letter by Scott Flanders of NRC dated 
January 31, 2008, the NRC stated that there were seeps of 
radioactive waste from a vault at the Savannah River Site in 
the Saltstone Disposal Facility. On what date did you become 
aware of any seeps of radioactive waste from these vaults?
    Response. I have no personal knowledge of any seeps of 
radioactive waste from the vaults containing saltstone that 
exist at DOE's Savannah River Site. I am informed that this 
general issue has been well known and a matter of public record 
for a number of years. I also am informed that there are 
monitoring protocols in place, corrective actions have been 
taken, and design changes will be made to address these seeps. 
I further am informed that DOE's Savannah River Site has 
determined, and that the State of South Carolina agrees, that 
there are no significant environmental or human health impacts 
associated with any seeps from this Facility. Finally, I am 
informed that disposal actions at the Savannah River Site's 
Saltstone Disposal Facility are subject to routine oversight by 
the South Carolina Department of Health and Environmental 
Control under a state-issued industrial landfill permit and to 
monitoring by the Nuclear Regulatory Commission pursuant to 
section 3116. No legal issue has been brought to my personal 
attention as the Department's general counsel in connection 
with these issues or with the ongoing performance of the 
vaults.

    Question 11d. Did the DOE or you produce any internal 
responsive material or analysis of the leaking vaults?
    I have not created, reviewed or produced any internal 
responsive material or analysis concerning any seeps or leaks 
of radioactive waste from the vaults containing saltstone that 
exist at the Savannah River Site. I have been informed that 
analyses of the seeps have been completed by the Savannah River 
Site and shared with the NRC and the South Carolina Department 
of Health and Environmental Control during a recent NRC 
monitoring. Other than this information and what is described 
in response to Question 11c. above, I have no personal 
knowledge whether anyone else at DOE has produced internal 
responsive material or analysis concerning these seeps.

    Question 11e. Has DOE provided that material for the NRC, 
to the State of South Carolina, or to the National Academy of 
Science's panel that undertook a review and study of the safety 
of DOE's efforts to reclassify high-level radioactive waste?
    Response. See response to Question IId.

    Question 11f. Has DOE made any of its analysis of the 
leaking vaults public in any way?
    Response. As noted above, I have no personal knowledge of 
any seeps of radioactive waste from the vaults containing 
saltstone that exist at the Savannah River Site. I have not 
created, reviewed or produced any materials concerning the 
operation of the vaults, nor am I aware of whether any such 
material exists that has been created by others, or if it 
exists, whether anyone at DOE has made any of its analysis of 
the vaults or their performance public in any way. I am 
informed, however, that the general issue has been briefed to 
the Savannah River Site's citizen's advisory board, and that 
this matter is well known to State of South Carolina 
regulators, non-governmental organizations, and the public. See 
also responses to Questions 11c. and 11d.

    Question 11g. Has the DOE or have you made a determination 
whether the highly radioactive waste disposed of at the 
Saltstone Disposal Facility is in compliance with the 
performance objectives of 10 C.F.R. Part 61.41? On what basis 
has DOE made that assessment?
    Response. As stated in response to Question 11b., I am 
informed that the material being disposed of at the Savannah 
River Site pursuant to section 3116 of the fiscal year 5 
defense authorization act is not ``highly radioactive.'' 
Regardless, to the best of my knowledge and recollection, I 
have made no determination whether the waste disposed of at the 
Saltstone Disposal Facility at DOE's Savannah River Site is in 
compliance with the performance objectives of 10 C.F.R. 61.41. 
I do not know whether or not anyone else at DOE has made such a 
determination. I am informed, however, that the Saltstone 
Disposal Facility is a low-level waste facility, and that no 
high level radioactive waste is disposed of in the Facility.

    Question 11h. Please provide all material, analysis, and 
documents related to the leaking vaults in the Saltstone 
Disposal Facility.
    Response. To the best of my knowledge, I have no documents 
in my possession or control that are responsive to this 
request. For purposes of this response, what is in my 
possession or control refers only to what is in my possession 
or control in my personal capacity. I do not, in my personal 
capacity, have possession of or control over any official 
Department of Energy documents or records.

    Question 12. You testified that you were involved with the 
drafting or review of S. 2589, the ``Nuclear Fuel Management 
and Disposal Act.'' Describe in detail your role and activities 
relating to that bill. Identify the positions DOE took in 
supporting S. 2589, and for each, State whether you agreed with 
that position. Provide copies of all DOE documents relating to 
this legislation.
    Response. As I testified before the Senate Environment and 
Public Works Committee at the April 10, 2008, hearing, I was 
involved in the development of and the interagency review 
process for the Administration's legislative proposal that 
Secretary Bodman submitted to the Congress on AprilS, 2006 and 
on March 6, 2007, and that was introduced by Senator Domenici 
and Senator Inhofe as S. 2589 on April 6,2006. The Department 
of Energy supported the Administration's proposal, and as the 
Department's general counsel, I represented the Department's 
views on legal and policy matters in the development and 
interagency review process for the proposal.
    To the best of my knowledge, I have no documents in my 
possession or control that are responsive to this request. For 
purposes of this response, what is in my possession or control 
refers only to what is in my possession or control in my 
personal capacity. I do not, in my personal capacity, have 
possession of or control over any official Department of Energy 
documents or records.

    Question 13. Provide copies of all testimony that you have 
provided to congressional Committees, or into which you had 
substantial input, during your tenure with DOE.
    Response. Other than my testimony before the Environment 
and Public Works Committee on April 10, 2008, concerning my 
nomination to be the general counsel of the Environmental 
Protection Agency, I have testified before Congress twice. Once 
was at my confirmation hearing to be the general counsel of the 
Department of Energy, which was held before the Senate 
Committee on Energy and Natural Resources on July 12, 2005. The 
other was on May 22,2007, before the Senate Committee on Energy 
and Natural Resources, concerning several bills then being 
considered by that Committee. My written and oral testimony on 
both occasions is publicly available on the website of the 
Senate Energy and Natural Resources Committee, http://
energy.senate.gov/public/.
    Other than my own testimony, I have on numerous occasions 
during my more than 6 years at the Department of Energy 
participated in reviewing, writing, editing or discussing 
testimony to be delivered to a congressional committee by a DOE 
official. This testimony has covered a broad range of topics. I 
do not recall with specificity all of the times that I have had 
substantial input on testimony since March 2002, and therefore 
I am unable to supply a list of or copies of all such 
testimony. I have maintained no personal record of the 
instances during which I have provided substantial input on 
testimony.

    Question 14. The EPW Committee held a hearing on the Yucca 
Mountain Project last October. In questions submitted for the 
record, I asked both DOE and EPA to send copies of all 
documents related to the agencies' communications regarding the 
EPA's draft Yucca Mountain radiation standards. In a letter 
dated January 23, 2008, DOE stated that it was conducting a 
search for all responsive documents related to this request. 
Please provide those documents to the Committee.
    Response. To the best of my knowledge, I have no documents 
in my possession or control that are responsive to this 
request. For purposes of this response, what is in my 
possession or control refers only to what is in my possession 
or control in my personal capacity. I do not, in my personal 
capacity, have possession of or control over any official 
Department of Energy documents or records.

    Question 15. In the January 23 letter mentioned above, DOE 
said that it will only provide ``nonprivileged'' documents. 
What communications between the agencies would be considered 
``privileged'' and why? Provide with your responses a detailed 
log of all items responsive to my January 23 letter asserted to 
be privileged, including for each document, the date; author; 
recipients; ccs; subject matter; attachments; and type of 
privilege asserted to protect such document from disclosure to 
this Committee.
    Response. I have not personally been involved in conducting 
the searches for documents responsive to the referenced request 
and am unable to provide an update on the current status of the 
Department's response to that request. Moreover, to the best of 
my knowledge, I have no documents in my possession or control 
that are responsive to this request. For purposes of this 
response, what is in my possession or control refers only to 
what is in my possession or control in my personal capacity. I 
do not, in my personal capacity, have possession of or control 
over any official Department of Energy documents or records.

    Question 16. List all EPA rulemakings in which you have had 
any role during your tenure with DOE, and describe your role 
and the substance of the recommendations or comments you 
provided for each.
    Response. From the time I joined the Department of Energy 
in March 2002 as deputy general counsel for energy policy, to 
the present in my capacity as the Department's general counsel, 
I have participated on behalf of DOE in the interagency process 
for a number of EPA rulemakings. During these processes, I have 
represented the Department of Energy and expressed the 
Department's views on relevant energy policy or legal matters, 
depending on the substance of the particular rulemaking at 
issue. The level of my personal participation in connection 
with these interagency processes has varied greatly from time 
to time and between different rulemakings, depending on the 
Department's policy interests and views with respect to the 
rulemaking activity, competing demands placed on me in 
connection with other Department of Energy business, and the 
ability of others at DOE to be involved in the review process. 
I do not have a complete record or recollection of all EPA 
rulemakings in which I might have had ``any role'' during the 
last 6 years, but I know that I have been involved in the 
interagency process for at least the following EPA rulemakings: 
Clean Air InterState Rule (70 Fed. Reg. 25162 (May 12, 2005)), 
Clean Air Mercury Rule (70 Fed. Reg. 28606 (May 18, 2005)), 
various New Source Review rules (including 67 Fed. Reg. 80186 
(Dec. 31, 2002) and 68 Fed. Reg. 61248 (Oct. 27, 2003)), 
Proposed National Pollutant Discharge Elimination System 
(NPDES) General Permit for Storm Water Discharges from 
Construction Activities (67 Fed. Reg. 78116 (Dec. 20, 2002)), 
and the proposed radiation standard for the Yucca Mountain 
repository (70 Fed. Reg. 49014 (Aug. 22,2005)).

    Question 17. Other than your experience participating in 
inter-agency review of EPA rulemakings such as those discussed 
in your responses to the questions above, describe each 
instance in which you have had direct experience in 
implementing, complying with or enforcing the environmental 
statutes listed below. For each instance, provide details 
regarding (a) the client (or provide general company and 
industry description) you represented, (b) timeframe of 
activity, and (c) nature of activity. Ifyou do not have, or 
cannot recall, such direct experience for one or more of the 
listed statutes, State for each: ``NONE.''

    a. Clean Air Act
    b. Coastal Zone Management Act
    c. Comprehensive Environmental Response, Compensation and 
Liability Act
    d. Emergency Planning and Community Right-to-Know Act
    e. Endangered Species Act
    f. Federal Insecticide, Fungicide, and Rodenticide Act
    g. Federal Water Pollution Control Act
    h. Oil Pollution Act
    i. Resource Conservation and Recovery Act
    j. Safe Drinking Water Act
    k. Solid Waste Disposal Act
    l. Toxic Substances Control Act

    Since March 2002, I have been employed at the Department of 
Energy, first as deputy general counsel for energy policy, and 
since August 2005, as the Department's general counsel. During 
my time as general counsel, I have had overall responsibility 
for all legal matters handled by or affecting the Department, 
and have been professionally responsible for the work of more 
than 250 lawyers throughout the country, including the 
Department's attorneys who handle or are involved with 
environmental matters.
    With respect to the environmental statutes listed above, 
DOE generally is subject to the major environmental statutes in 
the same manner as any other regulated entity, with certain 
limited exceptions (primarily arising due to DOE's 
responsibilities under the Atomic Energy Act of 1954, or due to 
the application of the doctrine of sovereign immunity in 
specific situations). Consequently, DOE primarily is in the 
posture of complying with, rather than enforcing or 
implementing, the listed environmental statutes. For example, 
DOE facilities are subject to the regulatory and permitting 
provisions of the Clean Air Act, including EPA regulations 
addressing air emissions of hazardous air pollutants. DOE is 
also subject to the Clean Water Act's provisions relating to 
the discharge of dredged and fill material and many DOE 
facilities have National Pollutant Discharge Elimination System 
(NPDES) permits. DOE facilities are also subject to the 
regulatory and permitting requirements of the Resource 
Conservation and Recovery Act (RCRA), and RCRA provisions with 
respect to the regulation of solid wastes, hazardous wastes, 
and underground storage tanks affect DOE operations. In 
addition, a number of DOE facilities are undertaking cleanups 
pursuant to RCRA corrective action requirements. DOE site 
activities must also be consistent with the Emergency Planning 
and Community Right-to-Know Act, the Endangered Species Act, 
the Oil Pollution Act, the Safe Drinking Water Act, and the 
Toxic Substances Control Act. As the Department of Energy's 
general counsel, I have worked extensively with other DOE 
attorneys with respect to a wide range of these environmental 
matters, and particularly with regard to CERCLA and RCRA 
issues. In addition, these environmental statutes often are 
implicated in DOE's analyses with respect to the National 
Environmental Policy Act of 1969 (NEPA), and since 2006 I have 
had responsibility for the work of the Department's Office 
ofNEPA Policy and Compliance, and have worked with officials in 
that office and exercised approval authority with respect to 
certain DOE Environmental Impact Statements and other NEPA 
documents and analyses. Finally, I have participated in policy 
discussions relating to the Safe Drinking Water Act, 
particularly with respect to permitting pursuant to the 
underground injection control program, and relating to the 
Coastal Zone Management Act, particularly with respect to 
appeals to the Secretary of Commerce relating to certain 
consistency determinations by State authorities, and also with 
respect to general CZMA matters relating to the permitting and 
development of energy--related facilities.
    To the best of my knowledge, I do not have any personal 
records that would provide the requested complete and detailed 
record of my work while in private practice in connection with 
the listed environmental statutes. As noted above, I have been 
employed at the Department of Energy since March 2002, and 
prior to that date was engaged in private practice and also 
worked for a time as an associate counsel on the staff of the 
U.S. House of Representatives Committee on Agriculture. While 
in private practice I do recall working for some clients in 
developing and filing certain comments with the EPA or with 
State authorities relating to the development of State 
Implementation Plans or Federal Implementation Plans, as well 
as the development of regulatory actions pursuant to the Clean 
Air Act. I do not recall all of the specific law firm clients 
and specific regulatory proceedings for which I might have 
written or submitted comments or other documents.

          Responses by David R. Hill to Additional Questions 
                    from Senator Benjamin L. Cardin

    Question 1. Mr. Hill, to better understand your view of the 
rulemaking process, I'd like to consider the EPA's stormwater 
provisions: Over the past two decades EPA has recognized the 
numerous adverse impacts that stormwater pollution has on our 
nation's waters. These impacts led to passage of the stormwater 
provisions in the 1987 Clean Water reauthorization. However, I 
am concerned that EPA may not be taking all appropriate steps 
under the Clean Water Act to substantially reduce, if not 
eliminate, this threat to water quality across the fifty 
states. It is my understanding that EPA's effluent limitation 
rulemaking, now underway, could set standards to protect water 
resources from contaminated stormwater discharges from 
development. However, it appears that instead of issuing a rule 
to reduce long-term impacts associated with new development, 
EPA may be instead planning to address construction site 
discharges only. Doing so will ignore the most significant area 
of harm to our waters, and do a disservice to the meaningful 
progress Congress contemplated in 1987.
    If the EPA does decide to only address construction site 
stormwater discharges, it appears that this decision would be 
inconsistent with best-available science regarding sources of 
stormwater pollution and the best approaches to reduce it, and 
is not in the economic interests of my State or the Nation. For 
example, I understand that EPA's decision to expedite this 
rulemaking will not allow it to even consider the 
recommendations of a report on stormwater pollution to be 
issued by the National Research Council in October 2008--an 
expert evaluation that EPA funded to provide scientific backing 
for its stormwater regulatory program. Could you comment on the 
EPA's approach to rulemaking? How does or should science inform 
the rulemaking?--What do you conceive your role is in this 
process?
    Response. Several years ago while serving as DOE's deputy 
general counsel for energy policy, I recall that I had some 
discussions with DOE and EPA officials in connection with the 
EPA's consideration of rulemaking activities in connection with 
stormwater permits for small oil and gas activity sites. 
However, I have had no involvement in connection with these 
matters for several years, and I am not personally familiar 
with the EPA's current stormwater-related activities, or the 
particular matters referenced in this question in connection 
with construction stormwater discharges, or with respect to the 
consideration of a National Research Council report to be 
issued in October 2008. If confirmed as EPA's general counsel, 
I would look into these issues.
    With respect to the EPA's approach to rulemaking, how 
science informs rulemaking, and how I conceive of my role as an 
agency's general counsel in connection with rulemaking, as a 
general matter I believe lawyers can playa very constructive 
role in the rulemaking development and writing process. I 
believe they can do so in several ways--one is with 
participation in the development of the policy leading up to 
the rulemaking. Another is the formulation of the actual 
proposed or final rules issued by the agency. Yet another is in 
providing legal analysis to assist in both the policy decisions 
and in the formulation of the proposed or final rules. And 
finally, lawyers can playa critical role in drafting and 
reviewing the preamble and rule text set forth in a notice of 
proposed rulemaking or notice of final rulemaking. I believe 
that attorneys can best serve the public interest and the 
interests of their respective agencies when they are clear 
about what type of advice they are providing--is it legal 
advice, or is it non--legal policy advice? I believe attorneys 
earn the greatest respect for their legal opinions when they 
are careful about discerning for themselves, and explaining to 
others, exactly what type of advice they are providing. 
Finally, I believe the value that can be added by attorneys is 
enhanced, the earlier an attorney is able to participate in the 
rulemaking process. For example, an attorney's advice likely 
will be most valuable to agency decisionmakers if the attorney 
can be involved in the rulemaking process early and participate 
with other agency decisionmakers in formulating policies to be 
pursued. These points are true for agency attorneys in general, 
and can be particularly true for an agency's general counsel.
    In the situation where an agency's rulemaking concerns, or 
may be informed by, science or scientific judgment, science 
must play an important role in that regulatory action. Of 
course, it is possible that the scientific or technical 
evidence about a particular matter or decision may be 
inconclusive, there may be disagreements among science experts 
about that evidence or the conclusions to be drawn from the 
evidence, or policy assumptions or leanings may be embedded 
within the views expressed by scientists about the scientific 
or technical evidence. Moreover, it is possible if not likely 
that a particular regulatory action does not merely mean 
translating scientific evidence into regulatory text, but also 
involves the exercise of policy judgment about what regulatory 
actions should be taken based on particular scientific evidence 
about which there may well be differences of opinion. And 
finally, there may be disagreements about the appropriate 
policy decision, based on various ``non-science'' factors 
relevant to the rulemaking, even if the relevant scientific 
evidence is clear. In all of these situations, scientific and 
technical information, and scientific and technical judgment, 
are important factors to be considered, although they may not 
always be disposition of the approach to take in a particular 
regulatory action that has been committed by law to a Federal 
agency.

    Question 2. In your opinion, is it appropriate for the EPA 
to focus exclusively on construction site discharges rather the 
long-term stormwater discharges following the construction of a 
development?
    Response. To the best of my knowledge and recollection, I 
have had no personal involvement in connection with any 
decision by EPA to focus any regulatory action in connection 
with stormwater discharges exclusively on construction site 
discharges rather than long-term stormwater discharges 
following the construction of a development. Therefore, at the 
present time I have formed no opinion on what EPA action on 
this matter may be appropriate from a legal or policy 
perspective. If confirmed as EPA's general counsel, I would 
look into the matter addressed by this question.

    Question 3. If EPA fails to set baseline national standards 
for post-construction impact, how would Maryland or other 
states ensure that neighboring states adopt protections that 
would protect the Chesapeake Bay and other waters that are 
interState in nature?
    Response. To the best of my knowledge and recollection, I 
have had no personal involvement in connection with any 
decision by EPA in connection with setting baseline national 
standards for post-construction impacts of stormwater 
discharges. I strongly believe that protection of the 
Chesapeake Bay is an important national priority. If confirmed 
as EPA general counsel, I would look into the matter addressed 
by this question.

          Responses by David R. Hill to Additional Questions 
                      from Senator James M. Inhofe

    Question 1. At your confirmation hearing, it was asserted 
that in establishing the Environmental Protection Agency, 
President Nixon said that he wanted EPA to be a ``strong, 
independent agency.'' The implication was that President Nixon 
thought EPA should be independent from the authority of the 
President. Did President Nixon establish EPA as an 
``independent'' agency? Is EPA an ``independent'' agency as 
that term is understood when referring to Federal agencies?
    Response. The Environmental Protection Agency is not 
currently, and never has been, an ``independent'' agency, as 
that term is generally understood when referring to those 
Federal agencies that are largely free from Executive oversight 
of their decisions in particular cases. In fact, this question 
was addressed by the U.S. Court of Appeals for the District of 
Columbia Circuit in the case of Sierra Club v. Costle, 657 F.2d 
298 (D.C. Cir. 1981). In that case, Judge Wald, writing for the 
Court, stated as follows.
    ''The court recognizes the basic need of the President and 
his White House staff to monitor the consistency of executive 
agency regulations with Administration policy. He and his White 
House advisers surely must be briefed fully and frequently 
about rules in the making, and their contributions to 
policymaking considered. The executive power under our 
Constitution, after all, is not shared it rests exclusively 
with the President. The idea of a 'plural executive,' or a 
President with a council of state, was considered and rejected 
by the Constitutional Convention. Instead the Founders chose to 
risk the potential for tyranny inherent in placing power in one 
person, in order to gain the advantages of accountability fixed 
on a single source. To ensure the President's control and 
supervision over the executive branch, the Constitution and its 
judicial gloss vests him with the powers of appointment and 
removal, the power to demand written opinions from executive 
officers, and the right to invoke executive privilege to 
protect consultative privacy. In the particular case of EPA, 
Presidential authority is clear since it has never been 
considered an 'independent agency,' but always part of the 
executive branch . . . . Of course, it is always possible that 
undisclosed Presidential prodding may direct an outcome that is 
factually based on the record, but different from the outcome 
that would have obtained in the absence of Presidential 
involvement. In such a case, it would be true that the 
political process did affect the outcome in a way the courts 
could not police. But we do not believe that Congress intended 
that the courts convert informal rulemaking into a rarified 
technocratic process, unaffected by political considerations or 
the presence of Presidential power.''

    Question 2. At the hearing, you were asked if you worked 
for the President. You answered yes. It was implied that 
because you work for the President, you would be willing to 
follow the President's orders, even if you disagreed with those 
orders and the orders were contrary to the law. Would you do 
that? If confirmed as EPA general counsel, would you follow the 
orders of the President even if he directed you to act in a way 
that violated the law, or if he directed you to give a legal 
opinion that you firmly believed was illegal and not even a 
reasonable interpretation of the law?
    Response. As general counsel of the Department of Energy, 
my commission signed by the President of the United States 
states that I serve at the pleasure of the President. Moreover, 
as an officer of the United States and an executive branch 
official, I believe there can be no doubt that I work for and 
ultimately report to the President. However, even if the 
President directed me to do so, I would not view myself as 
being bound to violate the law, or to give a legal opinion that 
I firmly believed was illegal and not even a reasonable 
interpretation of the law.
    In this regard, I believe it is important to distinguish 
between being directed to pursue particular policy objectives 
with which one personally may disagree, and being directed to 
act in a manner contrary to law or as a lawyer to be directed 
to issue an opinion that the lawyer firmly believes is contrary 
to law and not a reasonable interpretation of the law. In 
representing the policy objectives of the President or of a 
Federal agency, it is possible that, to the extent I have a 
personal view about the particular policy matter, I do not 
always personally agree with the policy objectives being 
pursued. I do not believe that situation is problematic for me 
or for attorneys in general. Indeed, lawyers working for 
Federal agencies and lawyers in private practice often may be 
called upon to work on matters or advocate interests that are 
not fully consistent with their own personally held views about 
a policy matter.
    On the other hand, as an attorney and as a member of the 
bar, I have a duty to faithfully uphold the law, and under my 
oath as an employee of the Federal Government, I have an 
obligation to uphold the Constitution of the United States. In 
both capacities, I believe I am bound to follow the law, even 
if my superiors direct me to act in a manner contrary to law. 
Never, in my career at the Department of Energy, have I been 
directed to give a legal opinion that I firmly believed was 
illegal or not even a reasonable interpretation of the law. In 
fact, I do not recall any superior ever directing me to 
personally come to any particular conclusion concerning a legal 
opinion I was called upon to render. Whether as general counsel 
of DOE or as general counsel of EPA, if! was directed to 
violate the law or if I was directed to give a legal opinion 
that I firmly believed was illegal and not even a reasonable 
interpretation of the law, I believe I would view myself as 
being obligated to resign my position rather than follow the 
orders given to me.

    Question 3. At your confirmation hearing, you were asked 
some questions about EPA's regulations setting a radiation 
standard for the Yucca Mountain repository. A court's ruling in 
2004 that struck down part of EPA's standard was cited as an 
example of the Bush administration issuing regulations that 
cannot withstand judicial review. Wasn't the rule issued in 
2001, and subsequently partially invalidated, merely finalizing 
a rule that had been proposed in 1999 by the Clinton 
administration?
    Response. Yes. The EPA radiation standard that was the 
subject of the 2004 ruling by the U.S. Court of Appeals for the 
D.C. Circuit was a final rule issued by EPA in 2001. I believe 
that standard had been proposed by the Clinton administration, 
in a notice of proposed rulemaking issued in 1999.

    Question 4. At your hearing some seemed critical of the 
Department of Energy's work in seeking to advance the Yucca 
Mountain project. Didn't Congress in fact, in 2002, approve the 
Yucca Mountain site as the location at which the Department of 
Energy was directed to submit to the Nuclear Regulatory 
Commission a license application for authority to construct a 
spent nuclear fuel and high level waste repository? Isn't it 
the Department of Energy's responsibility, under law, to 
prepare and file this application with the NRC? And isn't that 
exactly what you and others at DOE have been doing?
    Response. In 2002, Congress passed and the President signed 
a Joint Resolution, enacted as Public Law 107-200, which 
approved the site at Yucca Mountain, Nevada for the development 
of a repository for spent nuclear fuel and high level 
radioactive waste, pursuant to the Nuclear Waste Policy Act of 
1982 (NWPA). As a result of that approval, DOE is required by 
law--specifically, section 114(b) of the NWPA to prepare and 
submit to the Nuclear Regulatory Commission a license 
application seeking authority to construct the repository at 
Yucca Mountain. DOE has been engaged in that effort since 
Public Law 107-200 was enacted in July 2002. My work at DOE in 
connection with the Yucca Mountain project has been in 
furtherance of this obligation which is imposed by law upon the 
Department of Energy.

    Senator Boxer. At this time, I would ask Senator Inhofe if 
he would like to make an opening statement or place a statement 
in the record.

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

    Senator Inhofe. Madam Chairman, I think I will go ahead.
    Senator Boxer. Please.
    Senator Inhofe. I understand you said that Senator Craig 
was here and made a strong statement. I will associate with his 
remarks and submit mine for the record, and go ahead and start 
with the questions.
    [The prepared statement of Senator Inhofe follows:]

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

    I'm pleased we are holding this nominations hearing today. 
However, I must say that I'm very concerned about the Senate's 
lack of progress on nominations. Several critical nominations 
have been sitting idle on the Senate Calendar for months due to 
political power plays by the Democratic leadership in a 
partisan effort to wrestle the Constitutional power to nominate 
individuals from the President. Prior to the Easter break, this 
Committee had seven nominees who had been delayed by the 
Democratic Leadership as a result on this political act. Two of 
these nominees waited 8 months and another waited 11 months 
before they were confirmed on March 13th. Three nominees 
favorably reported by this Committee remain on the calendar. 
They deserve fair and swift consideration by the Senate. Please 
understand, Madame Chairman, that this criticism is aimed at 
the Democratic Leadership, not at you. You have been reasonable 
in handling nominees.
    That said, I'm pleased to support David Hill's nomination 
EPA's General Counsel. Mr. Hill is currently serving as General 
Counsel at the Department of Energy. Prior to Senate 
confirmation in 2005, Mr. Hill served as Deputy General Counsel 
for Energy Policy from 2002 to 2005. He is a well qualified 
candidate for this very important position.

    Senator Boxer. Very good.
    Then I will start the questions, 5 minutes, and we will 
just go back and forth.
    I have here a list I will share with you--it is all a 
public document--of the cases that have been overturned by the 
courts, the decisions by EPA that have been overturned by the 
courts. I read a few, Massachusetts v. EPA and so on. I wonder 
whether you, in preparing for this hearing, have taken a look 
at these rulings and what your comments might be.
    Mr. Hill. Over time, Madam Chairman, I have read the 
opinions in some of those cases. I don't know a full list of 
all of the cases that have involved EPA and that the courts 
have ruled against the agency. I am aware of at least some of 
the major cases like Massachusetts v. EPA and the recent case 
having to do with the clean air mercury rule and some others.
    Senator Boxer. And you must be aware where the Supreme 
Court told the EPA they absolutely have to regulate carbon and 
greenhouse gas. I am sure you read that as well.
    Mr. Hill. In the Massachusetts v. EPA case, I believe what 
the Supreme Court decided was that greenhouse gases were air 
pollutants under the Clean Air Act.
    Senator Boxer. Right.
    Mr. Hill. And that under section 202 of the Clean Air Act, 
the Administrator had to make a decision under that particular 
section as to whether or not emissions of greenhouse gases from 
mobile sources endangered the public health and welfare.
    Senator Boxer. Did you read the part where they discuss the 
action to set mileage standards, what they said about that? 
Because Administrator Johnson, his first argument was that DOT 
was setting mileage standards and therefore we didn't have to 
do anything else.
    Mr. Hill. I remember there was a part of the opinion, Madam 
Chairman, where the court was talking about the interplay 
between the Department of Transportation's responsibilities to 
set CAFE standards under the Energy Policy and Conservation 
Act, and EPA's duties under section 202 of the Clean Air Act. I 
believe what the court said in that context was that the court 
had confidence that the agencies would be able to work together 
and work something out. It certainly said that DOT had its 
responsibilities and EPA had its responsibilities.
    Senator Boxer. Actually, the language was very different 
from that. They said, ``The fact that DOT sets mileage 
standards in no way licenses EPA to shirk its environmental 
responsibilities.''
    How do you feel in general about the EPA, you know, because 
it is the legal people who are advising EPA here, overturned 
nine times in major cases, more times than that, but in major 
cases nine times since 2004. Why do you think that happened?
    Mr. Hill. Madam Chairman, of course it is a serious concern 
for an agency when it makes a decision and invests a lot of 
time in a particular decision and a particular course of 
action, and that decision is overturned in the courts. At DOE, 
we of course are sued at various times and we try to vigorously 
defend what it is we have done. We try to do things in a way 
that is legally defensible. It is a real concern to have a good 
record of being able to defend those cases in court.
    If I were the General Counsel at EPA, of course I would 
look at the decisions that have been made and to the extent 
those are final, those are settled law and we have to operate 
with those. I would do everything I can to try to advise the 
Administrator in a way where we do develop decisions and rules 
that are going to be legally defensible.
    Senator Boxer. Yes, because my concern is, frankly as I 
look over this list, it is just extraordinary to me that 
politics is playing a part here, that these decisions are being 
made because of politics, rather than following these various 
landmark laws.
    Before I turn it over to Senator Inhofe, I want to talk 
about your involvement in some of these rules that were 
overturned by the courts. Were you involved in an interagency 
review process of EPA's new source review rules and the mercury 
rule?
    Mr. Hill. Yes, I have been involved in the interagency 
process on numerous things--actions by DOE, actions by EPA, 
actions by other agencies. I was involved in interagency 
discussions.
    Senator Boxer. Do you recall what your view was at that 
point on that new source review and the mercury rule?
    Mr. Hill. Well, Madam Chairman, I remember discussing those 
in the interagency process. I am sure I offered comments. I 
don't know specifically, and that has been several years ago. I 
don't know that I recall specifically what comments I was 
offering.
    Senator Boxer. Did you offer any criticism of the overall 
approach that EPA was taking that eventually was overturned?
    Mr. Hill. I remember us having discussions of various 
kinds. I don't remember actually saying that I thought they 
should go in a completely different direction than the one that 
they were going in.
    Senator Boxer. OK. I will get back to that.
    Senator Inhofe.
    Senator Inhofe. Thank you, Madam Chairman. I apologize for 
being a little bit late.
    I have looked into your background and your past 
performance and I feel you would do an excellent job in this 
position. One of the things that has bothered me quite a bit is 
when you look at the regional offices, there is quite a 
disparity between the enforcement policies that they have from 
these various offices. When I chaired this Committee when the 
Republicans were a majority, we held several hearings.
    Now, in this position, it would seem to me that you would 
be in a position to deal with the attorneys at these regional 
offices to have consistency in the application of the laws and 
the policies of the EPA in those offices. This is the one thing 
that I would like, No. 1, to know if you agree that there is a 
problem; and No. 2, if you are willing to get out there and 
confront that problem so that when we call and we see that 
there is a disparity in application that maybe we can correct 
that problem.
    Mr. Hill. I appreciate the question, Senator Inhofe. One of 
the things that I have done at the Department of Energy as 
General Counsel is try to travel around the Country to the 
sites where DOE has major operations, where we have Chief 
Counsels and where we have attorneys that practice, DOE 
attorneys around the Country.
    Senator Inhofe. And how many regional offices would that 
be?
    Mr. Hill. We don't have as many site offices as EPA has 
regional offices, but we probably have attorneys maybe at seven 
or eight places around the Country.
    Senator Inhofe. OK. And you actually yourself have gone 
there on this mission?
    Mr. Hill. Yes. I personally have traveled to a number of 
those places. There are several places I have been to, at 
several DOE facilities where they have noted that I am the 
first General Counsel in the 30 years of DOE to ever set foot 
in their office.
    Senator Inhofe. And they were offended, I am sure.
    [Laughter.]
    Mr. Hill. Well, I don't know. They may have been. I don't 
know, Senator. They didn't tell me whether they were happy that 
I showed up. I have done that for a couple of reasons. One is 
so that I actually can see where we are conducting operations, 
whether it is one of the laboratories or one of the cleanup 
sites or the Strategic Petroleum Reserve. And so that I can 
meet a number of the people, both attorneys and non-attorneys, 
who are there, a number of whom I normally don't have any 
occasion to work with.
    When I have traveled around the country, one of the things 
that I have done is I have told them that I view it as our 
obligation as attorneys--and that is really true whether they 
are a part of the Office of General Counsel or whether they are 
a part of the Office of Science or the Office of Environmental 
Management--to work with attorneys throughout the Country so 
that we do have a coordinated approach to things, and so that 
we do have consistency in the way that we approach matters.
    I also I have focused on making sure that they have the 
resources they need as practicing attorneys and that their 
voices are being heard in the matters that they are working on.
    Senator Inhofe. Well, I would like to ask for a commitment. 
I believe you are going to be confirmed. I certainly support 
your confirmation. But I would like to get a commitment that 
you, let's say in the first year, actually physically visit and 
talk about this problem. And prior to making that trip to the 
various regional offices, read the transcripts of the--I think 
we had two hearings back when I chaired this Committee--on 
really egregious inconsistencies of application of the law and 
the policies in these various regional offices. Would you be 
willing to do that?
    Mr. Hill. Senator, I will commit to you to extract myself 
from Washington, DC. and go out and visit some of these 
regional offices. I don't know if I can commit to visit them 
all, but it certainly will be a priority of mine to get on the 
road and visit some of these regional offices and talk with 
them.
    Senator Inhofe. Yes. OK. Let me alter my request. I want 
all of them, yes, but Region V and Region IX to be the first 
two priorities.
    Mr. Hill. I will work to make those my first priorities, 
Senator, if at all possible.
    Senator Inhofe. All right. Thank you very much.
    Thank you, Madam Chairman.
    Senator Boxer. Senator Bond, do you have an opening 
statement?

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

    Senator Bond. Madam Chair, I apologize.
    Senator Boxer. That is all right.
    Senator Bond. Everything has hit my schedule today, and I 
ran into the Cherry Blossom traffic coming in. I thought the 
traffic was over with.
    Senator Boxer. Yes, well, you are welcome to make an 
opening statement.
    Senator Bond. Fine. I wanted to do that because David Hill 
is a Missourian with deep and strong roots. I believe that the 
Committee and the full Senate should act expeditiously to 
approve him. David is a sixth-generation Missourian. His great-
great-great-grandfather Sam Hill came to Missouri in the early 
1800's. My great-great-great-grandfather came to Missouri in 
the late 1700's, and so we have a similarity there.
    His parents are from rural Caldwell County, Northwest 
Missouri. He grew up in Smithville, north of Kansas City, where 
his parents live. After Smithville High School, he received a 
degree in ag journalism for the University of Missouri, which 
is our nationally known school both for its college of 
agriculture and its law school.
    He attended law school at Northwestern University in 
Chicago, and clerked for a judge on the Tenth Circuit Court, 
U.S. Court of Appeals. I clerked on the Fifth Circuit Court of 
Appeals. David practiced law in Kansas City and Washington, DC, 
as I did. He served as a professional staff member of the House 
Ag Committee, but despite his Washington connections, he has 
maintained his ties with Kansas City and Missouri. I think he 
would make an excellent member of the EPA.
    Madam Chair, this is a very contentious time for 
environmental policy in this Administration. Congress and our 
oversight role needs to understand better the decisionmaking of 
the EPA. EPA's General Counsel must play a central role in 
responding to information requests such as the request that our 
Ranking Member has just made. That is why I think it is in the 
interest of the Committee and the Senate to have the EPA 
General Counsel office fully staffed with leaders empowered to 
make decisions.
    He was unanimously confirmed as General Counsel at the 
Department of Energy and his 3 years of experience there make 
him well qualified to serve in the same role at another major 
governmental agency. He has a record of proven experience, 
management acumen, and legal experience. I believe this Show Me 
State product has shown us he can make an excellent EPA General 
Counsel.
    I urge the Committee to report the nomination favorably, 
and I will urge our colleagues in the Senate to confirm him as 
swiftly as possible.
    With that, Madam Chair, I am due at three more committee 
meetings this morning.
    Senator Boxer. I know.
    Senator Bond. So I apologize, but mark me down as strongly 
in favor.
    Senator Boxer. I know that and I will mark you down as 
strongly in favor. We really do thank you for making the 
effort. It says a lot for your opinion.
    Senator Bond. This is a fine man. Even though he and I have 
a similar track record, don't judge him by my mistakes please.
    [Laughter.]
    Senator Bond. I hope he has learned better than I did.
    So thank you very much.
    Senator Boxer. Thank you, Senator Bond, for making the 
effort to come over. We know this is just such a hectic time 
for all of us, and we appreciate your being here.
    I want to get back to your role in the EPA new source 
review rules and the mercury rule, because I have the docket 
here. You know, you made some edits and that is about it. So it 
is clear to me, and you said before you didn't recommend they 
go in a different direction. This is a problem because of what 
eventually happened, which was the courts came down hard on EPA 
and the docket shows you did make comments kind of on every 
page, but they were more technical or corrective.
    In New York v. EPA--this was the D.C. Circuit in 2006--
EPA's interpretation of substantial plant modifications did not 
come within the scope of any physical change and would make 
sense only in a Humpty Dumpty world. That is pretty tough talk.
    And then New Jersey v. EPA, the D.C. Circuit, which is 
certainly a conservative circuit--I mean Janice Rogers Brown as 
I understand it, is that right, signed off on it? Janice Rogers 
Brown, and she is one of the most conservative judges ever, I 
think I could say. The EPA rules seeking to reverse controls on 
mercury emissions from power plants was unlawful on its face. 
EPA's explanation--and this is a direct quote from the 
decision--``deploys the logic of the Queen of Hearts, 
substituting EPA's desires for the plain text of the section.'' 
That is pretty fancy language for that court.
    So what I am saying is, here you had an opportunity to save 
EPA from themselves. This list is shocking, frankly, and you 
didn't exercise that judgment which is of concern.
    On the ozone air quality standard, on March 15th EPA 
announced a revised secondary air quality standard for ozone. 
The Federal Register notice showed the White House overruled 
EPA on the appropriate standard based on an OMB position. Do 
you believe it is appropriate for OMB or other White House 
staff to overrule the scientific judgment of the EPA 
Administrator, when Congress has explicitly delegated the 
decision to the Administrator under the Clean Air Act?
    Mr. Hill. Madam Chairman, I think it is perfectly 
appropriate for there to be coordination and consultation 
between various agencies and with the various agencies with 
officials at the White House. I read some of the press reports 
about the conversations between the EPA and the White House 
about the secondary standard on the ozone rule that was 
recently issued. I don't know anything more about those 
conversations than what I read about them in the papers.
    Senator Boxer. Right. But I am not asking you about 
conversations. I am saying I know you have read the Clean Air 
Act. Under the Clean Air Act, it is supposed to be a clean 
decision by the EPA Administrator without that type of 
interference. It is supposed to be based on protecting the 
health of the people. That is the way the Act is written. The 
Act wasn't written with any other purpose.
    So I am asking you again, do you believe it is appropriate 
for OMB or other White House staff to overrule--to overrule, I 
am not saying talk to--to overrule the scientific judgment of 
the EPA Administrator when Congress has explicitly delegated 
the decision to the Administrator in the Clean Air Act? Do you 
think it is appropriate for them to overrule? That is my 
question.
    Mr. Hill. Senator, the courts have held for a number of 
years, and in fact the executive orders dealing with 
interagency review of major regulations say that it is 
perfectly appropriate for there to be any amount of 
consultation and coordination and work among the various 
agencies and with the folks at the White House. So I think it 
is perfectly reasonable and appropriate that those interagency 
conversations go on.
    Senator Boxer. I agree with you. I am not questioning that. 
You are repeating it. Do you think--yes or no--it is 
appropriate for OMB or other White House staff to overrule the 
scientific judgment of the EPA Administrator when the Congress 
has explicitly delegated the decision to the Administrator 
under the Clean Air Act?
    Mr. Hill. Senator, again, I think the courts have held that 
within the unitary executive, it is fine for the White House to 
be significantly involved in decisions.
    Senator Boxer. I know. I am not asking that. Can you please 
answer my question? I thank you. You are a very smart man. I am 
not trying to trap you. I am simply trying to get an answer.
    Do you believe it is appropriate for the OMB or other White 
House staff to overrule the scientific judgment of the EPA 
Administrator when Congress has explicitly delegated that 
decision to the Administrator? I am not talking about 
consultation, having lunch, chit-chatting, having coffee and 
exchanging ideas. I am talking about overruling a decision.
    Mr. Hill. Ultimately, the Administrator works for the 
President of the United States.
    Senator Boxer. Doesn't the Administrator have to carry out 
the Clean Air Act? What if the President of the United States 
tells him to do something illegal? You are saying he has to do 
that?
    Mr. Hill. I believe the courts have held, Senator, that 
within the unitary executive that the Administrator and the 
EPA, just as with all executive agencies, work for the 
President and are responsible to the President of the United 
States.
    Senator Boxer. OK. Well, my legal experts are telling me 
that there is going to be another lawsuit because of the way 
this rule was handled. What is discouraging to me is you are 
basically giving the sign-off. He works for the President so if 
the President tells him ignore the health factors, I just think 
politically this is a bad decision, that you would be fine with 
that. That is extremely troubling to me because I will tell you 
why. There will be another lawsuit. EPA will lose again, and 
all we are doing is delaying the work we have to do.
    We will go to Senator Inhofe for his questions.
    Senator Inhofe. Madam Chairman, I don't have any more 
questions. After listening to Mr. Hill, I think he is doing 
fine. In just a very short while, I am going to have to leave, 
and I hate to do that to you, but I think you can handle 
yourself.
    Senator Boxer. Senator Whitehouse.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you, Madam Chair.
    Mr. Hill, I would be interested in hearing a little bit 
more about your conception of the role of a General Counsel to 
a government agency. Unfortunately, from the various seats that 
I have on Senate committees, on a variety of occasions I have 
seen attorneys' performance and attorneys' work that to me does 
not meet very, very basic standards of adequacy, but appears to 
serve a larger political purpose, i.e. corners were cut that 
shouldn't have been cut; cases were ignored that shouldn't have 
been ignored; analysis was flawed, but it got where people 
thought the President wanted it to go.
    It is concerning to me to hear you sort of leap to the 
notion of unitary executive, and the implication one takes from 
that the role of a Cabinet officer in a President's 
Administration, particularly of an agency like EPA that is a 
regulatory agency as well as an implementing agency, is simply 
to do the President's bidding.
    How do you compare and contrast your conception of a 
unitary executive, for instance, with the conception of the 
first Administrator of the Environmental Protection Agency, 
also a Republican, that it was an independent agency?
    Mr. Hill. Senator, your first question about the role of a 
General Counsel and how a General Counsel operates within an 
agency, of course, having been General Counsel of the 
Department of Energy for almost 3 years, there have been 
various situations that I have been in where I have given 
advice in various DOE matters and various DOE decisions, some 
major, some minor, where the advice I have given has been that 
we cannot as a legal matter pursue a policy objective that one 
or the other of the policy officials wishes to pursue. And 
there are times that people have been very angry with me about 
that.
    But as a matter of carrying out my obligations as General 
Counsel to the Secretary, the President and the American 
people, I view that as being my obligation. I am perfectly 
willing to accept that responsibility as the General Counsel of 
DOE.
    Senator Whitehouse. Good. of EPA, you mean?
    Mr. Hill. I do currently at DOE. If I were confirmed at 
EPA, I would at EPA as well.
    Senator Whitehouse. Yes. EPA appears to have a pretty 
tragic history recently with the result of its litigation. 
Courts of the United States have referred to its litigation 
positions using reference to Humpty Dumpty, using reference to 
Alice in Wonderland. It is embarrassing to me as a member of 
the U.S. Government to have an agency of the U.S. Government 
referred to in that way by our courts.
    The record of success on significant litigation of the EPA 
is essentially zero. They got knocked out of the box 
essentially every time. There appears to have been no effort 
that I can divine to, if this was a company, for instance, and 
corporate counsel made litigation recommendations to the CEO 
that caused defeat after defeat after defeat, and caused the 
courts not only to say you lose, but to mock the credibility of 
the position that corporate counsel had taken. At some point, 
somebody you would think would look back and say, you know, our 
corporate counsel aren't doing a very good job here; let's take 
a second look.
    I worry in the context of this sort of unitary executive 
theory that at the EPA the legal determinations are now being 
made not because of their merit or because even of any 
likelihood of success, but because they will either kick the 
can down the road for a little while, or at least please the 
policymakers in the White House. That creates substantial 
expense to taxpayers and it also creates departures from 
American law, which are significant. No matter what party you 
are in, no matter what agency you are in, we would like to 
operate a government that is lawful.
    I am wondering what your comment is on the record of EPA in 
terms of its litigation, whether you see warning signs there 
that suggest that maybe something is wrong that needs to be 
corrected, and what you might do to correct it.
    Mr. Hill. Senator, I think your concerns are very 
legitimate. I am concerned about that as well. I think a lot of 
these decisions that EPA has made and makes and a lot of the 
matters before the agency are very complex, from a legal and 
policy and scientific and technical perspective. As a result, 
they are very complicated decisionmaking matters.
    I think if I were confirmed as General Counsel, I certainly 
would view it as my obligation and I would do everything I can 
to make sure that in carrying out those responsibilities 
decisions and in making those decisions or issuing those rules, 
that we did those in a responsible manner, and I would advise 
the policymakers about a way to do that in a legally defensible 
way.
    Senator Whitehouse. Do you have concerns at present, or any 
idea at present as to what might have gone wrong that caused 
this extraordinary series of not only defeats, but embarrassing 
criticisms of the very professional quality of the work that 
led to the defeat?
    Mr. Hill. If confirmed, Senator, one of the first things I 
would do is meet with all of the Associate General Counsels and 
the Deputy General Counsels, I believe all of whom, perhaps 
with one exception, are career Federal employees there at EPA, 
and learn from them just what they believe. The past is the 
past, but we can do something about the future. What it is from 
their perspective, and how it is that we might approach our 
work in a way where the agency would be able to have an 
improved track record.
    Senator Whitehouse. It is your sense that the patterns and 
practices that have led to this sequence of defeats at least 
merits a look at this point by a new incoming General Counsel 
as to what the heck is going on here.
    Mr. Hill. I certainly don't know, Senator, that anything 
that has been done in terms of management of the office before 
has been wrong, but I of course haven't been in that office.
    Senator Whitehouse. Working back from the conclusion you 
draw from the batting record of the department and from the 
really extraordinary things that were said about it by United 
States District Court and Circuit Court judges, just that 
alone, setting aside knowing what went on, that merit at least 
being looked at as General Counsel?
    Mr. Hill. Senator, it is concerning, just as at DOE when we 
are sued and lose, it is a matter of significant concern to me. 
What it causes me to do is say, OK, well how is it that we can 
conduct our work differently; how is it we can go about this in 
a different way, so that we don't just make decisions and get 
them remanded to us or get them overturned. These are decisions 
and rules and other matters that require an extraordinary 
amount of work, and yet we need them to survive judicial 
challenge. And so I certainly would do what I can to address 
that.
    Senator Whitehouse. I have gone over my time. I see that 
some of my colleagues have arrived. I appreciate the Chair for 
her indulgence while I have the floor for a while here. Thank 
you very much, Madam Chairman.
    Senator Boxer. No, I appreciate your line of questioning.
    Here is what we are going to do. We are closed for opening 
statements. We will put those in the record, but we will go to 
questions.
    Senator Barrasso.
    Senator Barrasso. Thank you very much, Madam Chairman.
    Mr. Hill, congratulations. I appreciate your being here 
with your family in the front row. I want to appreciate your 
service and your willingness to do continued service here for 
our country, so thank you very much.
    I am from Wyoming, and in Wyoming we believe that Wyoming 
solutions to environmental problems are better than the one 
size fits all approach that Washington often offers. We also 
often disagree with interpretations of the law coming from 
Washington on statutes such as the Clean Air Act or the Clean 
Water Act.
    Can you elaborate a little bit about your feelings of 
incorporating State and local viewpoints in terms of analyzing 
and interpreting the law?
    Mr. Hill. Thank you for that question, Senator. Again 
speaking about my experience at DOE, we have a number of major 
operations around the Country both in terms of laboratories or 
our cleanup sites. In most of those really in all of those 
situation it is important to the success of what we are doing 
that we work very closely with the States. In fact, often we 
are regulated by the States in terms of our cleanups.
    So one of the things that I personally have done 
occasionally is work with State officials on those particular 
matters. Other attorneys in the office have as well, and that 
is really true both on legal matters and also working with 
other officials in the department on more policy or budget 
matters.
    Senator Barrasso. Along that line, with your experience at 
the Department of Energy in terms of the legal, the technical, 
policy matters, could you give us a couple of examples of how 
you work with others? You know, you talked in your testimony 
about the reputation that you have gained of being careful and 
considerate of all viewpoints. I don't know if you want to 
share with the Committee any specific examples of how you have 
worked well with others.
    Mr. Hill. Sure. One of the things that we are doing right 
now and that I spoke with Senator Craig about just a little bit 
before the hearing started, is that we of course have a 
laboratory and a large cleanup ongoing in the State of Idaho. I 
personally and other attorneys in the office have worked for 
months, for years in connection with Idaho officials, both 
lawyers and non-lawyers, on that operation. We don't always 
agree, and sometimes we have very difficult arguments about 
that, but I think we have worked constructively over time.
    In the context of the DOE work and within the 
Administration, within the Federal family, the loan guarantee 
program that DOE is working to implement that was authorized in 
the Energy Policy Act of 2005 has required extensive 
coordination by us at DOE with officials at the Department of 
the Treasury, with the Office of Management and Budget, with 
Members of Congress and their staffs. Again, it is not 
something where we can always make everybody happy, but it is 
something where we try to address legitimate concerns. We try 
to listen to reasonable arguments, and we try to come up with 
something that makes sense from a legal and a policy and a 
fiscal standpoint.
    Senator Barrasso. Thank you very much, Mr. Hill.
    Thank you, Madam Chairman.
    Senator Boxer. Thank you very much, Senator.
    Senator Carper.
    Senator Carper. Thank you, Madam Chair.
    Mr. Hill, welcome. I see two of your three daughters are 
here. Is that right?
    Mr. Hill. Thank you, Senator. Yes, we have three daughters, 
but there are only two of them that made the trip.
    Senator Carper. Where is the third one?
    Mr. Hill. The third one is 3 years old and she is in her 
preschool this morning.
    Senator Carper. I would call that an excused absence. We 
welcome you. At least you have a quorum of your family here, so 
we are glad you are here. Welcome and thank you for your 
service to our country.
    I am going to go back over 7 years in time, to Saginaw, 
Michigan, when my colleague, a former Governor, then-Governor 
George Bush made the following campaign promise. What he said 
is he said if he were to become President, and this is what he 
pledged, and I am going to quote him, ``to require all power 
plants to meet clean air standards in order to reduce emissions 
of sulfur dioxide, nitrogen oxide, mercury and carbon dioxide 
within a reasonable period of time.'' Those are his words.
    Unfortunately, less than 60 days after taking office, 
President Bush began backing away from that pledge. And 6 
months later, on March 13th, 2001, in a letter that President 
Bush sent, he said, and again I quote, ``I intend to work with 
the Congress on a multi-pollutant strategy to require power 
plants to reduce emissions of sulfur dioxide, nitrogen oxide 
and mercury. I do not believe, however that the government 
should impose on power plants mandatory emissions reductions 
for carbon dioxide, which is not a pollutant under the Clean 
Air Act.'' That is again his quote.
    Unfortunately, in 2005, President Bush continued to pull 
away from his initial pledge. He decided not to work with 
Congress on a multi-pollutant strategy, and his Clear Skies 
proposal failed here because it would not have improved the 
environment and ignored carbon dioxide emissions. He then 
attempted to implement his Clear Skies proposal through 
regulation in the form of a clean air interState rule and the 
clean air mercury rule.
    One year ago, the Supreme Court rejected the President's 
position that carbon dioxide is not a pollutant. As you know, 
the Supreme Court told EPA that the EPA's decision not to 
regulate carbon dioxide--and this is a quote again from the 
decision ``rests on reasoning divorced from the Clean Air 
Act.'' In other words, the Supreme Court decided that EPA 
failed to follow the clear directives of the law.
    In 2006, the D.C. Circuit Court concluded that EPA's 
attempt to weaken the regulations known as new source review 
would make sense ``only in a Humpty Dumpty world.''
    I wish some of these people were writing my speeches. They 
are pretty good.
    In February of this year, the D.C. Circuit vacated a clean 
air mercury rule. In their decision, the court said EPA's 
mercury rule was based on ``the logic of the Queen of Hearts 
substituting the EPA's desires for the plain text'' of the law.
    In my opinion, this was a welcome decision. The clean air 
mercury rule was deeply flawed, and I understand you have a 
different view of this, but it was deeply flawed and did not go 
far enough to protect the public's health, in my own 
estimation. EPA should have regulated mercury as a hazardous 
air pollutant and imposed regulations that would require every 
covered power plant to install best available controls to 
reduce their mercury emissions.
    And finally late last month, the D.C. Circuit Court heard 
oral arguments on a challenge to the clean air interState rule. 
Many believe the court could overturn that rule as well. Given 
EPA's track record in the courts, I would say it is not 
unlikely.
    In short, regrettably we are not much closer to cleaner air 
than we were in 2000. What this means is that in the 8 years 
since then-Governor Bush promised to address all four major 
pollutants from power plants, 190,000 people have died 
prematurely due to air pollution; five million babies have been 
exposed to dangerous mercury levels in the womb; 580 million 
hours of work have been missed because of asthma and other 
respiratory diseases; and countless dollars have been spent on 
health care treating the many illnesses that these pollutants 
cause. This is not an environmental legacy that I would be 
proud of.
    Given the fact that EPA has had so many of its proposals 
overturned by the courts, I think it is an understatement to 
say that EPA has suffered from some bad legal advice. The 
Supreme Court and the District Courts have repeatedly chastised 
EPA for failing to follow the law and making instead Alice in 
Wonderland-types of interpretations of the Clean Air Act.
    Mr. Hill, that is the legacy position that you are seeking 
to fill and may well fill. I sincerely hope that if you are 
confirmed as EPA's next General Counsel you will follow through 
with the commitment made in your written statement to help the 
agency advance its mission protecting human health and the 
environment in a manner that fully complies with the law. It is 
a long statement. Here is my question.
    On April 2d, 2007, the U.S. Supreme Court ruled that carbon 
dioxide is a pollutant and charged EPA with making a formal 
endangerment finding regarding greenhouse gases. On April 2d, 
2008, the litigants in the Supreme Court decision petitioned 
the court to force EPA to make this finding within the next 60 
days. I find a year long delay in acting on a ruling, 
responding to a ruling from the highest court in the Nation to 
establish critical environmental regulations unacceptable.
    Question: What do you consider an appropriate response time 
to a decision or a finding of this nature? How will you work to 
ensure the agency responds in a timely manner in the future? 
Please.
    Mr. Hill. Thank you for the question, Senator. I think that 
how fast an agency should work on remand of a particular case 
depends on the circumstances. I know that in this particular 
case, I believe the Administrator recently announced that he 
had decided to publish an advance notice of proposed rulemaking 
having to do with how to respond to the particular decision in 
light of all the implications of regulation of greenhouse gases 
under the Clean Air Act if that were to happen as a result of 
an endangerment finding under section 202 of the Clean Air Act.
    So your direct question I believe is how fast should the 
agency act. I think the answer is really it depends on the 
circumstances.
    Senator Carper. Is a year a reasonable period of time given 
this situation?
    Mr. Hill. In this particular case, I believe it was maybe 
within a month or so of the Supreme Court's decision the 
President issued an Executive Order calling for different 
agencies to work together in response to the Massachusetts v. 
EPA case. The agencies were working together on that, and then 
the Energy Independence and Security Act was passed, and now 
the Administrator has decided to publish an advance notice of 
proposed rulemaking.
    So I think the agency has proceeded down one path, but then 
what the Administrator said was that in light of some of the 
recent developments and really thinking more about it, that he 
thought that an advance notice of proposed rulemaking was the 
right way to go.
    So I think in answer to your question, it really depends on 
the circumstances. But in this case, the Administrator has 
decided that an advance notice of proposed rulemaking is 
appropriate at this time.
    Senator Carper. My time has expired. Let me just say, I 
wish you well, but I am disappointed with that response. Thank 
you.
    Senator Boxer. Mr. Hill, I want to talk about the Savannah 
River nuclear waste disposal. In 2006, you sent a letter to the 
Nuclear Regulatory Commission objecting to the commission's 
plan for overseeing DOE's handling and disposal of spent 
nuclear fuel at the Savannah site.
    You raised issues with the NRC's proposal to make key 
aspects of their review of DOE's nuclear waste disposal 
publicly available, and you objected also to having key 
meetings open to the public. Press reports said that DOE 
insisted on having closed door meetings to define the scope of 
NRC's rule. I have a copy here of the letter that you wrote 
expressing your concern, and I am going to make it part of the 
record, without objection.
    [The referenced document was not received at the time of 
print.]
    Senator Boxer. Do you believe that keeping the public in 
the dark on such important matters as nuclear waste disposal is 
appropriate?
    Mr. Hill. Madam Chairman, I believe that it is important in 
some contexts for there to be a free and frank discussion among 
agency officials of different agencies that isn't always in 
public. I think in that particular context, which I believe had 
to do with the waste incidental to reprocessing matter at 
Savannah River, that Congress had passed and the President had 
signed a law calling for the Department of Energy to make 
certain determinations. We believed that at the particular time 
the Nuclear Regulatory Commission was proceeding in a way that 
was inconsistent with what Congress had intended and the 
authority it had given the Department of Energy in that 
particular statute. So that was why I wrote that letter to the 
NRC.
    Senator Boxer. But sir, your objections went beyond that 
because you said you objected to having key meetings open to 
the public. So you objected to that, and eventually, by the 
way, you were overruled. People weighed in on it and that 
changed. So I have a problem with that as someone who believes 
the public has a right to know, especially on these important 
matters. Representatives Dingell and Barton, bipartisan, raised 
concerns to these closed meetings, and the NRC opened the 
meetings despite your objection.
    As we move forward, this is an issue that I care deeply 
about, the public's right to know. It is involved in a lot of 
environmental laws. This, I think, is symbolic to me of your 
taking the side of secrecy. I understand your concerns. You 
outline them in your letter.
    Now, on Yucca Mountain, what role would you play as General 
Counsel in finalizing the Yucca Mountain radiation standards?
    Mr. Hill. If I were confirmed as General Counsel at the 
Environmental Protection Agency, I anticipate I would work with 
the Administrator and other officials if that hadn't been 
finalized by that time to help finalize the standard.
    Senator Boxer. So you would be in a position to modify the 
radiation standards and in a position to approve or deny 
promulgation of the radiation standards?
    Mr. Hill. Well, it would be the Administrator's decision in 
the end about what standard and what rule to approve.
    Senator Boxer. And the Administrator works for the 
President, right? That is what you said. Do you work for the 
President?
    Mr. Hill. I work for the President as well, yes.
    Senator Boxer. OK. All right. This whole thing is 
interesting the way you see your role. I respect it, but it 
flies in the face of what Richard Nixon said the agency ought 
to be totally independent. It is a problem and it reflects 
exactly why we are where we are with a series of court 
decisions that have been overturned and make all of you who are 
involved with them look like you don't know what you are doing.
    You are a brilliant man. I see it, with a beautiful family, 
and I wish you nothing but good things in your life. But I 
don't necessarily want to see this attitude continue at the 
EPA, which has become a shadow of its former self.
    Now, have you ever participated in making any 
recommendations or comments to the EPA, the NRC or the White 
House on the Yucca Mountain radiation standards?
    Mr. Hill. I have participated in interagency discussions on 
that matter.
    Senator Boxer. And what was the substance of your comments 
or recommendation?
    Mr. Hill. The DOE has of course been working for years on 
the Yucca Mountain matter. We are currently in the process of 
trying to prepare a license application to file at the Nuclear 
Regulatory Commission relating to the Yucca Mountain project. 
We have tried to participate in those discussions 
constructively, and of course to help EPA develop a standard 
that is both technically sound and legally defensible.
    Senator Boxer. Have you ever recommended or suggested in 
writing or verbally that anyone should modify the technical 
recommendations of EPA's staff regarding any Yucca Mountain 
standards?
    Mr. Hill. Have I recommended?
    Senator Boxer. Have you recommended or suggested in writing 
or verbally that anyone should modify the technical 
recommendations of EPA staff regarding any Yucca Mountain 
standards?
    Mr. Hill. Have I recommended that anyone modify the 
technical recommendations of EPA staff?
    Senator Boxer. Yes.
    Mr. Hill. I don't remember doing that, Madam Chairman.
    Senator Boxer. OK. Do you disagree with the court that 
overturned the EPA standards?
    Mr. Hill. Madam Chairman, you are referring to the decision 
in, I think it was, 2004?
    Senator Boxer. Yes.
    Mr. Hill. The EPA standard, the radiation standard for 
Yucca Mountain, was promulgated in I believe it was 2001. The 
court later overturned the rule with respect to whether or not 
it was permissible for EPA to only set a 10,000-year standard 
instead of a standard going out to a million years or on the 
order of geologic stability. I believe the 2001 rule that EPA 
signed and issued was a solid standard. The court disagreed 
with that and said that it was inconsistent with part of the 
NAS report. So, the original EPA rule I think was very sound.
    Senator Boxer. OK. So you disagree with the court?
    Mr. Hill. I think the original EPA rule was very sound. The 
court at this point has spoken and we need to live with what it 
is that the court decided.
    Senator Boxer. Well, again, this is so disturbing because 
you sound like you would be just in line with what has been 
happening over there at EPA, you know, no independent thought, 
and continuing to see these battles in court that you lose 
every time not you, that they have lost every time.
    Now, if you have any papers on your recommendations on the 
standard, we would appreciate if you could get it to our 
Committee, anything in writing. All right? Could you do that 
for us?
    Mr. Hill. Anything in writing from me to the EPA.
    Senator Boxer. Yes. To EPA or anyone else regarding the 
standard.
    Mr. Hill. I will see what I have on that, Madam Chairman.
    Senator Boxer. Thank you. Thank you very much.
    Have you participated in making any recommendations--oh, we 
just asked that.
    Were you involved in any way with the drafting or review of 
the Nuclear Fuel Management and Disposal Act by DOE?
    Mr. Hill. This is the legislation that the Administration 
proposed, that I believe Secretary Bodman maybe sent up to 
Congress in 2007?
    Senator Boxer. Yes. Were you involved in any way with the 
drafting or review of the Nuclear Fuels Management and Disposal 
Act by DOE?
    Mr. Hill. Yes, I participated in the work at DOE and within 
the interagency process on that.
    Senator Boxer. Are you aware that the bill could preempt 
State public health laws and transportation routing decisions 
for nuclear waste?
    Mr. Hill. I am aware that there is a provision in that bill 
having to do with transportation.
    Senator Boxer. As General Counsel of DOE, did you support 
or approve the part of that legislation that dealt with the 
public health laws being preempted in transportation and 
routing decisions being preempted?
    Mr. Hill. I and other attorneys in the office and other 
non-attorneys at DOE participated in developing that.
    Senator Boxer. OK. Well, you will be glad to know that was 
my last question. What I am going to do is put in the record a 
letter in opposition to that bill signed by the Alliance for 
Nuclear Accountability, Alliance for Nuclear Responsibility, 
American Rivers, Blue Ridge Environmental Defense League, 
Citizen Action Coalition of Indiana, Citizen Alert, Citizens 
Awareness Network, Clean Water Action, Colorado Coalition for 
the Prevention of Nuclear War, Concerned Citizens for Nuclear 
Safety, Friends of the Earth, Grace Policy Institute, Green 
peace, National Environmental Trust, NRDC, Nevada Nuclear Waste 
Task Force, New Mexico Environmental Law Center, Nuclear Peace 
Foundation, Nuclear Energy Information Service, Nukewatch, 
Nuclear Watch of New Mexico, Physicians for Social 
Responsibility, Sierra Club, Southern Alliance for Clean 
Energy, Snake River Alliance, Tri-Valley CAREs, Union of 
Concerned Scientists, U.S. Public Interest Research Group, and 
Women's Action for New Directions.
    The reason I point this out is these are a lot of the 
groups that have brought lawsuits successfully. You know, it 
seems that we just keep on this same direction of political 
decisions in spite of the protective laws that Congress has 
passed.
    Senator Whitehouse, the floor is yours.
    Senator Whitehouse. Thank you.
    I wanted to follow my earlier line of questioning just a 
little bit further, Mr. Hill. I would like to ask first for 
your assessment of the reputation right now of the 
Environmental Protection Agency among four separate 
constituencies, if you could answer for each one.
    The first is EPA career staff. The second is the 
environmental community. The third is the environmental bar, 
the lawyers and judges that EPA works with and work around EPA. 
And the fourth is I would say the political establishment 
surrounding EPA that it must work with, particularly the Hill, 
us, and the State agencies that are often the EPA either 
colleagues or operate under EPA authority in their States--
those four categories.
    Mr. Hill. Your question, Senator, is the reputation that 
EPA has among those different constituencies at the current 
time?
    Senator Whitehouse. At the current time, yes.
    Mr. Hill. I don't know that I am really qualified to say 
what reputation the EPA has among the career EPA staff. I 
personally, of course, have worked with different career 
attorneys and other officials at EPA over time. I have always 
had a good constructive working relationship with them. I don't 
know that I have heard them actually say one thing or the other 
to me about what they view as being EPA's reputation.
    Senator Whitehouse. With respect to the staff, you have no 
concerns with respect to the reputation of EPA in that regard?
    Mr. Hill. Well, Senator, I think that is a different 
question. It is always of concern to me what reputation both 
the agency and the senior leadership of an agency have with the 
career staff. Again, just speaking about my experience at DOE, 
it is important to the mission of DOE and it is important for 
us being able to successfully carry out our mission that the 
career staff--and of course in my case the career attorneys, 
who are 99 percent of the attorneys at the department--have 
respect for both me and respect for the department's 
leadership.
    So I can tell you I believe the respect of the career 
employees is a very important thing to have. If I were EPA 
General Counsel, I would see what I could do to both assess 
that and to improve it to the extent I could.
    Senator Whitehouse. But you don't have an opinion on where 
that reputation stands right now?
    Mr. Hill. All I know about that, Senator, at the current 
time is what I might read in a particular report in the 
newspapers, and I don't always accept that whatever newspapers 
say is 100 percent true.
    Senator Whitehouse. As for the other three?
    Mr. Hill. The environmental community, I certainly have 
read about the environmental community and some of the 
prominent environmental organizations--NRDC and so forth--that 
have been quite critical of EPA and of some of EPA's decisions. 
There are others I have read about at different times where 
they have been complimentary of how EPA has been proceeding. I 
would say that in that context, the environmental community, at 
least according again to the press reports I read, has been 
critical of EPA.
    I should say that they are sometimes critical of DOE as 
well in various things, and we try to work with that. We get 
criticized not only by environmental organizations, but by 
industry and others as well. We just try to do the best we can.
    Senator Whitehouse. Do you think the reputation of EPA with 
the environmental community right now is at an unusual point in 
its history? I mean, are we looking at sort of an epic low? Is 
it a cause for concern? You are sort of suggesting that 
sometimes people are mad at us, and sometimes they are not. We 
have tough calls to make; no big deal, standard operating 
procedure for an agency. There might be something more than the 
SOP occasional disputes going on right now.
    Mr. Hill. Well, I certainly note, Senator, that some of the 
criticisms that have been tendered by various environmental 
organizations have been quite strident. And I do believe it is 
important for EPA to successfully carry out its mission, to 
work cooperatively with a number of those organizations. So I 
think it is important that their concerns be listened to and 
that EPA seek to work with them, just as with other interested 
stakeholders.
    Exactly how the reputation of EPA is in relation to how it 
has been at different times in the past, I can't really speak 
authoritatively to that.
    You asked about the environmental bar. I think there really 
are two aspects to that. One is of what people's views would be 
in terms of what their own particular policy objectives are or 
their policy views. The other would be how the attorneys view 
the work of the agency as a legal matter.
    Senator Whitehouse. Does this crowd know what they are 
doing?
    Mr. Hill. Right. And I think that it of course would be a 
matter of concern to some members of the bar if the agency 
decisions are challenged and EPA is losing on those. Of course, 
the members of the environmental bar are often both defending 
and challenging those decisions from the perspective of 
whatever clients they may have in a particular matter.
    So again, if I were confirmed as General Counsel, I think 
talking with members of the bar, particularly prominent members 
of the bar, would be a useful thing for me to do to gain what 
their views are and how I could best serve both the bar and EPA 
as General Counsel.
    Senator Whitehouse. And with State regulators and Congress?
    Mr. Hill. In that context, I of course read about the 
different stories in connection with oversight or various other 
things and the arguments that are made. I think that is 
probably a fair term for what is going on between different 
members or committees of Congress and EPA on various things.
    I know there are a number of difficult issues between EPA 
and the Congress, and individual Members of Congress and 
different committees. So I think there are a lot of difficult 
issues presented in that. Again, if I were confirmed, I have 
worked cooperatively with the committees of jurisdiction for 
the Department of Energy. We can't always agree on everything, 
and sometimes we have to strongly disagree about things. But I 
have tried to work as cooperatively as I can, with State 
agencies, political officials, as well as regulators, and with 
Members of Congress and their staffs. So if I were confirmed, I 
would seek to do that at EPA.
    Senator Whitehouse. Madam Chair, may I ask unanimous 
consent that my opening statement be made a part of the record, 
rather than deliver it now.
    Senator Boxer. Without objection.
    [The prepared statement of Senator Whitehouse follows:]

        Statement of Hon. Sheldon Whitehouse, U.S. Senator from 
                       the State of Rhode Island

    Thank you, Madam Chairman, and thank you for holding this 
hearing to consider David Hill for the position of Assistant 
Administrator and General Counsel of the Environmental 
Protection Agency. Madam Chairman, this is a very important 
hearing because, sadly, EPA is an agency in crisis.
    For most of its nearly 4-decade history, Americans could 
look to EPA for independent, science-based leadership in the 
area of environmental protection. Indeed, in a 1970 press 
release setting forth the agency's mission, its first 
administrator, William Ruckelshaus, stated unequivocally, and I 
quote:
    ``EPA is an independent agency. It has no obligation to 
promote agriculture or commerce; only the critical obligation 
to protect and enhance the environment.'' I repeat--"the 
critical obligation to protect and enhance the environment.''
    However, during the entire Bush administration, and 
especially under this administration, EPA has forsaken its 
longstanding mission. EPA's decisionmaking process has been 
hijacked by those in the White House and the agency who place 
the political interests of the Administration and its allies 
over any concerns for the environment, the integrity of the 
regulatory process, or the public health.
    Thus, in recent years, we have seen EPA leadership, in 
cahoots with its White House allies:

     Falsify data and fabricate results of studies regarding 
the safety of the air around the site of the collapse of the 
World Trade Center on September 11th;
     Selectively edit government reports to convey an 
artificial impression of uncertainty in the area of climate 
change science, placing the imprimatur of the government of the 
United States of America on views soundly rejected by a 
resounding majority of the world's scientific community;
     Routinely tamper with regulatory and scientific processes 
in order to achieve results sought by industry, at the expense 
of the environment;
     Hide, suppress, and delay the release of scientific 
findings in order to affect agency decisionmaking, as in the 
case of a 2002 report on the effects of mercury on children's 
health;
     Disregard or delay legally mandated scientific and 
administrative procedures, as in the case of the agency's 
failure to abide by the Supreme Court's recent decision on 
Greenhouse Gas Emissions;
     Stock the EPA's leadership and its advisory committees 
with persons who have clear ties to industries affected by 
agency decisions, removing from these positions respected 
scientists who argued for stronger regulation of industry;
     Reduce the reporting burdens on industries involved in 
the release of toxic chemicals into our land, sea and air;
     Ignore the recommendations of career staff and scientists 
when they collided with White House political imperatives, as 
in the case of the agency's decision on the so-called 
California wavier;
     Weaken enforcement and monitoring by opening fewer 
criminal investigations, filing fewer lawsuits, and levying 
smaller fines against corporate polluters; and
     Fail to protect, and indeed seek reprisals against, 
agency employees who point out problems, report legal 
violations, and attempt to correct factual misrepresentations 
made by their superiors.

    These are just some of the examples of the ways in which 
this Administration, and this Administrator, has compromised 
the mission of EPA to serve its own political, anti-environment 
agenda.
    The consequences of this Administration's conduct are dire 
indeed:
    First, the Administration's elevation of industry interests 
at the expense of independent, science-based decisionmaking 
threatens our ability to respond to complex challenges to 
public health, the environment, and national security.
    Second, the Administration's conduct demoralizes EPA's 
professional workforce--he scientists, lawyers, and regulatory 
experts to whom EPA owes its reputation as the gold standard in 
the area of environmental policy and who, time and time again 
during this Administration, have seen their expert counsel set 
aside in favor of a partisan political agenda.
    Third, and perhaps most importantly, the Administration's 
conduct compromises average Americans faith in the integrity of 
their government, and promotes the idea that in Washington, 
policy is always made by the special interests and never for 
the public good or according to the dictates of science and 
law.
    This is a serious failure of leadership with the potential 
for lasting harm to our environment and the confidence of the 
American people. I plan on looking further into this issue, and 
the challenges facing the next Administration in repairing the 
damage caused by this Administration in the upcoming months.
    The committee now has before it David Hill, the President's 
nominee for one of the highest-ranking positions at EPA--the 
position of Assistant Administrator and General Counsel.
    EPA's General Counsel is the chief legal advisor to the 
agency, providing legal support for agency rules, policies, and 
decisions, and articulating the agency's position before the 
courts. The person who fills this position has the 
responsibility to ensure that agency decisions and positions 
are firmly grounded in law, science and fact, and not held 
hostage to a partisan political agenda. An agency general 
counsel is not like a corporate general counsel, whose main 
role is to looking after the interests, and do the bidding, of 
his client even if that bidding skirts the margins of the law. 
An agency general counsel is the steward of the public good--
including, in EPA's case, the public health-- , not just an 
advocate for the results sought by his or her client. It is 
critical that the EPA's General Counsel understand and respect 
this crucial distinction. Unfortunately, the outgoing EPA 
General Counsel, Mr. Martella, appears not to have appreciated 
this distinction.
    My measuring stick for Mr. Hill's nomination will be 
whether he does understand that distinction. I have concerns, 
based on the information I have reviewed, that he does not. We 
need a General Counsel at EPA who is prepared to help the 
agency regain the stature and independence that it has lost 
during this Administration, to restore the Agency's commitment 
to the rule of law and science, and to help it fulfill the 
mission announced for it in 1970 by Administrator Ruckelshaus. 
I look forward to discussing my concerns with Mr. Hill.

    Senator Whitehouse. I would just sum up by offering my own 
personal observation of where we are. My own personal 
observation is that at present the integrity of the 
Environmental Protection Agency at its senior levels is shot. I 
see the abysmal litigation record of the Environmental 
Protection Agency, the scornful remarks of career United States 
judges as to its theories, and the lack of any follow--up or 
apparent concern on the part of EPA about all that--just sort 
of blandly going ahead.
    It is all leading to a conclusion that the current 
management of the EPA is perfectly satisfied with losing all 
these cases because it no longer cares to win. It no longer 
even cares to get it right. Its sole job is to do what it 
perceives to be the political bidding of the Administration; 
that this is a department that has completely and utterly taken 
a dive into the tank.
    I think that is a very difficult position for a new General 
Counsel to go into. You have independent obligations as a 
member of the bar regarding the circumstances you have around 
yourself in a corporate context. You would have obligations for 
quiet and noisy exits if you felt that there were improper 
conduct going on.
    I take this terribly seriously because I come to this job 
and from my whole life experience with the very, very strong 
belief that the government of the United States of America is 
probably the most powerful and important force for good on the 
face of the Earth. And one of the reasons that it is that way 
is because of ways in which we have detracted from the powers 
of the President or of leaders of Congress; the ways we have 
separated those powers; the ways we have set up independent 
agencies; the very nature of administrative law that you don't 
just do what the President says. We set up certain agencies 
that have the purpose of doing what is right, what the facts 
dictate, what the science dictates, and what the law demands, 
and that comes first.
    And when I see those principles attacked, ignored, abused, 
rejected, I see an assault on something that is much larger 
than just the current issue and trying to make things nice for 
the political interests behind this President. It really 
affects back to where I started. It undercuts and corrodes the 
greatest force for good on the face of this human Earth that we 
inhabit right now.
    I just want to close by saying how very troubled I am right 
now by what is going on at the Environmental Protection Agency. 
I am on the Judiciary Committee as well. We have had a very 
similar problem at the Department of Justice that caused the 
Attorney General and his entire senior staff ultimately to 
resign. I see far more similarities than differences right now 
between the posture of the Administrator of EPA and the senior 
staff, the political staff there, than differences from what I 
saw at the Department of Justice.
    I would really urge you to go in there with your head up on 
full alert as to the nature of the organization you are going 
into, and with a keen personal regard for your own reputation 
and for the obligations that you have a member of the bar to 
adhere to certain minimum core professional standards no matter 
what is going on around you, and no matter where the directive 
is coming from.
    I just caution you in that regard because I am very, very 
concerned about what is going on. This is an agency with an 
enormously proud history. I see particularly in those four 
areas a reputation that is just in tatters and a community of 
interests around this organization that just says forget it, 
let's just wait until we can get new and decent people here and 
start fresh next year. And that is a very, very sad thing for 
me to see.
    Senator Boxer. Senator, thank you for your remarks. You 
absolutely speak for me. When I opened up my statement, I 
quoted President Nixon, who said that the EPA should be ``a 
strong independent agency.'' And then in questioning Mr. Hill--
I mean, he has been very straightforward with us--he said, 
look, the Administrator works for the President.
    There is a fine line here. The Administrator is supposed to 
do what is right for public health. This is the root of the 
problem. We have had all of these political decisions made over 
there and they have been overturned by the courts time in and 
time out. When I have asked Mr. Hill about a few cases he is 
aware of, he hasn't agreed with the courts. These aren't 
liberal courts. The D.C. Circuit Court is far from a liberal 
court, with Janice Rogers Brown joining in on some of these 
decisions.
    Now, I do have one more question regarding--this registry 
is of concern to me, rather the radiation standard at Yucca. So 
I want to ask you, you didn't agree with the court decision 
regarding the radiation standard at Yucca. My question is, have 
you discussed this with the Department of Justice? Setting the 
rules consistent with the court?
    Mr. Hill. The decision of the D.C. Circuit in that 
particular matter I believe is final. And so then back in 2005, 
I believe it was 2005, the EPA published a notice of proposed 
rulemaking to address the decision and there have been various 
discussions since then.
    Senator Boxer. But that rule has not been set. It is years. 
So it is still hanging out there. Have you been involved in any 
discussions about the rule?
    Mr. Hill. There have been interagency discussions on that 
matter, yes.
    Senator Boxer. Have you discussed it with the Justice 
Department?
    Mr. Hill. There have been discussions involving all of the 
interested agencies.
    Senator Boxer. Have you discussed it with the Justice 
Department in particular?
    Mr. Hill. The Justice Department has been in some of those 
discussions, yes.
    Senator Boxer. OK. Have you discussed it with OMB?
    Mr. Hill. OMB and other agencies have been involved in 
those discussions.
    Senator Boxer. Do you agree with the Justice Department's 
view on how the rule ought to proceed?
    Mr. Hill. That matter hasn't been finalized, Madam 
Chairman, and so I don't feel at liberty to talk about the 
details of those discussions.
    Senator Boxer. Have you put anything in writing about your 
views and sent it to Justice or OMB or anybody else on this 
rule?
    Mr. Hill. I don't remember whether I have. I may have.
    Senator Boxer. I would like to have copies of those if I 
might. If you could get that to us, we would be very 
appreciative on this.
    Well, let me just say, you know, I appreciate your 
frankness with the Committee. I don't agree with your view of 
your role. I think you are basically telling me, and as I say, 
I do appreciate your straightforward way you see your role, and 
the way you see the Administrator's role. You are on the record 
advocating against the public right to know in the Savannah 
case, for secrecy in the Savannah case. You were overruled by 
the NRC at the end of the day.
    And so I know that you certainly have the qualifications to 
be the choice here, but we are going to have to do some careful 
thinking about this. But we do appreciate your honesty with the 
Committee. We look forward to receiving some of these documents 
I have requested.
    I have to ask you just two boilerplate questions so we can 
move this forward. In order for the Committee and other 
committees to exercise their legislative and oversight 
responsibilities, it is important that committees of Congress 
are able to receive testimony, briefings, and other 
communications, which you promised me you would send.
    So, one, do you agree if confirmed as EPA General Counsel 
to appear before this Committee or designated members of this 
Committee and other appropriate committees of the Congress and 
provide information, subject to appropriate necessary security 
protection, with respect to your responsibilities as General 
Counsel?
    Mr. Hill. Yes.
    Senator Boxer. Do you agree when asked to give your 
personal views, even if those views differ from the 
Administration in office at the time?
    Mr. Hill. I would, Madam Chairman.
    Senator Boxer. Three, do you agree to ensure that 
testimony, briefings, documents, and electronic and other forms 
of communication of information are provided to this Committee 
and its staff and other appropriate committees in a timely 
manner?
    Mr. Hill. I would try to do that, Madam Chairman.
    Senator Boxer. And four, do you know of any matters which 
you may or may not have disclosed that might place you in any 
conflict of interest if you are confirmed as General Counsel?
    Mr. Hill. No.
    Senator Boxer. OK. Well, we do thank you. We thank your 
family for coming. I thank Senator Whitehouse and other 
colleagues who joined me.
    We stand adjourned.
    Thank you, Mr. Hill.
    [Whereupon, at 10:27 a.m. the committee was adjourned.]

        Statement of Hon. Benjamin L. Cardin, U.S. Senator from 
                         the State of Maryland

    Thank you for holding this hearing today. Today we'll hear 
testimony from David Hill, nominee for the General Counsel of 
EPA. The EPA's office of General Counsel provides legal 
guidance on the Agency's rules and policies as well as support 
for the Agency's permits and response actions. Given the 
testimony we heard yesterday regarding the Clean Water 
Restoration Act and testimony we've heard over the last year 
from EPA regarding the California waiver and other issues, it 
is clear that we need clarity and timeliness in EPA's 
rulemaking. Moreover, we need the decisions and rules the EPA 
makes to be scientifically justifiable and legally defensible.
    I look forward to hearing Mr. Hill's testimony on view of 
his role as General Counsel of the EPA. I am further interested 
in Mr. Hill's perspective of his being a forceful legal 
advocate for the well considered, scientifically based rules 
the EPA enforces.
    Thank you Madame Chairman.

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

    On Sept. 29, 2000 in Saginaw, Michigan, then-Governor Bush 
made the following campaign promise. If he were to become 
President he pledged to ``require all power plants to meet 
clean air standards in order to reduce emissions of sulfur 
dioxide, nitrogen dioxide, mercury and carbon dioxide within a 
reasonable period of time.''
    Unfortunately, less than 60 days after taking office, 
President Bush began backing away from that pledge.
    In a March 13, 2001 letter President Bush said, ``I intend 
to work with the Congress on a multi-pollutant strategy to 
require power plants to reduce emissions of sulfur dioxide, 
nitrogen oxides, and mercury. I do not believe, however, that 
the government should impose on power plants mandatory 
emissions reductions for carbon dioxide, which is not a 
``pollutant'' under the Clean Air Act.''
    Unfortunately, in 2005, President Bush continued to pull 
away from his initial pledge. He decided not to work with 
Congress on a multi-pollutant strategy, and his Clear Skies 
proposal failed because it would not have improved the 
environment and ignored carbon dioxide. He then attempted to 
implement his Clear Skies proposal through regulation in the 
form of the Clean Air InterState Rule and the Clean Air Mercury 
Rule.
    One year ago, the Supreme Court rejected the President's 
position that carbon dioxide is not a pollutant. The Supreme 
Court told EPA that their decision not to regulate carbon 
dioxide ``rests on reasoning divorced from the [Clean Air 
Act].'' In other words, the Supreme Court decided that EPA 
failed to follow the clear directives of the law.
    In 2006, the D.C. Circuit Court concluded that EPA's 
attempt to weaken the regulation known as New Source Review 
would make sense ``only in a Humpty Dumpty world.'' And in 
February of this year, the D.C. Circuit vacated the Clean Air 
Mercury Rule. In their decision the court said EPA's Mercury 
Rule was based on ``the logic of the Queen of Hearts, 
substituting the EPA's desires for the plain text'' of the law.
    In my opinion, this was a welcome decision. The Clean Air 
Mercury Rule was deeply flawed and did not go far enough to 
protect the public's health. EPA should have regulated mercury 
as a hazardous air pollutant and imposed regulations that would 
require every covered power plant to install best available 
controls to reduce their mercury emissions.
    Finally, late last month, the DC Court heard oral arguments 
on a challenge to the Clean Air InterState Rule, and many 
believe the Court could overturn that rule as well. Given EPA's 
track record in the courts, I'd say it is very likely. In 
short, we are no closer to cleaner air than we were in 2000.
    What this means is that in the 8 years since then Governor-
Bush promised to address all four major pollutants from power 
plants: 190,000 people have died prematurely due to air 
pollution, 5 million babies have been exposed to dangerous 
mercury levels in the womb, 580 million hours of work have been 
missed because of asthma and other respiratory diseases, and 
countless dollars has been spent on health care treating the 
many illnesses these pollutants cause. That is not an 
environmental legacy to be proud of.
    Given the fact that the EPA has had so many of its 
proposals overturned by the courts, I think it is an 
understatement to say that EPA has suffered from some bad legal 
advice. The Supreme Court and the District Courts have 
repeatedly chastised EPA for failing to follow the law and 
making Alice in Wonderland types of interpretations of the 
Clean Air Act. Mr. Hill, this is the legacy of the position you 
are seeking to fill.
    I sincerely hope that if you are confirmed as EPA's next 
General Counsel, you will follow through with the commitment 
made in your written statement to help the agency advance its 
mission of protecting human health and the environment in a 
manner that fully complies with the law.

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