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S. HRG. 109–1029

NOMINATIONS OF RICHARD CAPKA, JAMES B.

GULLIFORD AND WILLIAM L. WEHRUM

HEARING

BEFORE THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

THE NOMINATIONS OF RICHARD CAPKA, TO BE ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION; JAMES B. GULLIFORD, TO BE ASSISTANT ADMINISTRATOR, OFFICE OF PREVENTION, PESTICIDES AND

TOXIC SUBSTANCES, U.S. ENVIRONMENTAL PROTECTION AGENCY;

AND WILLIAM L. WEHRUM, TO BE ASSISTANT ADMINISTRATOR, OFFICE OF AIR AND RADIATION, U.S. ENVIRONMENTAL PROTECTION

AGENCY

APRIL 5, 2006

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

(

Available via the World Wide Web: http://www.access.gpo.gov/congress.senate
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JAMES M. INHOFE, Oklahoma, Chairman

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

LINCOLN CHAFEE, Rhode Island

LISA MURKOWSKI, Alaska

JOHN THUNE, South Dakota

JIM DEMINT, South Carolina

JOHNNY ISAKSON, Georgia

DAVID VITTER, Louisiana

JAMES M. JEFFORDS, Vermont

MAX BAUCUS, Montana

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

FRANK R. LAUTENBERG, New Jersey

BARACK OBAMA, Illinois

ANDREW WHEELER, Majority Staff Director

KEN CONNOLLY, Minority Staff Director

(II)
(III)

CONTENTS

Page

APRIL 5, 2006

OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana ............................ 14

Bond, Hon. Christopher S., U.S. Senator from the State of Missouri ............... 7

Boxer, Hon. Barbara, U.S. Senator from the State of California ....................... 11

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

statement .............................................................................................................. 48

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

York ....................................................................................................................... 17

DeMint, Hon. Jim, U.S. Senator from the State of South Carolina .................. 10

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

Jeffords, Hon. James M., U.S. Senator from the State of Vermont ................... 4

Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey ......... 8

Lieberman, Hon. Joseph I., U.S. Senator from the State of Connecticut, prepared statement ................................................................................................... 48

Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska ......................... 12

Thune, Hon. John H., U.S. Senator from the State of South Dakota ................ 16

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

statement .............................................................................................................. 47

Warner, Hon. John W., U.S. Senator from the Commonwealth of Virginia ...... 3

WITNESSES

Capka, Richard, nominated to be Administrator, Federal Highway Administration ................................................................................................................... 25

Committee questionnaire ................................................................................. 59

Prepared statement .......................................................................................... 49

Responses to additional questions from:

Senator Baucus .......................................................................................... 57

Senator Boxer ............................................................................................ 56

Senator Inhofe ........................................................................................... 51

Senator Lautenberg ................................................................................... 58

Senator Murkowski ................................................................................... 55

Senator Voinovich ..................................................................................... 54

Gulliford, James, B., nominated to be an Assistant Administrator, U.S. Environmental Protection Agency .............................................................................. 32

Committee questionnaire ................................................................................. 88

Prepared statement .......................................................................................... 75

Responses to additional questions from:

Senator Bond ............................................................................................. 79

Senator Boxer ............................................................................................ 83

Senator Inhofe ........................................................................................... 76

Senator Jeffords ......................................................................................... 80

Senator Lautenberg ................................................................................... 83

Senator Murkowski ................................................................................... 79

Wehrum, William, L., nominated to be an Assistant Administrator, U.S. Environmental Protection Agency .............................................................................. 34

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

Prepared statement .......................................................................................... 105
Page

IV

Wehrum, William, L., nominated to be an Assistant Administrator, U.S. Environmental Protection Agency—Continued

Responses to additional questions from:

Senator Boxer ............................................................................................ 133

Senator Carper .......................................................................................... 130

Senator Clinton ......................................................................................... 127

Senator Inhofe ........................................................................................... 106

Senator Jeffords ......................................................................................... 108

Senator Lautenberg ................................................................................... 132

Senator Lieberman .................................................................................... 130

Senator Murkowski ................................................................................... 129

Senator Voinovich ..................................................................................... 123

ADDITIONAL MATERIAL

Letters of support for nominee Richard Capka:

American Association of State Highway and Transportation Officials,

John Horsley, executive director, March 17, 2006 ..................................... 22

American Highway Users Alliance, Gregory M. Cohen, president and

CEO, March 17, 2006 ................................................................................... 21

American Road & Transportation Builders Association, T. Peter Ruane,

president and CEO, April 4, 2006 ............................................................... 23

American Trucking Associations, Bill Graves, president and CEO,

April 4, 2006 ................................................................................................ 24

The Associated General Contractors of America, Stephen E. Sandherr,

CEO, March 29, 2006 ................................................................................... 20

Resolution, Associated General Contractors of America in support of Richard

Capka, March 21, 2006 ........................................................................................ 74
(1)

NOMINATIONS OF RICHARD CAPKA, JAMES B.

GULLIFORD AND WILLIAM L. WEHRUM

WEDNESDAY, APRIL 5, 2006

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

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

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

of the committee) presiding.

Present: Senators Inhofe, Warner, Bond, Voinovich, Murkowski,

Thune, DeMint, Jeffords, Baucus, Boxer, Carper, Clinton, and Lautenberg.

Senator INHOFE. The meeting will come to order.

General you are seated in place, so you are in the right place.

We will go ahead and start. We will have a pretty good participation this morning, I understand. Right now, there are staff of several of the Senators, but several are going to be coming by.

OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S.

SENATOR FROM THE STATE OF OKLAHOMA

The purpose of today’s hearing is to consider the President’s

nominees for three vital positions within the Administration, including the head of the Federal Highway Administration and two

Assistant Administrator positions for the EPA.

It is my hope that we can move all these nominees quickly. I

want to extend a welcome to all of you and the members of your

families who are here today. I want each one of you to feel free to

introduce any members of your family who are here.

I also want to thank all of you for your willingness to serve our

Nation. Anyone who has been through this before understands all

too well that it is no small task of a nominee or a nominee’s family

to go through the confirmation process that you are facing.

On the first panel, we have retired General Richard Capka, who

has been nominated to be Administrator of the Federal Highway

Administration. Rick Capka is a very good choice to head the

FHWA. He is a career engineer, beginning at the Army Corps of

Engineers after graduating from West Point. After 29 years of military service to our country, he retired as a Brigadier General and

then went over to the Massachusetts Toll Authority before being

tapped to serve this country again as Deputy Administrator for the

FHWA under Mary Peters, who did an excellent job as Administrator.

I have talked to you about that before. Mary did an excellent job,

and one of the things she was was responsive. As soon as some-
2

thing happened, she was there and you were there with her. So you

know that, and that is one of the things we would look for in your

service, too.

Mary stepped down just prior to Hurricanes Katrina and Rita.

General Capka and FHWA have received wide acclaim for their response to these disasters.

On the second panel, we will have James Gulliford and William

Wehrum, both of whom have been nominated to fill critical Assistant Administrator positions at the EPA. Mr. Gulliford has been

nominated to head the EPA Office of Prevention, Pesticides and

Toxic Substances.

Since 2001, Mr. Gulliford has been based in Kansas City as

EPA’s Regional Administrator for Region VII. As Regional Administrator, Mr. Gulliford is the chief of all technical and administrative operations of the EPA in Region VII, which is comprised of Nebraska, Iowa, Kansas and Missouri.

Region VII has a staff of over 550 and an annual budget of ap- proximately $500 million. Prior to joining EPA, Mr. Gulliford was

the director of Iowa’s Department of Soil Conservation.

Mr. Wehrum has been nominated to head the EPA Office of Air

and Radiation. Mr. Wehrum is currently the Acting Assistant Administrator to this office. Prior to his assuming the acting role, he

served the EPA as both Principal Deputy Assistant Administrator

and Counsel to the Assistant Administrator of the Office of Air and

Radiation.

This committee has seen much of Mr. Wehrum lately as a witness representing the EPA three times in the past 6 months. He

has answered numerous questions before the committee and over

70 follow-up questions from the committee’s minority members

alone. I believe that all of the nominees that we have had during

this Administration, that Mr. Wehrum is the most familiar with

this committee.

Once again, I thank all of you for being here today.

[The prepared statement of Senator Inhofe follows:]

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

STATE OF OKLAHOMA

Good Morning. The purpose of today’s hearing is to consider the President’s nominees for three vital positions within the Administration, including the head of the

Federal Highway Administration and two Assistant Administrator positions at EPA.

It is my hope that we can move all of these nominees quickly. I want to extend a

welcome to all of you and the members of your families who are here today. I also

want to thank all of you for your willingness to serve our Nation. Anyone who has

been through this before understands all too well that it is no small task of a nominee or a nominee’s family to go through the confirmation process that you are facing.

On the first panel, we have retired General Richard Capka, who has been nominated to be Administrator of the Federal Highway Administration. Rick Capka is

a very good choice to head the FHWA. He is a career engineer, beginning at the

Army Corps of Engineers after graduating from West Point. After 29 years of military service for our country, he retired as a Brigadier General. He then went over

to the Massachusetts Toll Authority before being tapped to serve this country again

as the Deputy Administrator of FHWA under Mary Peters—who did an excellent

job as Administrator. Mary stepped down just prior to Hurricanes Katrina and Rita.

General Capka and FHWA have received wide acclaim for their response to these

disasters.

On our second panel we will have James Gulliford and William Wehrum—both

of whom have been nominated to fill critical Assistant Administrator positions at

EPA.
3

Mr. Gulliford has been nominated to head the EPA Office of Prevention, Pesticides and Toxic Substances. Since 2001, Mr. Gulliford has been based in Kansas

City as EPA’s Regional Administrator for Region 7. As Regional Administrator, Mr.

Gulliford is the chief for all technical and administrative operations of the EPA in

Region 7—which is comprised of Nebraska, Iowa, Kansas and Missouri. Region 7

has a staff of over 550 and an annual budget of approximately $500 million. Prior

to joining EPA, Mr. Gulliford was the Director for Iowa’s Department of Soil Conservation.

Mr. Wehrum has been nominated to head the EPA Office of Air and Radiation.

Mr. Wehrum is the current Acting Assistant Administrator to this office. Prior to

him assuming the Acting role, he served the EPA as both Principal Deputy Assistant Administrator and Counsel to the Assistant Administrator in the Office of Air

and Radiation. This committee has seen much of Mr. Wehrum lately as a witness

representing EPA three times in the past 6 months. He has answered numerous

questions before the committee and over 70 follow-up questions from the committee’s Minority members alone. I believe that of all the nominees that we have had

during this Administration, Mr. Wehrum is the most familiar to the committee.

Once again, thank you all for being here today.

Senator INHOFE. Do you want to go ahead and do his introduction?

Senator WARNER. If you wish to have other comments, Senator?

Senator INHOFE. I think it might be better with the number of

members we have if you go ahead with your introduction, Senator

Warner, and then we will go ahead with our opening statements.

It gives you some more time.

OPENING STATEMENT OF HON. JOHN W. WARNER, U.S.

SENATOR FROM THE COMMONWEALTH OF VIRGINIA

Senator WARNER. Delighted, Mr. Chairman and members of the

committee.

You know, one of our great responsibilities is to find well-qualified individuals to serve in these public service positions. I commend the President of the United States for selecting Mr. Capka

to be the Administrator of the Federal Highway Administration. I

have had the opportunity to work with him.

As Brigadier General, he spent 29 years in the U.S. Army Corps

of Engineers serving across the world in positions managing infrastructure projects from water infrastructure, to road, flood response

in California. He was awarded the Distinguished Service Medal,

which is the highest-ranking medal given to officers for their distinguished service in non-combatant situations mostly, and the Defense Superior Service medal and the Legion of Merit.

After his retirement from active duty, General Capka served as

CEO and executive director of the Massachusetts Turnpike Authority, where he directed and turned around Boston’s famous $14.5

billion Big Dig project. His experience as a practicing engineer and

in managing infrastructure across the world, coupled with his experience managing highway projects, he has served this country well.

He has been the Deputy Administrator since 2002. The committee worked very closely with him and his staff crafting the Surface Transportation Reauthorization bill, passed and signed into

law last year.

I will put the balance of my statement in the record, but he has

an extraordinary family history, and perhaps he will allude to it.

Do I see some of your family is with you here this morning?

Mr. CAPKA. Sir, I am flying solo this morning.
4

Senator WARNER. Flying solo this morning. All right, but I think

it should be in the public record, two sons, both of them followed

in the father’s career in the military for periods of time.

Thank you, Mr. Chairman, and good luck to you. You are on your

own.

[The prepared statement of Senator Warner follows:]

STATEMENT OF HON. JOHN WARNER, U.S. SENATOR FROM THE

COMMONWEALTH OF VIRGINIA

Thank you Mr. Chairman for holding this hearing today. One of our greatest responsibilities as members of the U.S. Senate is to provide advice and consent regarding the President’s nominees for executive branch positions. Today, I have the

pleasure to introduce an accomplished public servant, Richard Capka, to be the Administrator of the Federal Highway Administration.

Brigadier General J. Richard Capka spent 29 years in the U.S. Army Corps of Engineers serving across the world in positions managing infrastructure projects from

water infrastructure to roads to flood response in California. He has been awarded

the Distinguished Service Medal, the Defense Superior Service Medal, and the Legion of Merit.

After his retirement from active duty, General Capka served as CEO and executive director of the Massachusetts Turnpike Authority (MTA) where he directed and

turned around Boston’s $14.5 billion ‘‘Big Dig’’ project.

His experience as a practicing engineer and in managing infrastructure projects

across the world coupled with his experience managing highway megaprojects has

served General Capka well in his role as Deputy Administrator of FHWA since August 2002. This committee worked very closely with him and his staff in crafting

the Surface Transportation Reauthorization bill, SAFETEA, passed and signed into

law last year. It was a 3-year odyssey that tested his mettle and led to his nomination to run the FHWA.

Perhaps his most important accomplishment as an engineer however, is shared

with his wife Susan. They have raised two sons who served in the Army and are

engineers, one of whom followed in his father’s footsteps to attend the U.S. Military

Academy at West Point. I had secured an appointment for him to attend the U.S.

Air Force Academy but he decided on West Point instead. They now have left active

duty but are still serving the public building light rail transit systems in the Northwest United States and as a geotechnical engineer at the Federal Energy Regulatory

Commission (FERC). Most important, with their wives Mary Beth and Kristen, General Kapka’s sons are raising the next generation of America’s engineers, 3

grandsons and twins on the way.

He is ready, willing, and able to get to work. I applaud his willingness to serve

this President, the Secretary of Transportation, and the American people and urge

the committee to quickly report his nomination to the full Senate.

Mr. CAPKA. Thank you, sir.

Senator INHOFE. Thank you, Senator Warner.

We will now continue with our opening statements.

Senator Jeffords.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S.

SENATOR FROM THE STATE OF VERMONT

Senator JEFFORDS. Thank you, Mr. Chairman.

I want to thank all of our nominees here this morning for their

commitment to public service.

I want to welcome our first nominee, Richard Capka, to head the

Federal Highway Administration. I look forward to learning from

Mr. Capka about the implementation of SAFETEA and his views

on how we will finance the Federal Surface Transportation Program in the years to come.

Welcome to James Gulliford, the nominee to head the Office of

Prevention, Pesticides and Toxic Substances. This office has not

had a political appointee in charge since Governor Whitman left
5

EPA in 2003. During this time, the Center for Disease Control uncovered widespread human exposure to untested industrialized

chemicals. Several studies confirm that even newborn babies are

exposed to hundreds of manmade chemicals, many of which have

been linked to cancer and neuro-development disorders.

The Government Accountability Office revealed that EPA has required testing for fewer than 200 of the 62,000 chemicals in commerce since 1979, and only five chemicals have been regulated. In

addition, the GAO found the Agency lacks sufficient data to ensure

that political health and environmental risk of new chemicals are

identified. Faced with these challenges, the Bush administration

has chosen to cut funding for these critical functions and weaken

the community’s Right-to-Know Toxic Release Inventory Program.

Thank you.

Mr. William Wehrum is named to be Assistant Administrator for

Air and Radiation at the Environmental Protection Agency. Quite

frankly, I am troubled by this nomination, given that Mr. Wehrum

has served a top political appointment in this office since 2001.

During his tenure, we witnessed this Administration’s repeated assaults on our Nation’s environmental protection laws, especially

the Clean Air Act.

During this time, big energy companies have complete access to

the decisionmakers at the top levels of the Bush administration

and the EPA. We see reports in the national press that Mr.

Wehrum and his predecessor, Mr. Holmstead, have crafted rules

based on input from their former colleagues in industry, rather

than the advice of the EPA career staff.

At the industry’s request, rules and regulations have been put

forth that allow the dirtiest powerplants to increase their electricity production without installing required modern pollution controls. A report of the EPA Inspector General suggests that the outcome of EPA’s mercury rule was predetermined by ‘‘senior management,’’ and analysis promised to a Federal advisory committee was

abruptly cancelled by Mr. Wehrum and his predecessor.

Another report by the EPA Inspector General forces us to conclude that neither Mr. Wehrum nor his predecessor have completely been candid about the effect of EPA’s proposed New Source

Review rules on ongoing enforcement actions.

The person who accepts this role will be a steward of the Nation’s air quality. We ask that he serve as our conscience on air pollution and we ask that his conduct and his decisionmaking process

be above reproach, both in terms of scientific basis and in transparency to the public.

I have concerns about whether the 5-year public record put forth

by this nominee and this Administration upholds these standards.

I hope that during the questioning, Mr. Wehrum can convince me

that these concerns are unfounded.

Thank you, Mr. Chairman.

[The prepared statement of Senator Jeffords follows:]

STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM THE

STATE OF VERMONT

Thank you, Mr. Chairman, and I want to thank all of our nominees here this

morning for their commitment to public service.
6

I want to welcome our first nominee, Richard Capka, to head the Federal Highway Administration. I look forward to hearing from Mr. Capka about the implementation of SAFETEA and his views on how we will finance the Federal surface transportation program in the years to come.

Welcome, James Gulliford, the nominee to head the Office of Prevention, Pesticides and Toxic Substances. This office has not had a political appointee in charge

since Governor Whitman left the EPA in 2003. During this time, the Center for Disease Control uncovered widespread human exposure to untested industrial chemicals. Several studies confirm that even newborn babies are exposed to hundreds of

man-made chemicals, many of which have been linked to cancer and neuro-developmental disorders.

The Government Accountability Office revealed that the EPA has required testing

for fewer than 200 of the 62,000 chemicals in commerce since 1979, and only five

chemicals have been regulated. In addition, the GAO found the Agency ‘‘lacks sufficient data to ensure that potential health and environmental risks of new chemicals

are identified.’’

Faced with these challenges, the Bush administration is proposing to cut funding

for these critical functions and to weaken the Community-Right-To-Know ‘‘Toxic Release Inventory Program.’’ Mr. Gulliford, I look forward to hearing your plans to

overcome these hurdles if you are confirmed.

Our third nominee is William Wehrum, named to be the Assistant Administrator

for Air and Radiation at the Environmental Protection Agency. Quite frankly, I am

troubled by this nomination, given that Mr. Wehrum has served as a top political

appointee in this office since 2001. During his tenure, we have witnessed this Administration’s repeated assaults on our Nation’s environmental protection laws, especially the Clean Air Act.

In 1990, Congress and the first President Bush agreed on far-reaching changes

to the Clean Air Act to improve the health of every single American. As a member

of this committee, I sat through days of meetings in this building and over in Majority Leader Mitchell’s office as we developed this delicate compromise.

Throughout the 1990’s, then-Presidents Bush and Clinton moved to fully implement these important air-pollution reduction measures. But in the past 5 years, this

Administration has systematically dismantled these protections. During this time,

big energy companies have had complete access to the decisionmakers at the top levels of the Bush administration and the EPA.

We see reports in the national press that Mr. Wehrum and his predecessor, Mr.

Holmstead, have crafted rules based on input from their former colleagues in industry rather than the advice of EPA career staff. At the industry’s request, rules and

regulations have been put forth that allow the dirtiest powerplants to increase their

electricity production without installing the required modern pollution controls. The

result: more mercury in our environment causing learning disabilities in children;

greater soot and ozone causing lung and respiratory illness in children and seniors;

more haze and acid rain destroying our forests.

Polluters win, public health loses. This is a most disturbing trend, and one that

I can only assume that Mr. Wehrum has had an active role in promoting during

his tenure with the EPA. A report issued by the EPA Inspector General suggests

that the outcome in the EPA’s mercury rule was pre-determined by ‘‘senior management,’’ and analyses promised to a Federal advisory committee were abruptly canceled by Mr. Wehrum and his predecessor. Another report by the EPA Inspector

General forces us to conclude that neither Mr. Wehrum nor his predecessor has

been completely candid about the effect of the EPA’s proposed New Source Review

rules on ongoing enforcement actions.

Mr. Chairman, you and I have worked together on the committee for many years

and we have confirmed many qualified nominees from all ends of the political spectrum. While I have not always agreed with the views of candidates, I believe the

President should be able to choose his own people to carry out his policies, and I

have always voted in this committee to confirm nominees.

Having said that, I also believe the Constitution imposes an obligation upon this

body, and this committee, to carefully scrutinize nominees and not simply

rubberstamp those who come before us for positions of the public trust. The person

who accepts this role will be the steward of our Nation’s air quality. We ask that

he serve as our conscience on air pollution, and we ask that his conduct and his

decisionmaking process be above reproach, both in terms of its scientific basis and

its transparency to the public.

I have concerns about whether the 5-year public record put forth by this nominee

and this Administration upholds these standards. I hope that during our questionand-answer period, Mr. Wehrum can convince me that these concerns are unfounded.
7

Senator INHOFE. Thank you, Senator Jeffords.

Senator Bond.

OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, U.S.

SENATOR FROM THE STATE OF MISSOURI

Senator BOND. Thank you very much for holding these hearings

today, Mr. Chairman. We are delighted to have these fine nominees

before us.

Briefly, with Mr. Capka, I know that he has endured the Big Dig

in Boston and come out with some successes out of a project that

was mired in the mud. He is well known to the State transportation officials in Missouri, as well as other States, and based on

the reports we get from the folks who are actually building the

highways in the States, I can say that he deserves our wholehearted support.

On the next panel, I have the great privilege of introducing a

nominee who has served very well. I am proud to introduce him to

the committee. I claim him as somewhat of a constituent because

he currently serves EPA’s Region VII as the Regional Administrator for the region covering Missouri. He has done a fine job for

EPA and a fine job for Missouri, even if he did come from Iowa.

He has had 25 years of professional experience administering environmental programs in agriculture and mining. Before serving as

Regional Administrator, he was Director of the Iowa Soil Conservation Program. Previously, he was with Iowa State University and

Southern Illinois in mine reclamation and environmental protection.

As you can imagine, I am much more familiar with what he has

done in Missouri. I can tell you that the record has been outstanding. He oversaw EPA’s participation in a project to clean up

Smithville Lake in partnership with the Missouri Corngrowers,

USDA, and other agricultural organizations. The project produced

successful voluntary watershed efforts by farmers to establish best

management practices to protect a very important lake from

atrazine runoff. Atrazine is a very important herbicide in corn production.

As a result of that project, the atrazine impairment for the lake

has been removed. He has helped get out the word on soy biodiesel,

recognizing the importance of alternative fuels and the opportunity

of agriculture to contribute to the next generation of low-sulfur diesel fuels.

Together, we participated in the Missouri State Fair Agricultural

Leadership Listening Forums, as well as efforts in Southwest Missouri with communities and farmers to protect water quality in

high-growth areas. He has been a very successful Regional Administrator and he will be good for the Nation and its pesticide programs.

Finally, Mr. Chairman, I regret to say that today is the kind of

day with respect to our third nominee that keeps so many fine candidates from serving their country, the kind of day that means so

many of them say ‘‘no, thank you’’ when their country calls, the

kind of day that makes family members in the audience cry.

You see, we are about to witness the fruition of a long-planned

attack in opposition to the EPA Air nominee. To help the cause, de-
8

tails of a mysterious EPA proposal not formalized by the Agency,

not proposed as a rule, only commented upon internally by Agency

officials in a private memo, are leaked to an environmental group

and then to the press.

In perfect coordination, a member releases a press release and

stories appear in the Washington Post and the New York Times

criticizing the proposal and nominee. Even though the leaked

memo was written in December, all this coincidentally is brought

to light in the days before a confirmation hearing in April.

What is the issue about? Well, it has to do with whether EPA

should revoke an air policy which forces facilities to install control

technology even if they no longer exceed emissions limits. Now, you

think that is pretty dry stuff, but of course that is not why it was

done. Instead, it was done to create a scene, to get media attention,

to make things uncomfortable for the nominee, and by damaging

his fine reputation, to try to hurt the President and the Administration.

Well, on behalf of all of us, I apologize to Mr. Wehrum, the EPA

Air nominee, in advance, and more importantly to your family. You

have served EPA and the Nation tirelessly for the last 5 years. Air

quality has improved during your tenure and will continue to improve under your watch. I was proud to support the Administration’s Clear Skies proposal to reduce acid rain, smog and mercury

emissions by 70 percent. I was glad to see that EPA went ahead

with it anyway where it could when politics blocked the Senate

from acting.

I will proudly support the nomination of Mr. Wehrum in the committee, and will vote on the floor if we are given a chance to do

so. I hope, however, this latest example of polarized debate here in

Washington and the potential for personal attacks that come with

it, do not deter other fine candidates from serving in the Government.

I thank the Chair.

Senator INHOFE. Thank you, Senator Bond. I must associate myself with your remarks.

Senator Lautenberg.

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, U.S.

SENATOR FROM THE STATE OF NEW JERSEY

Senator LAUTENBERG. Thanks, Mr. Chairman.

I appreciate the fact that we are having a chance to meet with

these candidates this morning and review, as we have as a responsibility to do, their qualifications. I listened to our colleague just a

minute ago, identifying these hearings as torture tests and opportunities to pick on families. Not to do it, not to ask the questions

that come across in our responsibility as U.S. Senators, I think is

a dereliction of duty.

I served my country in uniform and I have done what I had to

to be a good representative of the State of New Jersey and this

country. I feel free to ask questions, and I will unashamedly be

willing to criticize publicly if necessary. I apologize to the families

if they are offended. This is by no means an attack on your representative who is here.
9

We have a job to do. When I think of the work that I have to

do, especially in the area of EPA and environmental controls, I

never forget that I have 10 grandchildren, the oldest of which is

12. I am concerned about the air they breathe, the water they

drink, and the chemicals that invade our everyday living. I am concerned about things like that. No one can take that responsibility

away from me, I will tell you.

So Mr. Chairman, I thank you. I am concerned about these nominees. These hearings present important tasks. We have three candidates and I look forward to the opportunity to hear from them

and to learn more about their views.

The Agency that Mr. Capka—and I commend you for your military service, Mr. Capka—is nominated to head initially indicated

it may withhold New Jersey highway funds from being transmitted. These are funds which this committee approved last summer in the Highway bill. Last year, Mr. Capka got involved personally and soothed our feelings by approving New Jersey’s method of

funding of our State’s share of transportation projects. A few weeks

ago, however, information came out that the Administration was

considering going back on their word and might withhold some of

these funds. But I understand that Mr. Capka is working to clear

up the problem, and I look forward to his affirmation in our question period.

I am pleased that the Federal Highway Administration has

agreed to approve New Jersey’s fiscal year 2006 and 2007 State

transportation plans, and I will closely monitor the Agency’s

progress.

Regarding Mr. Wehrum, his record is different than that which

I would like to see at the EPA in this critical job. I am concerned

about jobs. I am concerned about our economy, but I am also, as

I indicated earlier, concerned about his view on what enters our atmosphere and what we are going to do to control it. As Counsel for

EPA’s Office of Air and Radiation, then as Acting Assistant Administrator, he presided over rulemakings that would delay reductions

in the emissions of mercury, which has already polluted every river

and lake in New Jersey.

According to news stories published this week, Mr. Wehrum’s office drafted a proposal to allow hundreds of industrial facilities to

increase their emissions of toxic chemicals like arsenic, benzine,

cadmium, lead and formaldehyde. A Federal court recently held

that a different set of rules drafted by Mr. Wehrum to relax pollution controls were in violation of the Clean Air Act.

Mr. Chairman, you and other members of this committee know

how strongly I feel about the need to maintain a strong Clean Air

Act. I don’t see the evidence that Mr. Wehrum’s agenda extends

much beyond weakening critical clean air protections.

I also will be interested to hear the testimony today from Mr.

Gulliford, the nominee to head the Office of Prevention, Pesticides

and Toxic Substances. I hope that Mr. Gulliford will be able to articulate and follow through on an aggressive agenda to obtain needed information about the health effects of new chemicals and those

already on the market. I would like an assurance that the mission

of the office would be to truly protect families from toxins, dan-
10

gerous chemicals, my grandchildren and the grandchildren of everyone who has grandchildren living in America.

Thank you.

Senator INHOFE. Thank you, Senator Lautenberg.

Without objection, I will submit for the record right before the

opening remarks of General Capka five letters of support from organizations who are singing your virtues.

Senator DeMint.

OPENING STATEMENT OF HON. JIM DEMINT, U.S. SENATOR

FROM THE STATE OF SOUTH CAROLINA

Senator DEMINT. Thank you, Mr. Chairman.

I want to thank all of our nominees for their willingness to serve.

Just a couple of comments. I will start with the highway system,

Mr. Capka. I am going to introduce a bill today that would begin

a process of turning back some of the functions that the Highway

Administration has taken over from the States. As you know, the

Federal Highway Administration was set up to build an interstate

highway system, which is essentially complete. The mission has

crept to the point where we are effectively micromanaging a lot of

functions at the State level that we cannot do efficiently.

My hope is that you and others at the department will work with

us on evaluating this idea to look at the idea of devolving some of

the functions now at the Federal level to allow States more flexibility to manage their own roads and highways and bike paths. So

we can talk more about that later.

Just a couple of comments about the EPA. I appreciate my colleagues’ concerns for air quality, water quality. We have made a lot

of progress and it is something that I hope we can continue.

But we do need to do it in a rational way. I hear some folks suggesting that perhaps the EPA is too pro-business. My experience is

they have been irrationally anti-business in my part of the country.

The EPA has put our part of the State of South Carolina under a

designation of unclassifiable. We have tried to work with the EPA

for a number of years now.

The real problem here is we are still collecting data. We have yet

to be told what the pollutants are, or have any recourse in how to

fix them, yet the EPA continues to develop new standards, stricter

standards, when we have no idea on how to fix the problem we already have, or whether it is coming from another State.

So I will certainly support the nominees, and I know it is a difficult balance to deal with what we have just heard from some

other folks about being too pro-business, when it looks to me like

we are trying to close business down in this country. Clean air is

an important part of the quality of life, but so is a good job. So the

EPA has a very difficult challenge, and I look forward to working

with both of these nominees, particularly Mr. Wehrum, on how to

develop a better regulatory system that works for health, as well

as our economy.

Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator DeMint.

Senator Boxer.
11

OPENING STATEMENT OF HON. BARBARA BOXER, U.S.

SENATOR FROM THE STATE OF CALIFORNIA

Senator BOXER. Thanks so much, Mr. Chairman.

We have before us nominees for three important positions: highways, pesticides and air. We have limited time to question all of

them, at least I certainly do, and I know you will be devastated to

know that I have a conflict.

Senator INHOFE. Oh.

[Laughter.]

Senator BOXER. I know. I know. I have to go to the Foreign Relations Committee to deal with the India-United States proposed

agreement on nuclear weapons. So I would ask unanimous consent,

first, that my questions and the nominees answers be included in

the record.

Senator INHOFE. Without objection.

Senator BOXER. Mr. Chairman, I want to focus my remarks today

on the nominee who would lead the Office of Air and Radiation,

Mr. Bill Wehrum. I do want to associate myself with Senator Lautenberg’s remarks. Senators are not rubber stamps. We need to be

independent voices fighting for the health and safety of our States.

So in that context, I will make my remarks.

I will not be referring to leaked memos that Senator Bond talked

about. I will address those at a later time, but right now I have

other things to talk about, because the job of ensuring our air is

safe to breathe is crucial to the health of our people, and every

State faces challenges when it comes to air quality. I want to share

with you a few of the reasons I am so concerned about where we

are heading on this issue.

Because Californians breathe some of the most toxic air in the

Nation, according to a recent article, March 22 in the L.A. Times,

California is second in the Nation when it comes to cancer risk

posed by air pollution. Another recent L.A. Times article on March

25 describes new scientific research showing that the number of

deaths from breathing city smog in California may be twice as high

as previously estimated.

The current number of premature deaths due to air pollution-related disease in California is 9,000 annually. We face increased risk

of lung cancer, heart attacks, and other serious illness tied to fine

particulants in the air. A doubling or tripling of premature deaths

represent a lot of unnecessary suffering for the families of my

State.

So I view today is that we are at a crossroads. Do we continue

to erode the gains that we have made in the past on air pollution?

One thing is clear to me, if we continue down the recent path the

public will pay the price. We are not talking about bureaucracy

here. We are talking about life and death.

The nominee to lead the air program at EPA is extremely troubling to me, and I see that Senator Clinton has come in. Senator

Clinton, your State is No. 1 in cancer deaths related to air. My

State is No. 2. So you have people on this committee who view

these nominations through a very different kind of lens, perhaps,

than others.

Mr. Wehrum’s record at EPA has demonstrated to me a pattern

of discounting health impacts and ignoring scientific findings, and
12

substituting industry positions for the clear intent of Congress. I

am going to very quickly in my remaining time go through some

of the highlights of his record.

Let’s start with the mercury rule. Mercury is, among other

things, a potent toxin on the human nervous system. It is especially dangerous to developing fetuses and young children. Common

sense would dictate that every effort be made to limit human exposure to this substance. A look at comments by the former chief of

EPA’s own Air Enforcement Division and the EPA Inspector General on the mercury rule are more than troubling, given Mr.

Wehrum’s position and documented direct involvement in the rule.

Here it is. EPA enforcement chief criticizes EPA for failing to

rely on science in the mercury rule, and says, ‘‘a political agenda

is driving the Agency’s output, rather than analysis of science.’’

Then chart 2 shows ‘‘EPA mercury rule ignores children’s health.

The Agency downplayed or ignored the significant threat of mercury to children’s health, even in the face of persistent evidencebased concerns voiced repeatedly by the leading children’s health

experts in the country.’’

Chart 3, ‘‘EPA Inspector General critical of proposed mercury

rule.’’ I don’t have time to read all of this. ‘‘Evidence indicates EPA

senior management instructed EPA staff to develop a maximum

achievable control technology standard for mercury that would result in national emissions of 34 tons annually, instead of basing the

standard on an unbiased determination of what the top performing

units were achieving in practice.’’

Then, I would say that I mentioned at the outset, fine particles

are one of the most lethal forms of air pollution, causing thousands

of deaths in California, New York and elsewhere.

Mr. Wehrum was running the air program at EPA when the EPA

particle rule came out. Let’s look at what children’s health experts

say about the rule. I am almost done, Mr. Chairman. They say,

‘‘EPA soot and toxic dust standards fail to protect children’s

health.’’

So here we go. We have a nominee here, and I would ask unanimous consent that the rest of my statement be placed in the record.

Senator INHOFE. Without objection.

Senator BOXER. Who is being rewarded? How is he being promoted after he has received criticism from people in his own Agency and from scientific experts and doctors and children’s health experts? I think this is very troubling, Mr. Chairman, and I feel very

strongly about it because, again, this is a position that is directly

related to the lives and the health of my people at home.

Thank you.

Senator INHOFE. Thank you, Senator Boxer.

Senator Murkowski.

OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S.

SENATOR FROM THE STATE OF ALASKA

Senator MURKOWSKI. Thank you, Mr. Chairman.

Welcome and good morning to all of the nominees here this

morning, obviously very important positions, critical positions as

they relate to all of our constituents.
13

Having just gone through a very lengthy and ultimately very

contentious reauthorization of the Highway bill, I think we all

know how important it is to make sure that we have a leader in

place at the Federal Highway Administration who will see to it

that the Agency functions, that it is smooth, that it is responsive.

We look forward to ultimately your leadership there at Federal

Highway Administration, Mr. Capka.

Similarly, the other two nominees that are before us today within EPA, very critical positions in terms of how we do answer to the

air quality concerns of this country. We are all concerned about the

toxics that we are exposed to. We want to be absolutely certain

that whatever we do, we are doing the most that we can to make

sure that the environment is healthy, that the air is clear, that we

do have an environment that we want to live in and we want to

know that our children are safe as well.

We know very well the importance of air quality, of emissions

regulations. These are some very difficult discussions that we have

as they relate to a healthy environment and climate.

Mr. Chairman, I just want to note also, I did find it curious in

terms of the timing, the article just yesterday in the New York

Times and in the Washington Post, as it related to this draft EPA

rule, and recognizing that the draft did not come from the Agency

itself, but the draft came through an environmental group.

I have not read it. I don’t know the contents of it. Obviously, that

will be something of much greater discussion as we move forward.

I will tell you, however, having read that article, I don’t think that

we can dismiss out of hand if it is true that 8 or 9 of the Agency’s

10 regional offices expressed concern about the draft and felt that

they were being kept out of the decision loop. That is something

that we need to be looking to.

But Mr. Chairman, I recognize that we probably all have a fair

number of questions to the nominees this morning, so I will yield

back the balance of my time. I, too, have two other conflicting committee meetings, so the questions for Mr. Wehrum will probably be

submitted through the record, if they may.

[The prepared statement of Senator Murkowski follows:]

STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM THE SATE OF ALASKA

Thank you, Mr. Chairman. I look forward to hearing the comments of the nominees before us today. These are all very important positions and need to be scrutinized carefully, as they affect all Americans every day.

Having just gone through a very lengthy and ultimately very contentious reauthorization of the Highway bill, I think we all know how important it is to ensure

that we have a leader in place at the Federal Highway Administration who will ensure that Agency’s smooth functioning and responsiveness to the issues.

I place similar value on the two positions in EPA we are considering about today.

Throughout the country, Americans are concerned about toxics and want to be absolutely sure we are doing our best to keep their environment healthy. We know very

well the importance of air quality and emissions regulations which are at the center

of some of our most difficult discussions on health, the environment and the climate.

I found it striking that articles that were highly critical of a draft EPA rule appeared yesterday in the New York Times, the Washington Post and Congress Daily,

just when Mr. Wehrum was coming before this committee. Just as interesting was

the fact that the draft rules were apparently not released by the EPA, but by a national environmental group. However, we cannot simply dismiss the issue out of

hand, if it is true that 8 or 9 of the Agency’s 10 regional offices expressed concern

about the draft and felt they were being kept out of the decision loop.
14

I noted comments ranging from an accusation that the rule would allow the release of up to 50,000 pounds more toxic material per year, to a rebuttal saying it

would actually encourage companies to install control systems earlier than they are

required to do under the current law.

My understanding is that current law requires companies to install Maximum

Achievable Control Technology (MACT) [rhymes with ‘‘smacked’’] which can be a

great deal more expensive than more modest alternatives if toxics exceed 10 tons

of any single substance or 25 tons overall. I haven’t seen the proposed rule, but understand it simply allows a company that exceeds this limit to avoid MACT if it can

get back down to the acceptable range. I am very interested in hearing what Mr.

Wehrum may have to say about this, and for that reason, I’m happy to forego the

opportunity to give a speech in order to get us to that point even more quickly.

Senator INHOFE. Thank you, Senator Murkowski.

Senator Baucus.

OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR

FROM THE STATE OF MONTANA

Senator BAUCUS. Thank you, Mr. Chairman.

First, thank you for holding this hearing. These are very important nominees, all are dedicating their lives, virtually, to public

service, certainly during the term in which they serve. I commend

them and I thank them for making that sacrifice. It is difficult for

them personally, as well as for their families. We all thank them

and owe them a deep debt of gratitude. So thank you very much

for scheduling this hearing.

I am going to focus on one in particular, and that is Mr. Capka,

who has been nominated to be Administrator for the Federal Highway Administration. I will begin, Mr. Capka, by noting that my

State, Montana, is a highway State. We are not a seaport State.

We are not a barge State. We don’t have big international airports.

We are a highway State. It is our lifeblood. We have more miles

per capita of Federal highway than any other State in the Nation.

In my State of Montana, I might say that people think nothing

of getting in the car at 4, 5, or 6 o’clock in the evening and driving

maybe 60 or 80 miles for dinner or supper. With apologies and respect to my good friend sitting to my left, like in New Jersey or

New York, which are States that are densely populated, we don’t

want to drive 60 miles through New York or New Jersey. We do

want to drive in those vast spaces of Montana, the mountains, the

skies. It is just beautiful.

We are a highway State. We just love getting into the car and

driving to go someplace. It is also to haul our grain, our products

and so forth. I know you understand that. You told me you have

visited Montana a couple of times, but I just want to reemphasize

that point.

Much of my time, too, in this committee has been devoted to ensuring our highway system. I very much thank the Senators to my

right, the Chairman of the committee, Senator Inhofe, Senator Jeffords, and Senator Bond. We are part of the core center that

worked together to make sure we have a good solid highway program put together, and then working with the House. We are a

good team. We work together. There is compromising. It is not partisan at all. I thank you, Mr. Chairman, for your help very much.

Your chairmanship is one of the main reasons why we have a good

Highway bill. I look forward to working with you in the future.
15

It is also I think important to remind ourselves that we have to

really work to improve our infrastructure generally and the highway system particularly in this new competitive world. Some say

the world is flat. If you come to Montana, it is not entirely flat, but

it certainly is a new economy. It is a new globalization where we

have to put even more emphasis on our infrastructure to make

sure that we can get goods and products to market and back and

forth.

We visit countries overseas, it is incredible the amount of time

and energy they are spending on their infrastructure. I was in

India just a couple of months ago. They just kept crying out, okay,

where are you Americans? We need your help to build our infrastructure in India. The same is true in China, the highways they

are building in China. I was in Chunking, China not too long ago.

It is incredible the highway system they have there in Chunking,

a city of 30 million people. It is a massive highway system, brand

new. It is like interstate standards. It is incredible. So if we are

going to be competitive, we have to maintain that same effort.

I wish you luck, Mr. Capka. It is a tough job. It is a job that is

very, very important. It is critical to the safety and the competitiveness of our country. I look forward to working with you. As we discussed yesterday, I am especially interested, and you know what

it is, it is to make sure that we get the funding for the Going-tothe-Sun Highway through Glacier Park in Montana.

I know Senator Lautenberg knows what I am talking about. I

took him to Glacier Park not too long ago, and he was very impressed. I will never forget some of the words that he used when

he was in Glacier. I won’t say his eyes popped out, but he really

appreciated the Going-to-the-Sun Highway. We want to make sure

that we get that full funding that was provided for in the Highway

bill.

As you know, this Congress said okay, $50 million to renovate

the Going-to-the-Sun Highway, because the highway, as you know,

it was built in the 1930s during the Depression. I think 10 or 12

miles was literally carved out of the mountain through Glacier

Park, but over time it needs repair. This is a national treasure.

People across the country travel the Going-to-the-Sun Highway in

Glacier Park. It is a Montana treasure. It means so much to so

many people. There aren’t that many treasures like that left. It is

certainly therefore important that that treasure be maintained.

So $50 million was provided for it in the Highway bill. We also

wrote the language according to the way that the Federal Highway

Administration asked us to write it, to make sure that $50 million

is actually there. As you know, as we have discussed, lo and behold

now the Administration has changed its mind subsequent to passing the Highway bill, and saying, ‘‘Oh, that language isn’t quite exactly the right words.’’

I am just saying to you that we have to be sure that we get that

full $50 million right now, or frankly we are going to have to spend

some time discussing your nomination. It is just that important,

frankly, to not only Montana, but to the people of this Nation.

Now, it is a large project. It is going to cost probably around $150

million total all together, but we are just asking to make sure that

down payment is available and is there, because we have short con-
16

struction seasons in Montana. The Going-to-the-Sun probably is

not going to open up this year until after the Fourth of July, there

is so much snow, after the Fourth, and that is usually the opening

date, some years earlier, some years later, or about July Fourth.

There is so much snow now in Glacier that we don’t get to open

up the road until that date.

So I just want to emphasize, Mr. Capka, I want to work with

you, but this is something we just have to resolve before we can

proceed. So let me know what you have to do, and I hope that very

soon we can reach an agreement with the Administration that that

money is there so that we can proceed, and then we can go address

all the other issues that this country is facing with respect to our

highway system. There have been lots of times over the years we

will be working together on issues, because they come up with the

highway system, one thing or another. I frankly want to thank

your boss, Secretary Mineta.

We had another problem in Montana. It is called the Bear Tooth

Highway. You I’m sure knew about it. There was a big flood, a catastrophe, a lot of snow, then heavy rain. It just breached the highway in lots of places. It was an emergency to get that put back together again. Secretary Mineta was really good. I want to just

make sure you thank him for his help in making sure we got that

money to repair that highway.

So again, Mr. Capka, I wish you good luck, but we have this little issue we have to straighten out.

Thank you.

Senator INHOFE. Thank you, Senator Baucus.

Senator Thune.

OPENING STATEMENT OF HON. JOHN THUNE, U.S. SENATOR

FROM THE STATE OF SOUTH DAKOTA

Senator THUNE. Thank you, Mr. Chairman.

I appreciate your holding today’s hearing on three nominees that

I believe are well qualified to fill the existing vacancies at Federal

Highway Administration and at the EPA.

I have recently met with Mr. Capka and Mr. Gulliford, and feel

that each nominee brings not only experience, but expertise to the

positions the President has nominated them to. I have reviewed

some of Mr. Wehrum’s material that he has provided to this committee and feel as well that he will do an excellent job as Assistant

Administrator.

I might add that I have worked fairly closely with the Air Office

at EPA concerning renewable fuels issues. I appreciate very much

the importance of having people in those positions who look at the

science, who will take a balanced, common sense, science-based approach to these issues and try to sanitize some of, if we can, emotion out of these issues and look at it based on the facts and look

at it based on the science. That certainly was my experience in

working with the Air Office on an issue of great importance to my

State and to the future of the renewable fuels industry in this

country.

Mr. Chairman, each of today’s nominees is particularly important

in light of this committee’s longstanding involvement in transportation and environmental issues. I strongly believe that each of the
17

existing vacancies should be filled by well qualified individuals.

After all, our job of Agency oversight is particularly difficult when

there is not an individual on the other end of the phone regarding

issues that are important, not only to our respective States, but

also to this committee.

So I appreciate very much the opportunity to have these nominees in front of the committee this morning to be able to respond

to questions from members of the committee. I look very much forward in the future to working with each of these nominees as we

pursue policies that are good for the environment, good for the

economy, good for creating better jobs in this country for Americans. So I very much welcome them here today and thank them for

their service.

I yield back.

Senator INHOFE. Thank you, Senator Thune.

Senator Clinton.

OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON,

U.S. SENATOR FROM THE STATE OF NEW YORK

Senator CLINTON. Thank you very much.

Mr. Chairman, I would ask unanimous consent to submit my entire opening statement for the record.

Senator INHOFE. Without objection.

Senator CLINTON. Mr. Capka, with the strong support of the

Chairman, we created the National Surface Transportation Policy

and Revenue Study Commission. The idea behind that was to study

the future needs of surface transportation, both highways and

intermodal functions, and to determine how we were going to meet

the needs of our country, because clearly, as Senator Baucus pointed out, other countries are moving ahead with their infrastructure

development. We have old infrastructure. We not only need to repair and maintain that, we have new infrastructure we should be

building.

So I would expect before your nomination gets to the floor that

this commission will be underway. It was supposed to be put into

place within 120 days after the bill was passed last August. So far,

it has not been, although I just heard that the White House is

going to make its nominations, but the report is due on July 1,

2007.

So I hope that you and the folks from the White House and from

the department will make it a real priority to get those nominations made, and then secondly to make sure that they have the key

staff from the Federal Highway Administration to do the work that

we expect them to do, and whatever resources are necessary to

carry out its functions.

I will certainly be looking to that as we move forward with your

nomination because there is no reason this should drag on. We are

now months behind the schedule that we should have to get that

commission up and going.

With respect to the concerns expressed by several of my colleagues, in particular Senator Boxer, I just have to underscore the

distress that many of us feel with respect to the constant manipulation of analyses and the failure to consider relevant scientific information, and to ignore the advice of key advisory panels.
18

In February 2005, the EPA Inspector General issued a report

about the Administration’s mercury rule. That report basically,

after going through all of the decisions that were made, concluded

that the nominee before us, Mr. Wehrum, and other EPA officials

simply ignored the Clean Air Act’s requirements and directed EPA

staff to rig the mercury analysis so that reductions would mesh

with the expected co-benefits of the Clean Air interstate rule.

The advisory committee that was supposed to be assisting in developing the mercury rule, requested specific information, requested a meeting. The meeting never happened. According to the

L.A. Times in early 2003, Mr. Wehrum told the dozen or so EPA

staffers that comparative studies would be postponed indefinitely.

In fact, the advisory committee was disbanded. The studies were

never conducted.

Similarly, the EPA ignored the recommendations regarding the

mercury rule made by the EPA Children’s Health Protection Advisory Committee.

Third, in addition to refusing to conduct the analyses requested

by the advisory committee, Congress or others, EPA did not even

consider all of the relevant scientific studies that were available.

When finalizing the mercury rule, EPA ignored an EPA-funded

study conducted by the Harvard Center for Risk Assessment which

showed potentially greater health benefits from reducing mercury.

You know, it is very disheartening, Mr. Chairman, because we

constantly have this problem. Now we get the article in the paper

today that even the internal EPA regional directors are speaking

out because they are so distressed about the direction that the political appointees are taking the Environmental Protection Agency.

I just have to underscore the point made by Senator Boxer.

Every year that goes by, we get more evidence about the adverse

affects of the environment in terms of the toxins that we breathe

or we drink on our development, particularly of our children. Mercury is not safe in any amount for human beings, particularly for

children. As we look at this record that this particular nominee

presents, I just find it very discouraging that we keep being asked

to support nominees who really seem to be so disregarding and

even contemptuous of all of the research that has been done by a

broad cross-section of independent analysts about the air we

breathe.

Finally, Mr. Chairman, when we look at the New Source Review

Act and the court that overturned what the EPA, with Mr.

Wehrum’s leadership, did was striking. This was the U.S. Court of

Appeals including Janice Rogers Brown and the decision was unanimous. Now, you have to go a long way to get everybody unanimously against the government’s position. In fact, the government’s

case rested on a bizarre and unlikely interpretation of the language

and the court was absolutely contemptuous, and in fact said it was

a humpty-dumpty world where Congress would use words that the

Agency would basically ignore.

So I think, Mr. Chairman, that this nominee deserves the closes

of attention. It is absolutely clear that if he expects to have my

support, he is going to have to demonstrate a new attitude toward

policy from everything from mercury to clean air, because he was

at the center of all of these decisions that, in my view, did not re-
19

spect the law, did not consider all the available science, and did not

put a premium on public and human health.

Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator Clinton.

[Referenced letters follow:]
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Senator INHOFE. General Capka, we will recognize you for your

opening statement.

STATEMENT OF RICHARD CAPKA, NOMINATED TO BE

ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION

Mr. CAPKA. Thank you, Mr. Chairman, Senator Jeffords, and

members of the committee.

I have brief introductory remarks and request your permission to

provide a more complete statement for the record.

Senator INHOFE. Without objection.

Mr. CAPKA. I would like to thank Senator Warner for his very

kind introduction. I have been a resident of Virginia off and on for

about 15 years of my 35 years of public life, and have enjoyed every

minute of living in Virginia, even with the congestion.

I appreciate the opportunity to appear before you today as you

consider my nomination to be the Federal Highway Administrator.

I am honored to have earned the confidence of President Bush and

Secretary Mineta for this important position. I know, Mr. Chairman, you and the committee have a very important obligation to

the American people. If confirmed, I pledge to work with this committee and Congress to ensure our Nation is strengthened through

the work done at Federal Highways.

It is an honor to be considered for this opportunity to continue

to serve our great Nation. Most of all, I am honored and proud to

be blessed with the love and support of my wonderful wife Susan

and a family that includes two sons, their wives, three grandchildren and three more on the way. They have been beside me for

a career in public service that includes almost 30 years of proudly

wearing the military uniform and numerous assignments both here

and abroad, commanding some of the finest organizations in the

U.S. Army Corps of Engineers.

Upon retirement, I continued my public service by accepting a

challenging position in Massachusetts managing one of the Nation’s largest and most complex public works projects. There, I

earned the praise of the Department of Transportation Inspector

General, while establishing for the first time a budget with the appropriate controls that has enabled cost forecasts to remain unchanged through today.

I have also served more than 31⁄2 years here in Washington addressing the Nation’s transportation needs as Deputy and now Acting Administrator of Federal Highways. I have focused my energy

on enhancing the stewardship of the Federal-aid Highway Program, providing an effective Federal response to disasters, reducing

highway fatalities, and relieving congestion.

If confirmed, I will look at the prospect to serve with great optimism and enthusiasm. I see opportunities for us to improve the

system that we do have. We will be celebrating the 50th anniversary of the Interstate Highway System on June 29 of this year.

Yet, our Nation continues to face serious challenges.

It is unacceptable that nearly 43,000 Americans are killed on our

roads every year. Congestion is clogging the routes to and from

work and our recreation destinations. It is also clogging the movement of freight, which is so vital to our economy. The quality of our

environment and the vitality of our communities all depend upon
26

the quality of our transportation planning, efficient program delivery, and the effective management of our highways.

Innovation must and will be at the heart of our solutions. How

we capture and invest the Nation’s transportation resources; how

we employ research and technology talent; how well we attract the

right disciplines and the best and the brightest into the transportation profession will determine how successful we will beare for

the next 50 years.

If you confirm my nomination, I will work diligently with this

committee, Congress, and the many transportation stakeholders to

both effectively carry out SAFETEA–LU and to help shape the future of surface transportation.

Again, thank you, Mr. Chairman and members of this committee.

I look forward to answering your questions.

Senator INHOFE. Thank you, General. I appreciate your excellent

opening statement.

First, we have the required questions of you. Are you willing to

appear at the request of any duly constituted committee of Congress as a witness?

Mr. CAPKA. I am, Mr. Chairman.

Senator INHOFE. Do you know of any matters which you may or

may not have thus far disclosed that might place you in any kind

of a conflict of interest if you are confirmed for this position?

Mr. CAPKA. There are no such matters, Mr. Chairman.

Senator INHOFE. Okay. Thank you.

I think Senator Clinton brought up a good point in talking about

this commission, the National Surface Transportation Policy and

Revenue Study Commission. I can recall over the last three reauthorizations that I have been here through that that has been a

discussion, of recognizing that the old way of doing it is not going

to provide adequate resources to take care of what I consider to be

the second-most significant function of government just behind defending our Nation.

This time, because of that, we actually put the commission in

here. I would like to get from you where you are on that right now,

and what your thoughts are, and have you developed any kind of

ideas for a new type of a system for funding, an overhaul of the

old system?

It is my observation, and while I am a conservative, I feel this

is an area where conservatives are big spenders, and that is that

we have infrastructure needs. As large as this bill was that we reauthorized, I think you could give a persuasive argument that the

amount of money that is going to be used will just barely maintain

that which is already there.

So what thoughts do you have so far in terms of this commission

and what they might come up with?

Mr. CAPKA. Thank you, Mr. Chairman.

I do share your concerns and the concerns of the committee over

the importance of the commissions that were established under

SAFETEA–LU. I also share your concerns that resourcing the requirements of the Nation’s surface transportation is also critical to

how well we are able to compete in the world economy in the not

too distant future. We are all going to be depending on an excellent

highway infrastructure, surface transportation infrastructure.
27

Regarding the commission, I can assure you that Secretary Mineta, the White House, and I are all very interested and are watching and moving the nomination process forward for the appointees

that will come out of the White House here in the not too distant

future. We are thinking that we can say by the middle of May,

within 6 weeks that we will be seeing the nominations emerge.

It is vital that we have the right people. As you and the members

of the committee and others have identified your nominees, the

White House is also being very deliberate and careful in conducting

the appropriate background checks to ensure that we have the

right folks there.

Regarding the support that Federal Highways will provide to

these commissions, it is also extremely important that the commissions are readily armed with the information, the data, and the

analysis that will be required to investigate the many alternatives

that will be presented to them as to where the future of surface

transportation will go.

Senator INHOFE. I was going to ask you, the report is due in July

2007, 15 months from now. Do you think that getting the confirmation of these people is going to give you adequate time to do that?

One of the things that we don’t like in this committee both Democrats and Republicans, is when we establish a deadline and then

we don’t meet that deadline. Do you feel committed right now to

reaching your conclusions, giving a report by the deadline of July

2007?

Mr. CAPKA. Sir, we are committed to providing those results by

July 2007.

Senator INHOFE. Okay. General, in your career with the Army

Corps and since you have managed several major projects such as

that that was referred to by Senator Bond, the Big Dig in Boston,

what was your role and what did you achieve in leading that effort? How can you use these experiences to improve FHWA’s

project oversight?

Mr. CAPKA. Yes, sir, I appreciate your question and understand

the importance of you reviewing my credentials for this position.

Certainly, the position that I held in Boston as the Chief Executive

Officer for the Massachusetts Turnpike Authority was a very responsible position.

I was hired in the year 2000 and selected by the Governor, and,

at the time, reported to a board of directors of three members. The

goals that I was given at the time, because of the significant cost

overruns that had seemed to plague the project, and most recently

up to that point unexpectedly, I was given the challenge of getting

my arms around what it was going to take to complete the project

in terms of cost, to develop a budget, and then to focus on the ongoing and future work of the Big Dig project, to get it completed as

efficiently as we could.

Shortly after I got there, I reviewed the project cost history. I

looked at the work and the risks that remained in front, and developed a new estimate, which I presented to the members of the

State legislature, to the Governor’s office, and to my board of directors. The estimate that was developed at that time, and that I released in the summer of 2001, remains true to today. I am very
28

proud of the fact that we were able to nail that and allow the

project to be completed under that estimate.

I also worked on management controls to ensure that we maintained close tabs on costs as cost data came in and requirements

for management intervention popped up. So we had the controls in

place. We had a good budget to work from, and we had the resources to complete it.

In March 2001, after I had put the controls in place and nailed

down the budget, the Department of Transportation Inspector General called for a meeting of the Massachusetts delegation here in

Washington, where he complimented the work that I had accomplished, which I believe he said was improved by more than 1000

percent of what he had seen before, and subsequently called off a

number of the investigations that the IG had underway at the

time. I was very proud to be there with the Massachusetts delegation and the Federal Highway Administrator to receive that report

from the Department of Transportation IG.

It ensured us that the finance plan would be approved, which

again provided the continuing Federal funding for the project,

which was critical at that particular point in time. Lessons were

learned on the project that I could only learn personally by being

part of it. Secretary Mineta and Administrator Peters asked me to

come to Washington to be in a position where I could share those

kinds of lessons with other very large undertakings around the

country. We have been doing that ever since I have been there.

I am proud of the management and I am proud of what I have

been able to achieve. Sir, if confirmed, I will continue to work with

you and make those improvements as we move forward.

Senator INHOFE. Thank you, General Capka.

Senator Jeffords.

Senator JEFFORDS. Mr. Capka, while their estimates differ slightly on the date, both the Congressional Budget Office and the Treasury Department project dire near-term financial straits for the

Highway Trust Fund. Given our current level of investment, the

Treasury Department estimates the fund will be insolvent before

the end of this authorization period.

This problem is not unique to the Federal program. In my home

State of Vermont, State legislators are looking for ways to pay for

needed infrastructure improvements including raising the gas tax.

Does your vision for the future financial health of the Federal aid

program include raising the gas tax, more innovative financing, increased opportunities for public/private partnerships, or some combination of alternatives?

Mr. CAPKA. Senator Jeffords, thank you very much for that observation. In fact, it puts an exclamation point behind the discussion we had about the importance of the committee that is being

formed to look at the future of the Highway Trust Fund.

With respect to the situation with the Trust Fund today, if you

recall, it was our intent to bring the Trust Fund down to zero at

the end of the SAFETEA–LU period. We have done that. The

Treasury has said we may be a little bit below, on the order of $2.3

billion. The Congressional Budget Office has provided estimates

that say we will be a little bit above. So I think the estimate is
29

within the margin of error that tells us that, yes, we are going to

be tangent in the Trust Fund at the end of the period.

There are opportunities for us to adjust as we go forward, and

with the budget 2008 coming up next year, we will have an opportunity to look at it again. We will maintain a close finger on the

pulse of what is happening, and I will assure you that if confirmed,

I will not let the issue out of my sight.

As far as the future, and I think it also puts an exclamation

point behind the fact that perhaps we have relied too much on the

Trust Fund up to this point, we are going to have to look for additional innovative sources of revenue to keep the Nation’s highway

infrastructure in good shape and to improve it where it needs to

improve. Yes, sir, the innovation that I referred to in my remarks

applies specifically to where we look for these additional sources of

revenue to do our work.

If confirmed, I will continue to seek those innovative solutions for

you.

Senator JEFFORDS. Thank you.

In the recently passed Transportation bill, Congress granted

States more flexibility in the types of stormwater mitigation

projects eligible for Federal aid funds and accounts used to pay for

these projects. Based on your experience with the corps, can you

comment on how the Federal aid highways might impact water

quality in surrounding water bodies, and why you believe it is important to address these water quality impacts on both new construction and older existing highways?

Mr. CAPKA. Thank you, sir, for that question.

As we all know, projects and our highway system, just by virtue

of the fact of where it goes and why it needs to go to the various

places that it serves, it does and will have an impact on the environment. The impacts are many. Stormwater impacts are one of

those, and very certainly we need to evaluate the impacts and address them so that the economy is enhanced and not harmed.

If confirmed, I will continue to work with you and the members

of this committee to identify those problems and to determine the

best way of investing our resources.

Senator JEFFORDS. Thank you very much for that answer, sir.

Senator INHOFE. Senator Lautenberg?

Senator LAUTENBERG. Yes, thank you, Mr. Chairman.

Mr. Capka, as I indicated in my opening remarks, I am very

much concerned about the commitment to New Jersey on the

multi-year funding. Generally speaking, does the Administration

believe that multi-year funding is an appropriate financing mechanism or doesn’t it?

Mr. CAPKA. Thank you, Senator Lautenberg.

As you had pointed out in your opening remarks, we had a very

productive session with the commissioner of the New Jersey Department of Transportation and his staff and our staff at Federal

Highways yesterday. We readily recognize that we need to maintain open communications to ensure that both we at the Federal

Highway level and at the State Department of Transportation level

are working together to ensure the proper stewardship of the resources that are entrusted to us, and to meet the needs of the citizens of New Jersey.
30

So we are moving in that direction.

Senator LAUTENBERG. Can we be more specific, Mr. Capka, and

say that you worked out an arrangement with New Jersey Transportation Commissioner Lettiere last year regarding the use of

multi-year funding, and I just want to be sure that if the money

is committed for the first 2 years—2006 and 2007—and reasonably

available in later years, would you as head of the FHWA continue

to approve New Jersey’s State transportation plan, which incorporates these multi-year funding projects, similar to Pennsylvania,

by the way?

Mr. CAPKA. Sir, we have not backed away from the commitment

that we made to New Jersey this past fall when we were working

through some very challenging financial situations in the State of

New Jersey. We have not backed away from that and will hold true

to our commitment.

We will look to the outputs of the plans that are submitted by

New Jersey and work with New Jersey to ensure that they meet

the requirements of the legislation, our authorizing legislation, and

Title 23.

Senator LAUTENBERG. They have taken pains to do that. You

know, we have a new Governor who used to serve here. He is

aware of the fact that we have got to keep our transportation funds

available and plan to do that.

I wanted to ask you this question. The job you undertook up in

Massachusetts, you were the CEO of the corporation that was running that job, the Massachusetts Turnpike Authority.

Mr. CAPKA. That is correct, sir.

Senator LAUTENBERG. You were in charge. Now, that job, complicated I will admit, but I think in its final analysis came out to

be a pretty significant addition to the functioning of Boston in that

area. However, there was a significant overrun there. I think it

was about $500 million-plus during your service as the CEO there.

How did that come about, Mr. Capka?

Mr. CAPKA. Sir, when I arrived in Boston in December of 2001,

January of 2001, the estimate for the project was at $14.075 billion. I immediately undertook a review of the cost history, a review

of the project status and the risks that were ahead, and revised the

estimate at that time to $14.475 billion.

That was based upon my assessment right after I arrived in

Massachusetts. That particular estimate has held true to today.

There has been an adjustment that was requested from the Inspector General as an accounting adjustment, but was not a requirement for additional resources or wasn’t any additional cost. It was

merely an accounting adjustment that brought it up to what you

will see today, $14.625 billion. That is correct. Yes, sir.

Senator LAUTENBERG. Yes. So was it an uncontrollable expansion

of costs?

Mr. CAPKA. Sir, in my review of the cost, it was the situation

that existed when I arrived in Massachusetts and reflected what

had brought the project to where it was at that point in time, and

what I estimated it would take to complete the project. So it was

a point in time that I adjusted finally the estimate for that job.

Senator LAUTENBERG. If I may digress for a moment, Mr. Chairman, I am sorry that our friend isn’t here from Montana, Senator
31

Baucus, because he talked about Glacier National Park, which was

a beautiful sight when I went there. But the bad news is that one

of the biggest glaciers in that park has lost 90 percent of its mass,

and park scientists predict that if global warming trends continue,

the Grinnell Glacier in the park will be gone by 2032.

In 1850, there were 150 glaciers in the park. Now there are 27.

This has nothing to do with General Capka, but it was an observation that I wanted to note as we talked to some of the other candidates here, that the glaciers are rapidly disappearing. One can

debate all they want, but the result of global warming is definitely

there and we ought to be looking at ways to control the car emissions that we have in our society.

Mr. Capka, I am sorry to run over a minute.

Senator INHOFE. Two minutes.

Senator LAUTENBERG. Two minutes over?

There is such a kind, generous Chairman in this committee.

[Laughter.]

Senator LAUTENBERG. I am overcome with emotion.

So Mr. Capka, you have had a lot of experience. You have served

your country well. I am relying on you, based on your affirmation

just now, that we won’t run into any problems with our funding.

That is an agreement that you have established, and I heard your

qualifying it, but we hope that there will be no problems. Our highway system is just as important to New Jersey as it is in Montana

or any of the other States. As a matter of fact, we spend more time,

Mr. Chairman, in our cars going places than they do in Montana.

Sometimes it takes us a couple of hours to go five miles, so we are

in that car, we love it, and we want the highway to be in good

shape to support it.

Thank you very much.

Senator INHOFE. Thank you, Senator Lautenberg.

I wouldn’t want my silence to in any way infer that I agree with

the good Senator from New Jersey. When in fact the glaciers you

are referring to, whether you are talking about those glaciers or

the Arctic or the Antarctic or Greenland, the science quite frankly

does not come to the same conclusion that you do. While sometimes

there is a receding around the edges such as Greenland, it is actually thickening in the middle. In terms of Antarctica, the trend is

it has been much colder than warmer in the last 40 years.

General we appreciate your responding to our questions. I would

ask Senator Voinovich if he has any questions for you.

Senator VOINOVICH. All I would like to say is that I really enjoyed visiting with you yesterday, and I am pleased that someone

of your capability and background is willing to take on this new

role. It is very, very important to the future of our country.

Mr. CAPKA. Thank you, Senator Voinovich. I really appreciate

that. I also enjoyed you sharing your time with me yesterday afternoon.

Senator INHOFE. I agree with Senator Voinovich.

We will excuse you at this time. Thank you very much for your

appearance.

We ask our second panel to come forward. Our second panel is

James Gulliford, nominated to be Assistant Administrator of EPA,
32

and William Wehrum, nominated to be Assistant Administrator of

EPA.

Let me first of all get the required questions out of the way. If

you would please respond, each one of you, to these two questions.

Are you willing to appear at the request of any duly constituted

committee of the Congress as a witness?

Mr. GULLIFORD. Yes, I am.

Mr. WEHRUM. Yes, Senator.

Senator INHOFE. Do you know of any matters which you may or

may not have thus far disclosed that might place you in any conflict of interest if you are confirmed to this position?

Mr. GULLIFORD. Mr. Chairman, there are no such matters.

Mr. WEHRUM. No, Mr. Chairman.

Senator INHOFE. All right. I would like to ask each of you prior

to your opening statement if you have any members of your family

here. Please feel free to introduce them, and we will begin with

you, Mr. Gulliford.

Mr. GULLIFORD. Mr. Chairman, I do have two members of my

family, my wife Von is with me, and my daughter Keri.

Senator INHOFE. Where are they? All right. Which one is your

daughter?

[Laughter.]

Mr. GULLIFORD. The taller one.

Senator INHOFE. I see. All right. You are recognized for your

opening statement.

STATEMENT OF JAMES B. GULLIFORD, NOMINATED TO BE AN

ASSISTANT ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. GULLIFORD. Thank you, Mr. Chairman, Senator Jeffords,

members of the committee.

I am honored to appear before you today and I am seeking your

confirmation to serve as Assistant Administrator for the Office of

Prevention, Pesticides and Toxic Substances. It has been my pleasure to serve as EPA Region VII Administrator for the past 41⁄2

years, and it is truly an honor to have the support of President

Bush and Administrator Johnson to serve the American people in

this new capacity.

I also want to thank Senator Bond for his kind introduction. It

has truly been a pleasure to transfer fairly deep roots from the

State of Iowa to the State of Missouri and I enjoy living there now.

The environmental challenges we face today are complex. They

demand a focused and unyielding commitment to fully understand

the issues, to seek solutions and to facilitate change. I believe that

working together with Congress, the States, the regulated community and the public interest community, that we can accelerate our

environmental progress, foster a strong and vibrant economy, and

assure that our citizens enjoy a safe and healthy environment in

which to live, work and play.

I am dedicated to that belief, and the knowledge and the experience that have brought me here today will serve me and the environment well. I bring a strong and abiding respect for America’s

natural resources. I majored in forestry management at Iowa State

University. In addition to a forestry traditional curriculum, I
33

minored in agronomy, recognizing the importance of soil science, of

nutrient management and soil conservation.

My MS in forestry economics and marketing added additional

tools to help solve complex environmental and natural resource

management problems.

Before coming to EPA, I worked for 25 years in the fields of mine

reclamation, soil conservation and water quality protection. I understand well the complexities of natural resource management. I

also bring a healthy appreciation for the work of OPPTS, and office

that is at the forefront of protecting public health and the environment.

Growing up west of Chicago, my anticipation each summer was

for several weekend camping trips and one major family vacation

visiting any number of our Nation’s national parks. Hiking, camping and seeing the incredible beauty of our country sparked my interest and my career in natural resource management and environmental protection. My wife Von and I chose to pass those same experiences, the love of the land, on to our children as well. With my

son Jason, I backpacked the Sierras, I canoed the Boundary Waters, and I have hiked the Grand Canyon.

If I am confirmed for this position, I know that I will be stepping

up to the plate on a number of strategically important environmental issues, issues that are important to many members of this

committee. These include pesticide registrations, the challenges of

lead, and endangered species, just to name a few.

I can say unequivocally that I will approach each of them with

an open mind, a commitment to fully understand and appreciate all

sides of an issue, and most importantly, with the paramount objective of protecting public health and the environment.

I will use the best and most appropriate tools to get the job done.

If a regulatory approach makes sense, that is what I will choose.

If I can get the job done quicker and more efficiently by advocating

a stewardship or partnership approach, then I will proceed down

that path. If a combination of tools makes the most sense, I will

move in that direction.

I believe that this job requires flexibility, creativity, common

sense and I believe that I bring those skills to the job.

Finally, I want to close by acknowledging the importance that my

family’s love and support means to me in this work. I am blessed

that my family, my parents, continue to live healthy productive

lives back home in Illinois, and the values and training that they

have given me over the years continue to be central to my being.

My daughter Keri is a constant example of strength, character

and determination as a nurse in a neurosurgeon’s office and as a

part-time student, finishing her bachelor’s degree. My son Jason is

one of the finest, caring young men I know and a great outdoor adventure partner. He and his wife Heidi are beginning their life together and constantly remind me why the work that we do today

to assure a safe, healthy future of our planet is important to young

people that are just beginning their lives together.

Finally, the love, the strength and partnership of my wife Von

inspires and sustains me. With this support, I am confident that

if confirmed as Assistant Administrator, my service will reflect
34

positively on my family and the needs of all families who rely on

OPPTS and EPA for a safe, healthy environment.

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

happy to answer your questions.

Senator INHOFE. Thank you, Mr. Gulliford.

Mr. Wehrum, start with your family. Do you have any family

here today?

Mr. WEHRUM. Yes, I do, Mr. Chairman, and thank you for that.

First, I will note my wife unfortunately was not able to be with me

today. She had a higher calling, but I know she is watching over

the webcast, and I certainly appreciate her support and patience

over the past few years and hopefully for another couple.

I am joined by my mother, Mary Ann; my two twin sisters, Lisa

and Laura; my brother-in-law Van; and I think most importantly,

two nieces, Katy and Sarah from Bowling Green, KY; and two

nephews, Matthew and Coleman from Nashville.

Senator INHOFE. I want each one of you to hold your hand up

anyway, so we can figure it out. All right. Thank you for being here

today.

Mr. WEHRUM. I appreciate their support.

STATEMENT OF WILLIAM L. WEHRUM, NOMINATED TO BE AN

ASSISTANT ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. WEHRUM. Mr. Chairman, Senator Jeffords, members of the

committee, thank you for the opportunity to testify before you

today as the nominee for the position of Assistant Administrator of

Air and Radiation at the U.S. Environmental Protection Agency. I

am grateful to President Bush for nominating me for this position

and I appreciate your consideration.

President Bush has provided consistent and clear expectations to

Administrator Johnson at EPA to accelerate the pace of environmental progress, while maintaining our Nation’s economic competitiveness. We have taken this task to heart in my time at EPA and

I am proud of what we have accomplished.

The air is cleaner today than it has been in generations. EPA

programs have resulted in a substantial reduction in air pollution

and correspondingly dramatic improvements in air quality. Much of

this progress is attributable to the good work of those who came

before us over the past 35 years of EPA’s history, but under the

leadership of President Bush, and due to the hard work of my predecessor and EPA career staff, we have made significant progress

during my tenure.

Perhaps highest on our list of accomplishments is the Clean Air

Interstate Rule. This standard will reduce emissions from powerplants by millions of tons, help solve some of the toughest and most

persistent air quality problems in the Nation, and deliver the largest health benefits of any EPA rule in more than a decade.

Other notable rules include the Clean Air Mercury Rule, the

Clean Air Visibility Rule, and the Non-Road Diesel Engine Rule.

These rules will assure continued significant progress toward

cleaning our air. If confirmed, I promise to build on these successes.
35

Mr. Chairman, I am appreciative of this committee’s efforts to

pass Clear Skies legislation. Similar to the President and Administrator Johnson, I believe enactment of legislation to reduce and cap

emissions of sulfur dioxide, nitrogen oxides and mercury from powerplants is a priority, and I intend to work to that end.

Other near-term priorities will include the renewable fuel standard, a standard for locomotive and marine engines, and the review

of the particulate matter, ozone and led national ambient air quality standards.

My priorities also include the continued growth of our many successful voluntary and public/private partnership programs. Perhaps

the best example is the Energy Star Program. Last year alone,

Americans with the help of Energy Star prevented the release of

334 million metric tons of greenhouse gas emissions, equivalent to

the emissions from 23 million vehicles and saved about $12 billion

on their utility bills.

These programs are particularly noteworthy because they accomplished significant improvements in human health and the environment, but do so in a collaborative way, rather than through our

usual regulatory approach.

All of these efforts will be guided by the goal of protecting human

health and the environment, but doing so in the smartest and most

efficient way possible.

I believe that I am well qualified for this position. I started my

career as a chemical engineer, and most of my time was spent in

a specialty chemical plant. I had responsibility for implementing a

multitude of health, safety and environmental rules that applied to

our operations. I became acutely aware of the value of clear and

concise rules, which are particularly important to the operators, engineers and maintenance crews directly responsible for actions

needed for day-to-day compliance.

I also experienced first-hand the frustration and challenge of decoding complicated rules that sometimes seem to be written without apparent understanding of the real consequences for those who

are required to implement them in the field. This work inspired me

to pursue a law degree which I obtained by attending classes at

night, while still working in the plant during the day. I was fortunate to have the opportunity after graduation to come to Washington to work with two top-flight law firms. I learned not only the

business of law, but also the complex legal and policy questions

that drive the regulatory process.

I worked extensively with EPA and came to appreciate the dedication and energy that motivates EPA employees and moves our

Nation toward continuing environmental progress.

I was given the opportunity to join EPA in 2001. I came on-board

as Counsel to the AA for Air. In that capacity, I had the privilege

of advancing some of the greatest environmental issues of our day.

I consider it a rare privilege to now have the opportunity to serve

as Assistant Administrator.

I will close by saying that I have an added interest in clean air

both by vocation and avocation. Running is one of the few pastimes

I have that has survived the last few years of engineering, law

school, law practice and government service. I run well over 1,000
36

miles in a typical year, and most of this within inches of major

roadways here in the DC area.

I can tell you this experience has indelibly impressed upon me

the need for and value of clean air. The occasional smoking truck

or bus and the occasional smoking stack are stark reminders to me

of the progress we have made and the challenges that remain.

Mr. Chairman and members of the committee, I thank you again

for the opportunity to be here, and I am happy to answer any questions that you may have.

Senator INHOFE. Thank you very much, Mr. Wehrum.

I will go ahead and start. We will only have one round of questions because of our timing.

Mr. Gulliford, last year, the Administration published a rule reiterating years of Federal policy that pesticide sprays did not have

to have NPDES permits for pesticide sprays if they did it in accordance with FIFRA, the approved labels. As you know, I have introduced legislation to codify the policy with some important modifications in statute.

If I had all the faith in the world that we would have a permanent rule on this, it might not be necessary. I would just ask you,

do you know what the status of this rule is and whether or not you

support its finalization?

Mr. GULLIFORD. Yes, Mr. Chairman. The Agency did establish a

position that pesticides applied in accordance with the FIFRA recommendations on, near or adjacent to waters need not have

NPDES permits. That is the Agency’s position. The rule has been

proposed. I don’t know the exact timetable for completion of that

rule, but I would be happy to get back to the committee with that.

Senator INHOFE. For the record, if you could do that, I would appreciate it.

Mr. GULLIFORD. I will do that.

Senator INHOFE. Mr. Wehrum, there have been assertions made

by Senators Lautenberg and Boxer in their opening statements

that the EPA management instructed staff to develop a maximum

achievable control technology, the MACT standard for mercury that

would result in the emission of 34 tons annually. It is my feeling

that the EPA developed this rule, no commercially demonstrated

mercury technology was in use at any coal-fired powerplants across

the country, but the MACT rule must be based on actual emissions

reductions already achieved at the best plants. So clearly, the EPA

had to base its rule on the level of reductions achieved as a co-benefit of the controls installed to reduce sulfur dioxide and nitrogen

oxide within each subcategory evaluated.

I would ask you, how did you determine the emissions for the

purpose of the mercury MACT? Was this something that was dictated prior to the study taking place?

Mr. WEHRUM. Thank you, Mr. Chairman, for your question.

I will start by saying, as I indicated in my remarks, the Clean

Air Mercury Rule as we came to call the final regulation, we hold

that as one of the most significant accomplishments of this EPA,

our office, and this Administration as it relates to clean air. It is

the first-ever regulation in the world to regulate mercury emissions

from coal-fired powerplants, and we are quite proud of the progress

that we have made, and we are quite proud of the reductions that
37

will be achieved through that regulation. It was a substantial undertaking. The issues were quite complex and we feel like we did

a very good job on that rule.

As you alluded to in your question and in response to your particular question, Mr. Chairman, it was very important to us that

the proposed MACT standard be based on a thorough analysis of

what we believe could in fact be accomplished by the better-performing sources in the category, as the law requires. That was the

law. That is what we attempted to do in structuring the proposed

rule, and I believe we accomplished that.

Senator INHOFE. Thank you.

I know you addressed this, but I would like to get down to the

specifics of the assertion that was made by two individuals up here

in opening remarks that the EPA prematurely disbanded the Mercury Federal Advisory Committee Act, FACA, and did not provide

all cost-benefit modeling information promised to the group.

One of my staff members was 1 of the some 50 people that participated in FACA. It is my understanding that FACA met for almost 2 years and had more than a dozen meetings and many dozens of sub-group meetings. Few clean air advisory groups have ever

met so frequently or produced so much work for EPA to consider.

I would challenge some of those who don’t agree with that to show

me where there has been one that has exceeded the scrutiny that

this has.

It is my understanding also that the Inspector General failed to

report that most members of the FACA process believe that the

issue was discussed thoroughly and it was not until after the conclusion that a minority of members wanted to reopen the process.

That was Nikki Tinsley, a Clinton appointment. It is my understanding that she did not interview all the members of FACA, but

only those individuals who were on that letter, some 15 out of the

50. That is my understanding, that they met for more than a dozen

day-long meetings, and had many sub-group meetings and so forth.

I would ask you, did the Inspector General interview every member of FACA? If not, could that oversight have influenced the findings of the report?

Mr. WEHRUM. Mr. Chairman, let me start again by saying we are

indebted to the work of the FACA. That group did in fact meet over

an extended period of time. They were given an important task,

which was to help us understand the nature of the mercury emissions problem from domestic coal-fired powerplants.

As I mentioned a moment ago, the issues are complex. The information is voluminous and complicated, and they were very, very

helpful to us in understanding what the issues are and ultimately

in issuing a report at the end of their work which made a series

of recommendations. The group was not able to reach a recommendation supported by every member of the committee, so the

report reflected a variety of positions that were supported variously

by sub-groups within the total FACA.

Senator INHOFE. But part of the question I asked you is whether

or not the Inspector General did interview all members of FACA.

Mr. WEHRUM. Not to my knowledge, Mr. Chairman.

Senator INHOFE. All right.

Senator Jeffords.
38

Senator JEFFORDS. Bill, the Clean Air Scientific Advisory Committee has now indicated twice that the annual standard for particulate matter should be lower. EPA in its proposed rules declined

to accept that advice. Is there a scientific or public health reason

for disregarding the Advisory Committee’s advice?

Mr. WEHRUM. Thank you for your question on that important

topic, Senator Jeffords. I often tell people there is not a single more

important issue that we will deal with in the next couple of years

at EPA, in the Air Program at least, than the review of the particulate matter ambient air quality standards. It is an enormously important review and one that we take very, very seriously.

What I can tell you, and what I am sure you know, Senator, is

that while a tremendous amount of work has been done already to

get us to where we are in the review process, and that includes

substantial effort invested in compiling science and understanding

the nature of the science, and developing policy recommendations

for consideration by myself and Administrator Johnson, we are still

only at the proposed rule stage. The comment period is still open,

as a matter of fact.

So the proposal includes, and we thought it was very important

that it include a particular proposed level for each of the various

PM standards that we tentatively believed was correct, and that

the Administrator tentatively believed was correct as of the time of

the proposal, based on our understanding of the science and the

relevant policy issues.

We also felt it was very, very important in this proposal, Senator,

to reflect the fact that there is a diversity of opinion among very

knowledgeable and informed people on what the right standard

should be and how they should be supported and how we should

interpret and apply the science.

So our proposal includes a range of other alternative outcomes

that we know various folks support. We did that so that we could

solicit good, solid public information and additional data and public

comment, and have the benefit of that later this year when we

have to bring it together and consider that information and make

a final decision.

So Senator, we have enormous respect for CASAC. They play a

very, very important role in the NAAQS review process. We take

their advice very, very seriously, but the short answer to your

question is, at least with respect to the proposed primary approach

in the regulation, it differed from the CASAC recommendations in

some respects. That is exactly right, Senator.

Senator JEFFORDS. As reported in yesterday’s New York Times,

the EPA is developing a proposal to amend the rules relating to

toxic air pollution. A memo from the EPA regions raises numerous

questions about the legality and wisdom of this approach. I am

going to assume that you were aware of this proposal prior to yesterday, unless you tell me differently now.

Mr. WEHRUM. I was aware of it, Senator, yes.

Senator JEFFORDS. With regard to this proposal, will it require

additional reductions in toxic air pollutants beyond current rules?

Or will it allow additional emissions of toxic air pollutants when

compared to current rules?
39

Mr. WEHRUM. Senator, again you have asked a highly relevant

question, particularly in light of the articles that were published

yesterday about this draft proposed regulation. This is a draft proposal that has been underway for some time within our office. In

fact, work to my recollection began almost 2 years ago when we

first began talking about the possibility of conducting a rulemaking

to establish within our rules itself a method for addressing this

particular issue.

The Agency has spoken to the question in the past and in an interpretive memoranda issued by our predecessors a number of

years ago now, took a position that many people support and many

people believe is not the correct position to take on this particular

issue.

So it is my belief that it is important for an issue of this nature

to be codified in our rules. We should not rely on interpretive guidance documents for important interpretations like this. Part of the

value of that is that people can pick up the rule book and know

what they have to do, and not have to rely on guidance memoranda

that exist in other places and that are sometimes difficult to find.

But also, it is important to go through the public comment process and the notice and comment rulemaking process because that

lets everybody with an interest in these issues to offer us their

thoughts and we have the benefit of those thoughts as we take

final action. So we have not even yet proposed this regulation, Senator.

When we propose, and I hope we propose the regulation sometime soon, we look forward to receiving the public comments so

that we understand the diversity of views, we understand better

the kind of concerns that were expressed in these newspaper articles, and have the benefit of that as we decide what kind of final

action to take.

Senator JEFFORDS. Again, I understand there may be more recent documents related to this proposal than were discussed in yesterday’s articles. Will you provide those documents to the committee as part of your nomination process?

Mr. WEHRUM. Senator, I would be happy to work with you and

to work with your staff in identifying relevant documents and talking about what we may be able to provide you.

Senator JEFFORDS. I appreciate that response very much. Thank

you.

Mr. WEHRUM. Thank you, Senator.

Senator INHOFE. Thank you, Senator Jeffords.

Senator Voinovich.

I quite often say when I am turning it over to Senator Voinovich,

he is probably the most knowledgeable person on this committee on

air issues. He headed that committee when he was Governor of

Ohio, and actually testified before this committee in that capacity.

Senator Voinovich.

Senator VOINOVICH. Thank you, Mr. Chairman.

First of all, Mr. Wehrum, I want to thank you very much for

sticking with this Agency and not tipping your hat and leaving it.

You have been there since 2001. You would like to be appointed to

head up the Air Office. You and I have talked, and in all probability you are going to take a lot of flak from some of the members
40

of this committee, and they are going to probably stop you from

getting it, and the President will probably have to give you a recess

appointment.

But I want your family to know how much I really dearly appreciate the sacrifice that this young man has made for our country.

I want you to know that. If you read about stuff in the paper about

this and that, let me tell you, this is a good man. I worked with

him on Clear Skies and he put in hour after hour after hour, an

honorable man.

The record of that Agency may be controversial, but the fact of

the matter is in terms of our mercury rule, we are the first Nation

in the world to have a rule dealing with mercury. It is a reasonable

rule, even though some of the members of this committee may not

agree with it.

I am also Chairman of the Clean Air, Climate Change and Nuclear Safety Subcommittee. Even though the Chairman and I have

a little difference of opinion about the issue of climate change, we

have a situation in this committee where one of the members

thinks it is the worst problem facing the world, and the Chairman

has said on a couple of occasions that it is a hoax.

But the fact of the matter is, that this Administration has done

more to deal with climate change than any government in the

world. The money that we have spent dealing on technology and

so forth to deal with climate change shows that we are doing something. We provide more money to the United Nations probably

more money for climate change than all of the rest of the members

of the United Nations.

So I think that it is a record that you ought to be proud of. It

doesn’t mean that there isn’t room for improvement.

Now to the issues that I have. No. 1, is I think that the Agency

has got to do more about getting the word out about what you indeed are doing. I know that is public relations, but I think it needs

to be put forward. I would like you to answer the question as to

what you can do to try and clarify more to the public what you are

actually doing, and your sincerity about cleaning up our environment and air and the world’s air.

The second issue is the one that Senator Inhofe and I have been

working on for a long time, and that is to somehow harmonize our

environment, our energy and our economy. I am very, very worried

about where we are going in regard to that issue because today if

you look at the testimony that I read before the Foreign Relations

Committee, and by the way, that is where I was. We are talking

about a new relationship with India dealing with nuclear power.

This country is more reliant today than ever before on foreign oil.

The demand for oil is up dramatically, actually a 40 percent increase because of China. The sources of it are less reliable than

ever before.

We are really in a very, very vulnerable position. In the area of

natural gas, we have the same thing. We have seen industries close

down, move to other places like the fertilizer industry. In other

words, what has happened here is that for some reason this Nation, I think it is myopic, hasn’t recognized that somehow we have

to get to the table and work together for our economy and for our

national security.
41

I would like to find out from you, what are you going to do in

the 21⁄2 years you are going to have, to try and get these folks to

the table to start to put each other’s shoes on and realize that if

we don’t start working together, God help this country. A Stanford

report said that in the next 10 years, there is an 80 percent chance

of a crisis in the area of oil that could bring us to our knees.

It is a very serious issue today, and we are dealing with these

problems, in due respect to Senator Jeffords, like we used to deal

with them, Jim, 10 years ago or 15 years ago. But the world has

changed. What are you going to do about it?

Mr. WEHRUM. Senator Voinovich, first I want to thank you for

your kind words. I appreciate your support. I think we have done

a lot of good work so far and I look forward to continuing that

trend over the next couple of years.

In response to your first question about public relations and trying to get the message out, that is a very important issue for us.

I will be honest and say something that frustrates me, but also energizes me about these issues is that on the one hand people care

and they care passionately about environmental issues, and that

animates the public debate, and that is part of why I like to do

what we do here, because these issues matter to people.

On the other hand, what frustrates me is much of the public debate to my mind is misinformed. People don’t understand all the

facts. They are relying on limited information and limited voices

and limited perspectives. So I think that one of the most important

things we can do at EPA is just get full information out there,

make sure that people understand the issues, and have the information that is necessary to evaluate those issues, and then the

chips fall where they do.

There will always be divided minds on the issues we deal with,

but that is part of what makes this country strong and this country

great, because we can have these debates. We can feel very passionately, and at the end of the day we pick a path and we go, and

we make real progress.

With regard to energy security and just striking a balance, I believe that is enormously important. I think our record to date reflects the efforts that we have made in that regard. The Clean Air

Interstate Rule is a great case, a great example of that where public health demands significant reductions in emissions from SO2

and NOx and mercury from powerplants. But the public health and

the good of society demands that we have a reliable power supply

and an affordable power supply to drive the economy, to drive businesses, and to allow people to lead lives with the quality that they

do right now.

So we worked very hard and care to establish appropriate limits,

to make sure we protect human health and the environment, but

to do it in the smartest way we possibly could and still get those

results. We are very proud of those results, Senator.

Senator VOINOVICH. My time is up.

Senator INHOFE. Thank you, Senator Voinovich. Let me make

sure that we are accurate in quoting what I have said about global

warming.

[Laughter.]
42

Senator INHOFE. I didn’t say it was a hoax. I said it was perhaps

the greatest hoax ever perpetrated on the American people.

[Laughter.]

Senator INHOFE. I might also add in 1977 I used those same

words for the same individuals who are now predicting that the

world is coming to an end. Back then it was coming to an end because of an ice age that was coming. I said at that time that it was

a great hoax.

Senator Lautenberg.

Senator LAUTENBERG. I am overpowered by your comments, Mr.

Chairman.

[Laughter.]

Senator LAUTENBERG. Thanks very much. Despite our somewhat

obvious differences in view, there is good friendship and good respect for each other, while I am sorry that the Chairman and some

of the others don’t see how right I am in my views.

[Laughter.]

Senator LAUTENBERG. Mr. Wehrum, was there a change in the

targets for reductions of mercury that was recently put into place

where it was expected or believed at one time that it was going to

be a 90 percent reduction in 3 years, and now we are talking about

a 70 percent reduction by 2018? What occasioned that change of

view, can you tell me?

Mr. WEHRUM. Senator, when we proposed our clean air mercury

rule, as we came to call it, we love our acronyms at EPA as you

know, a CAMR rule. It included two distinctly different mechanisms of regulation. On the one hand, we proposed to regulate mercury emissions from powerplants using the authority of section 112

of the Clean Air Act. I was cautioned against charging out into the

weeds, and I will try not to do that, but section 112 is the part of

the Act that tells us to establish toxic air emission standards for

various sources of pollution.

The second and the alternative proposal was to regulate under

section 111, which is the authority we use to set new source performance standards.

Senator LAUTENBERG. Can we clarify and get to the specific targets, as opposed to quotes from the various sections? How we get

there is my concern, how quickly we get there is my concern. So

are these similar measurements? Are the reductions definable reductions? Are we talking about something that is measurable,

something that is clear in its intent?

Mr. WEHRUM. Senator, I guess I would say this. Regardless of

the mechanism used to regulate mercury emissions from powerplants, the actual way in which the mercury would be reduced is

the same. We had to undertake a very complicated inquiry in preparing both of those proposed regulations as to how we thought

mercury emissions could be reduced from powerplants in the relative near future, because that is most important for the toxics rule

if we had chosen to do that. As you say, it would have required

compliance by existing sources within 3 or 4 years.

So we would have had to identify emissions controls that could

be employed now, or close to now, for those powerplants, versus

controls that might be available over a longer period of time because we believed and we ultimately promulgated a regulation
43

based on the idea that we can regulate in phases over time, which

is what we have tried to do in part to accommodate advances in

technology and to allow those advances to be rolled out through the

industry and used to meet later compliance obligations.

So it is a complex area and we had to undertake a very intensive

analysis, and that analysis is what caused us to propose what we

did on the toxic side and to propose what we did on the mercury.

Senator LAUTENBERG. Forgive the interruption, but I would ask

that you submit something in writing to my office and to the committee in terms of how the variation developed, because it is a little

complicated. I am very much results-oriented.

Would the report that came out in the newspaper, the now-infamous report as I hear it described here, there was considerable disagreement by the 7 of your 10 regional colleagues. Do you think

that 70 percent of your field officers were wrong when they were

critical of the attempt to lift the emissions controls on toxic chemicals?

Mr. WEHRUM. Senator, first to respond to your request. We

would certainly be happy to work with you in providing additional

information about the questions you raise as to how the mercury

proposal was put together and the information we had available.

Second, as I indicated a second ago, one of the great things, one

of the great attributes of EPA is it still is a very collaborative work

environment. We have a lot of very capable people, people who understand the issues and frankly people have diverse opinions on

where we should go on these issues. You see that reflected in our

policy debates. You see that reflected in the articles like you saw

yesterday in the Post and the Times. But that is part of what

makes us strong.

We have the ability to accept diverse opinions. We have the ability to factor that into our decisionmaking and ultimately that does

result in better policies, better regulations, and a better approach

for the Nation. So I think you are seeing a great process in action,

and as I said a little while ago, we haven’t even proposed this rule

yet. We are still working on the draft proposal. So I am hoping to

get that done soon, and then I am hoping we can have the debate

in earnest in public by way of the public comment period.

Senator LAUTENBERG. Well, if I may just say, ‘‘the Regional Offices therefore appreciate the opportunity to review and comment

on the drafts. However, we are disappointed that the OAQPS formulated revisions to the OI/AI policy without seeking Regional

input and was reluctant to share the draft policy with the Regional

Offices. This trend of excluding the Regional Offices from involvement in rule and policy development efforts is disturbing.’’

Do you consult with the regional offices? Do you credit them?

You said that individuals have diverse opinions and that makes it

more challenging. I don’t know. These are experienced people, are

they not, who have had these important assignments in the field?

Mr. WEHRUM. Sure. We rely a lot on the efforts and the judgment of our regional offices. In fact, we have a structure in place

by which we provide draft regulations of the sort that we are talking about here, to the regional offices for their review and for their

input. That is a normal part of the process and that is the process

that you see unfolding in front of you now.
44

Senator LAUTENBERG. So then they are just plain wrong?

Mr. WEHRUM. Well, they care deeply about the opinion and I am

glad they care deeply about the rule. I am glad they expressed

their opinion and we are certainly going to make sure they have

a seat at the table as we go forward, Senator.

Senator LAUTENBERG. Thanks, Mr. Chairman.

Senator INHOFE. Thank you, Senator Lautenberg.

Senator Carper.

Senator CARPER. Thanks, Mr. Chairman.

I just want to ask Mr. Gulliford, how is the hearing going?

[Laughter.]

Mr. GULLIFORD. Senator, thank you for your question. It is going

very well for me.

Senator CARPER. It is nice to have you here. I am sorry I didn’t

get to meet your family.

Mr. Wehrum, I am delighted to have met part of yours. I understand your wife is from Delaware?

Mr. WEHRUM. That is correct.

Senator CARPER. I am sorry she couldn’t join us today, but thank

you for coming, and thank you both for your service to our country.

Mr. Wehrum, last October, I am sure you recall, you joined Administrator Johnson and a number of your colleagues from EPA to

make a presentation to this committee following a modeling that

was done on Senator Jeffords’ proposal for a multi-pollutant bill,

the Administration’s proposal and a bipartisan proposal that I had

worked on with a number of our Republican colleagues.

One of the questions that has consistently come up since that

presentation involved EPA’s determination that under our bill, the

Carper-Alexander-Chafee bill, that there would be about a $1 offset

for a ton of carbon from our proposal.

Let me just ask, do you have any idea how EPA came up with

that conclusion?

Mr. WEHRUM. Yes, Senator Carper. The provisions in the Clean

Air Power Act imposed mandatory carbon requirements on the

power sector, but allowed that obligation to be satisfied by achieving offsets that could be obtained outside of the industry. So our

estimate of the cost of the offsets that would be necessary for compliance was a dollar or two a ton. It was based largely on the fact

that the powerplants could go off-sector and find other ways to satisfy that obligation.

Senator CARPER. I think you may have answered this. Let me

ask this anyway, what is it about our proposal that allows offsets

to be purchased so cheaply, for example, compared to the cost of

similar approaches, say, in Europe?

Mr. WEHRUM. Well, an excellent comparison is the Clean Air

Power Act versus the legislation introduced by Senator Jeffords,

which also included mandatory carbon constraints, but required

those reductions to be achieved in-sector. We estimated that the

cost of those provisions would be very high because it would require significant fuel shifting out of coal and into natural gas and

other forms of generation that produce much less carbon.

So that is a good basis of comparison, where the ability to go offsector in your legislation resulted in an estimate of much less cost
45

than the comparable, or at least similar provisions in Senator Jeffords’ legislation.

Senator CARPER. So when you say ‘‘off-sector,’’ we are talking

about the ability for an emitter, somebody that is putting out the

carbon dioxide, to go to a farmer and say we would like for you to

change the way you till your fields, the way you run your animal

feedlots, to encourage the maintenance or actually the planting of

additional forests? Is that the sort of thing you are talking about?

Mr. WEHRUM. That is correct, Senator.

Senator CARPER. All right. We had quite a public dispute over

the last really 3 years trying to get information out of EPA. You

may recall we tried for, I guess starting in 2002, to try to get EPA

to model Senator Jeffords’ proposal, the President’s proposal and

our bipartisan proposal with respect to the health consequences of

each of the three, what are the economic consequences of each of

the three approaches, what are the environmental consequences of

each of the three.

It took forever to get the modeling done. I think back in 2004,

we got a letter from EPA that said that this committee was not

preparing to move multi-pollutant legislation that year, and EPA

would not conduct the analysis that we were seeking. That was

just one of a variety of responses that slowed down the process.

I think if EPA had actually done the analysis that we requested

starting in 2002 or 2003, we may have a bill passed and enacted

at this point in time. I am pleased we finally got the analysis. I

frankly was pleased with the analysis itself. But I guess my question is, could you just take a minute and explain to us how, if you

were actually the Assistant Administrator for Air, and you are running the office, how your office’s cooperation might be any different

than it was for those 3 years when you were the prior Assistant

Administrator’s chief advisor?

Mr. WEHRUM. Senator, I was not involved in all the discussions

related to the analysis that was conducted on the various competing legislation. Your question was mostly forward looking, and

what I can tell you is I will commit to work with you and your staff

and with other members and the Chairman, to identify information

needs and analytical needs that you have, and I will try to work

with you to satisfy those needs.

Senator CARPER. I hope so.

The last thing I want to mention, I am going to submit one question for the record on the toxic inventory question. But I understand that not too long ago, maybe a month or so ago, EPA published a study, I think it was centered in Ohio, where you looked

at the mercury that is coming back down onto the ground from

sources emitted. They found out, I understand the EPA study said

about 75 percent of the mercury that was measured coming back

down to earth in Ohio was found to have come from sources within

400 miles or less of where it came back to the earth.

The Administration’s is proposing to deal with mercury in a

multi-pollutant bill on a cap-and-trade system. I question the wisdom of the cap-and-trade approach on mercury, given the results

that you just published from Ohio.

I would just ask you, how do you reconcile the two? The EPA approach and the analysis from Ohio?
46

Mr. WEHRUM. Senator, there are two aspects to your question I

would address. The first is how did those results, which were a

product of measurements in the field, folks went out and took samples and did the analysis, how did that compare to the analysis

that we did just before the Clean Air Mercury Rule? The answer

is, it squares up pretty closely. They are not exact and we wouldn’t

expect them to be exact, but they square up pretty closely.

Our models predicted significant deposition in the Steubenville

area, which is the area addressed by the study, from domestic powerplants and that is exactly what the Steubenville data seemed to

show. That report has not been published yet, so it is not final, but

it is getting close.

So we were frankly gratified by that. It shows that there is a

pretty high degree of consistency between our analysis and the actual study that was done with Steubenville.

The second thing I would say is when you look at the further

analysis we did with the Clean Air Mercury Rule, you see that we

predict substantial reductions in deposition in the Steubenville

area on the order of 70 percent to 80 percent, after application of

the Clean Air Mercury Rule. So we predicted and the analysis

shows there is deposition attributable to domestic powerplants and

our analysis further shows that that will be substantially addressed by application of the Clean Air Mercury Rule.

So we think that is very important information and certainly

helpful to us as we assess the implementation of the Clean Air

Mercury Rule.

Senator CARPER. I don’t have time to get into it further. It would

seem strange to me if in our cap-and-trade system with respect to

Steubenville, I am almost done here Mr. Chairman and I know my

time has expired, but for Steubenville to go out maybe to folks in

Des Moines or someplace in Nebraska or South Dakota or North

Dakota and say, well, we are going to get you to work out a deal

where they reduce mercury emissions there in order to help offset

the situation in Steubenville, that just doesn’t add up.

I think the EPA’s own analysis would undermine that argument.

That is an argument, I guess, for another day, and we will have

a chance to revisit it.

But I have a question, Mr. Chairman, that I want to submit for

the record on the toxic release inventory changes that EPA is proposing. We welcome your input there.

Thank you.

Mr. WEHRUM. Thank you.

Senator INHOFE. Thank you, Senator.

I understand that Senator Jeffords has one more question. That

is perfectly all right.

Senator JEFFORDS. Mr. Gulliford, your academic training was in

forestry and most of your professional experience relates to soil

conservation issues. Please describe your experience on toxic substances and chemical issues.

Mr. GULLIFORD. Thank you, Senator, for the question.

My last 4 years working at EPA in Region VII in Kansas City,

we have done a lot on what I consider the application of the work

that OPPTS does here in headquarters. They develop the programs. They develop the risk assessments that are helpful to us in
47

setting thresholds for cleanups on our Superfund work that we do,

our site cleanups that we do.

As we analyze programs in the field, we look to that information.

Another toxics area that we worked at, we have one of the few sites

in Coffeyville, KS, where PCBs are actually processed and treated

and dealt with. We permit that site, for example. We do the inspections on that site to assure that they are meeting the terms of their

permits. So there are a lot of application sites to the toxic program

that we implement in the fields, and that is what I have been a

part of in Region VII.

Senator INHOFE. Thank you very much, and thank you to both

the witnesses. It has been a long morning. We appreciate your

straightforward answers.

We are adjourned.

[Whereupon, at 11:35 a.m., the committee was adjourned.]

[Additional statements submitted for the record follow.]

STATEMENT OF HON. GEORGE V. VOINOVICH, U.S. SENATOR FROM THE

STATE OF OHIO

Mr. Chairman, thank you for holding this hearing. I welcome the three very qualified individuals before us this morning who have been nominated for key positions

at the Department of Transportation and Environmental Protection Agency. I first

want to thank all of you for your willingness to serve, and even more importantly,

I thank your families for their sacrifices.

Our first nominee this morning is Richard Capka to be Administrator of the Federal Highway Administration. You have extensive experience in dealing with our

nation’s and the world’s infrastructure. In addition, I know you were very helpful

in helping begin the restoration process in the Everglades. With Masters Degrees

in Engineering and Business Administration, you served in the Army Corps of Engineers, for the State of Massachusetts, and as Deputy Administrator for FHWA since

2002.

I have become increasingly concerned that we are ignoring our physical infrastructure needs. According to FHWA’s 2002 Conditions and Performance Report,

$106.9 billion through 2020 is needed annually to maintain and improve our highways and bridges. To address this need, I introduced the National Infrastructure

Improvement Act of 2006 (S. 2388) with Senators Carper and Clinton. I hope to

hear your thoughts on this legislation and how we can address our needs.

Second, we have James Gulliford who has been nominated to be Assistant Administrator of EPA’s Office of Prevention, Pesticides, and Toxic Substances. In addition

to serving as EPA’s Region 7 Administrator, you bring more than 25 years of experience of administering environmental programs pertaining to agriculture and mining

including for the State of Iowa.

The last nominee is Bill Wehrum to be Assistant Administrator for EPA’s Office

of Air and Radiation. When EPA Administrator Steve Johnson was before this committee for his hearing, I told him that he was taking on one of the most difficult

positions in the Federal Government. Bill, this is the most difficult job within EPA.

As I told the Administrator, no matter what you do it is either too far for industry

or not enough for the environmental groups.

The fact of the matter is that you understand this very well. You currently serve

as the Acting Assistant Administrator and were counsel since 2001. In addition, you

bring a wealth of experience and knowledge to the position as a Registered Professional Chemical Engineer and former environmental attorney. As Chairman of the

Subcommittee on Clean Air, Climate Change, and Nuclear Safety, I have had the

pleasure to work with you over the past few years and found you to be balanced,

conscientious, and hard-working. I look forward to working with you more on how

we can better harmonize our environment, energy, and economic regulations.

Again, I thank all you for being here today and for your desire to serve this country.
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STATEMENT OF HON. LINCOLN CHAFEE, U.S. SENATOR FROM THE

STATE OF RHODE ISLAND

Thank you, Mr. Chairman. I would like to join you in welcoming the nominees

this morning. Mr. Capka has been nominated to be the Administrator of the Federal

Highway Administration (FHWA). Prior to his appointment in the FHWA, Mr.

Capka oversaw the Massachusetts Turnpike Authority after a 29-year career with

the Army Corps of Engineers. At the Turnpike Authority he directed oversight of

the $14.5-billion Central Artery/Tunnel project in Boston, the largest and most complex infrastructure project in the United States. I look forward to working with Mr.

Capka to ensure that civil projects continue to be completed on a prompt and fiscally responsible schedule and that the safety of our interstate highway system continues to improve.

This morning, the committee is also considering two nominees to be Assistant Administrators at the Environmental Protection Agency (EPA). Mr. Gulliford has been

nominated to serve as the head of the EPA Office of Prevention, Pesticides and

Toxic Substances. Mr. Gulliford currently serves as the EPA Region 7 Administrator, and has a great deal of experience with pesticide issues and natural resource

management in the Midwest. Should Mr. Gulliford be approved for the Assistant

Administrator position, I encourage him to visit Rhode Island and other New England States where lead and other toxic substances such as mercury continue to be

plague our housing stock and our aquatic environments.

Mr. Wehrum has been nominated to serve as Assistant Administrator for the EPA

Office of Air and Radiation. After serving with EPA for nearly 41⁄2 years and several

years in private law practice on air regulatory issues previously, Mr. Wehrum has

a great deal of expertise in the Federal air policy arena. I agree with Mr. Wehrum

that this Nation continues to have challenges ahead in terms of attaining clean air,

but we have also come a great distance. While I continue to oppose the Administration’s Clear Skies proposal, I remain a strong supporter of the cap-and-trade concept

for addressing the four major pollutants from the powerplant sector. I look forward

to continuing to work with this committee and EPA to craft a Clean Air reauthorization bill that moves us toward the ultimate goal of clean air for all Americans.

I look forward to hearing from each of the nominees. Thank you.

STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR FROM THE

STATE OF CONNECTICUT

Mr. Wehrum comes before the Senate Environment and Public Works Committee

today as President Bush’s nominee to the position of Assistant Administrator for Air

and Radiation at the Environmental Protection Agency. For several years now, Mr.

Wehrum has been an influential attorney in the EPA air office. In that role, he has

shaped and promoted a series of Agency decisions that needlessly threaten to prolong and even increase the high concentrations of industrial air pollution that millions of Americans are forced to breathe. Unfortunately, a review of even just a sample of the harmful initiatives that have emanated and continue to emanate from

EPA’s Air Office with Mr. Wehrum’s active participation and support raises troubling concerns about this nomination. These episodes and several others will be the

subject of written questions that I will submit to Mr. Wehrum.

By his own account, Mr. Wehrum was deeply involved in developing the so-called

‘‘Clean Air Mercury Rule’’ that EPA issued on March 15, 2005. That rule rescinded

the Agency’s prior commitment to mandate that, within 3 years, coal-fired powerplants control their toxic mercury air pollution to the maximum extent achievable.

In place of that unmet promise, which would have yielded 80 to 90 percent cuts in

mercury emissions at each of the Nation’s coal-fired plants by 2008, EPA left the

public with a rule that will take until sometime after 2026 to reduce coal-plant mercury emissions by 70 percent. Moreover, the rule will allow many coal plants to

avoid substantial control by buying mercury emissions credits from cleaner plants.

In a study recently conducted at a site in the Ohio River Valley, 70 percent of the

mercury found in the rainwater originated at nearby coal-burning plants. The fact

that mercury emissions might decrease elsewhere in the country will be no consolation for the families living near plants that buy permission to keep their emissions

high.

Mr. Wehrum was also a central participant in EPA’s October 2003 promulgation

of an ‘‘Equipment Replacement Provision’’ that dramatically expanded a regulatory

exemption from the Clean Air Act requirement that large industrial facilities accompany emissions-increasing renovations with the installation of up-to-date pollution

controls. Two months before EPA issued the final provision, the General Accounting

Office determined that EPA’s stated reasons for the change were based on self-serv-
49

ing, unsubstantiated industry anecdotes, rather than on reliable data. Shortly after

EPA published its rule change, the U.S. Court of Appeals for the District of Columbia stayed the action after finding that it was likely unlawful and would cause irreparable harm to the public if allowed to take effect. Nine months later, EPA’s inspector general found that the Agency’s support for the expanded exemption had already

‘‘seriously hampered’’ Clean Air Act enforcement against coal-fired powerplants and

that the exemption would ‘‘result in significant amounts of lost emissions reductions.’’

Despite mounting condemnations from both within and outside of EPA, Mr.

Wehrum and his colleagues refused to rescind the expanded exemption. On March

17, 2006, however, a unanimous panel of the D.C. Circuit found the EPA rule unlawful and vacated it. The panel wrote that EPA’s attempted legal defense of the

rule a defense crafted in no small part by Mr. Wehrum would make sense ‘‘[o]nly

in a Humpty Dumpty world.’’

Rather than abandoning its misguided effort to undermine the Clean Air Act, Mr.

Wehrum’s air office is forging ahead with a new proposal to neutralize the same pollution-control requirement that it unsuccessfully targeted in its 2003 rule. EPA’s

stated goal for the new rule is conformity with the result of a decision by the U.S.

Court of Appeals for the Fourth Circuit, which rejected EPA’s longstanding interpretation of key Clean Air Act language. That Fourth Circuit interpretation was later

superseded, however, by a D.C. Circuit holding that upheld the erstwhile EPA position in a decision that, by law, establishes the governing rule across the entire country. Thus, EPA is ignoring a binding court decision in order to bring air-quality protection across the entire country down to the level prescribed by a ruling that never

applied outside of one region and is in any event no longer controlling law. Mr.

Wehrum’s office is again pursuing an approach that would make sense only in a

Humpty Dumpty world. The current, ill-conceived EPA air initiative, like the one

in 2003, is having a negative impact even before it becomes a final rule. Just last

week, the power company defendant in one of the largest-ever Clean Air Act enforcement suits filed a brief in the U.S. Court of Appeals for the Sixth Circuit arguing that it should not be liable for its pollution increasing activities since, under

EPA’s new proposed rule, those activities would not trigger the Clean Air Act’s control requirements.

I cannot close without briefly mentioning two additional, related examples of the

work that Mr. Wehrum has done in EPA’s air office. Mr. Wehrum has been an enthusiastic advocate of a multi-pollutant powerplant bill that fails to address carbon

dioxide pollution. He has also helped to craft a recently issued EPA interpretation

of the Clean Air Act that makes it easier for companies building new coal-fired powerplants to avoid using technology that sequesters carbon dioxide waste so that it

can be placed into permanent storage. Carbon dioxide pollution from powerplants

is contributing to man-made climate change on a global scale. We must start achieving substantial cuts in that pollution now if we are to avoid devastating harm to

our economy and the health and the wellbeing of our population. I find deeply disappointing the persistent aversion of senior EPA officials to meaningful action to address this problem. As for EPA’s steps to hinder the spread of technology that could

allow us to continue relying on coal without worsening global warming, those actions simply defy explanation.

I urge Mr. Wehrum, in responding to my questions and concerns, to indicate

whether he has changed any of the views that led him to advocate policies that I

find starkly antithetical to the Environmental Protection Agency’s mission. I also

encourage him to pledge specific steps that he would take as assistant EPA administrator to return the Agency’s air office to the task of achieving the dramatic reductions in industrial air pollution that, as EPA’s own studies show, return benefits to

the American public far in excess of the costs those cuts impose on industry.

STATEMENT OF RICHARD CAPKA, NOMINATED TO BE ADMINISTRATOR, FEDERAL

HIGHWAY ADMINISTRATION

Chairman Inhofe, Senator Jeffords and members of the committee, I appreciate

the opportunity to appear before you today as you consider my nomination to be the

Administrator for the Federal Highway Administration. I am honored to have

earned the confidence of the President Bush and Secretary Mineta for this important position. But I know, Mr. Chairman, that you and the committee have a very

important obligation to the American people. If confirmed, I pledge to work with

this committee and Congress to ensure our Nation is strengthened through the work

done at Federal Highways.
50

It is an honor to be presented with an opportunity to continue to serve our great

Nation. Most of all I am honored, proud and blessed to have the love and support

of my wonderful wife, Susan; and a family of our two sons, our daughters-in-law,

three grandsons and three grandchildren who are on the way. They have been beside me for a career of public service that includes almost 30 years of proudly wearing the uniform of a career military officer in numerous assignments here and

abroad while commanding some of the finest organizations in the U.S. Army Corps

of Engineers.

Upon retirement I continued my public service as a professional engineer by accepting a challenging opportunity to serve in Massachusetts and manage one of the

Nation’s largest and most complicated public works projects. There, I earned the

praise of the DOT–IG while establishing, for the first time, a budget with the appropriate controls that has enabled cost forecasts to remain unchanged through today.

It became the basis for the Federal approval of the Central Artery’s 2002 Finance

Plan and has remained unchanged through today.

I have also served the last 31⁄2 years in Washington addressing the Nation’s transportation needs as the Deputy, and now, Acting Administrator for the Federal Highway Administration. I have focused my energy on increased stewardship of the Federal Aid Highway program, providing effective Federal response to natural disasters, reducing highway fatalities, relieving congestion and efficiently addressing the

needs of our Nation’s highway requirements.

I had a unique opportunity when I retired from military service. I was able to

select a new career direction from a number of different opportunities. Without hesitation I chose transportation. I did so based upon my personal, worldwide observations of the positive correlation between the quality of a Nation’s transportation system and the strength of that Nation’s economy and quality of life. Our Nation’s economic strength, our security, our individual freedom to travel, and our quality of

life are all tied to the quality of our transportation systems.

I have learned over the years that the greatest accomplishments are not the results of a single individual’s efforts but the combined, collective efforts of a ‘‘team

of teams’’ one that is focused on a clear mission and motivated with a common understanding of success. I have learned through the management of many large

projects, programs and organizations that, no matter how challenging, the ‘‘technical

engineering’’ is often the easy part of the delivery process. The engineers will tell

you, ‘‘Just tell us what you want done, provide us the resources and we’ll get it

done!’’ But I have learned that it takes a great deal of synchronized effort from a

skilled pool of diverse talent across a wide and varied set of stakeholder interests

to get to the point of knowing what needs to be done and providing the direction.

Whether achieving an important piece of legislation such as SAFETEA–LU, responding to a disaster, solving a complex environmental issue or delivering a complex megaproject, the quality of success will be directly related to the quality of the

team. If confirmed, teamwork at all levels has been and will always be my focus.

If confirmed, I will look at the prospects of this new opportunity to serve with

optimism and enthusiasm. I see opportunities for us to improve the system that we

have. We will be celebrating the 50th Anniversary of our Interstate Highway System on June 29 of this year yet our Nation faces significant challenges to the continued success of our highway and multi-modal surface transportation systems. It’s

tragic that nearly 43,000 Americans are killed on our roads every year. Congestion

is not only clogging the routes to and from work and recreation it is also clogging

the movement of freight that is so vital to our economy. The quality of our environment and the vitality of our communities all depend upon the quality of our transportation planning, program delivery and the efficient management of what we

have.

Innovation must and will be at the heart of our solutions and I am excited about

the prospects of helping to create an environment that encourages innovation from

all sectors of the transportation community: innovative materials and techniques,

innovative policy, and innovative partnerships. Solutions will require the serious attention, coordination and cooperation among a whole range of stakeholders, at all

levels of the public sector, the private sector and academia. With your confirmation

I would be excited about the prospects of working with the commissions that you

have wisely chartered to address these very issues as we move toward our next reauthorization.

I have been honored to be part of a great team of dedicated professionals who

make up the Federal Highway Administration and the State Departments of Transportation. I have learned great respect and admiration for the whole host of stakeholders who make up the transportation community and, if confirmed, I will look

forward to continuing solid and very productive relationships.
51

If confirmed, I will continue to work with my colleagues at U.S. DOT, at other

Federal and State agencies, and with other transportation stakeholders. Most importantly, if confirmed, I will work diligently with you and Congress to both effectively carry out SAFETEA–LU and to help shape the future of surface transportation.

Again, thank you, Mr. Chairman, and members of the committee. I look forward

to answering your questions.

RESPONSES BY RICHARD CAPKA TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. Highway Trust Fund.—By all estimates, the Highway Trust Fund will

run out of money by the end of the life of this bill. This year’s budget proposal

shows the trust fund running out of money late in fiscal year 2009. This is obviously

of great concern to all involved. Secretary Mineta has taken the position that we

should wait and see what receipt estimates look like next year.

The President’s fiscal year 2006 budget proposed adjusting how we account for

certain fuel tax refunds, specifically ending the current practice of the Trust Fund

reimbursing the General Fund for certain types of tax refunds that are of questionable benefit to highway users. This change would have resulted in about $1 billion

a year of additional funds being credited to the trust fund. Wouldn’t it have been

prudent to include a similar proposal in the fiscal year 2007 budget to put the estimates back in the black?

Response. Chairman Inhofe, we are optimistic that the outlook for the Highway

Trust Fund’s status will improve. Currently there is sufficient funding available in

the highway trust fund to meet the near term cash demand. The President’s fiscal

year 2007 budget has not proposed to depart from the authorization spending levels.

The Administration is monitoring the highway trust fund balances closely. If confirmed, I will continue to apprise Congress of its status.

Question 2. Environment.—SAFETEA–LU included several environmental provisions that will require regulations or guidance to implement. Could you tell me

where we are in implementing these provisions? In particular, I am interested in

hearing how soon we will see something on the surface transportation project delivery pilot program, 4(f) and transportation conformity.

Response. Chairman Inhofe, the Federal Highway Administration (FHWA) has

begun implementation of SAFETEA–LU’s environmental provisions. Implementation guidance has been posted on the Agency’s Web site and we will continue to update those materials. We have several significant actions underway.

On April 5, 2006, FHWA published a notice of proposed rulemaking (71 FR

17040), which provides the application requirements for the surface transportation

project delivery pilot program. The final rule will be supplemented with guidance

concerning audits, performance measures, legal responsibilities, and termination of

the pilot program.

Section 6009 of SAFETEA–LU amends the section 4(f) statute to simplify the

processing and approval of projects that have only de minimis impacts on lands protected by section 4(f). FHWA is currently working with the Federal Transit Administration (FTA) on the NPRM to establish standards for use in determining alternatives that are feasible and prudent, as required by section 6009. On December

13, 2005, FHWA and FTA jointly issued guidance entitled ‘‘Determining De Minimis

Impacts to Section 4(f) Resources.’’ FHWA also issued guidance for applying the 4(f)

exemption for the Interstate Highway System on January 13, 2006.

Section 6011 of SAFETEA–LU made a number of revisions to the Clean Air Act’s

transportation conformity provisions. On February 14, 2006, the Environmental Protection Agency (EPA) and the U.S. Department of Transportation issued joint guidance to address these revisions and explain how to implement these changes during

the period before the Federal transportation conformity rule is revised. Section

6011(g) requires that EPA, within 2 years of the date that SAFETEA–LU was enacted, revise the transportation conformity rule as necessary to address the new

statutory provisions.

Question 3a. Highway Safety.—Since the passage of SAFETEA–LU, how has the

Federal Highway Administration assisted states in developing their strategic highway safety plans outlined in section 1401 of the Act, and what steps do you plan

to take in continuing these efforts as the target date for completion of State safety

plans draws near (October 1, 2007)?

Response. Chairman Inhofe, FHWA has taken a number of steps to assist States

in developing their Strategic Highway Safety Plans (SHSP). In October 2005,

FHWA, in conjunction with the National Highway Traffic Safety Administration,
52

Federal Motor Carrier Safety Administration, Federal Transit Administration, and

Federal Railroad Administration, issued interim guidance on SHSPs that provided

the background for discussions at the Strategic Highway Safety Plan Peer Exchange

in November 2005. At the Peer Exchange, all States were invited to share experiences, best practices, and questions. FHWA also conducted a ‘‘listening session’’ at

this conference to solicit input on guidance needs.

Subsequent to the conference and after presenting and discussing SHSP requirements across the country at various State and regional meetings, on April 6, 2006,

FHWA issued final guidance entitled ‘‘Strategic Highway Safety Plans: A Champion’s Guide to Saving Lives.’’

Assisting the states in this endeavor is important to me. If confirmed, FHWA will

continue working with States to meet the deadline for developing SHSPs.

Question 3b. Do you expect all states to achieve compliance with their safety plans

within the timeframe designated in SAFETEA–LU?

Response. Chairman Inhofe, I expect all States will have developed and implemented a Strategic Highway Safety Plan by October 1, 2007. Approximately 22

States had some form of a strategic or comprehensive highway safety plan prior to

the passage of SAFETEA–LU. Since the enactment of SAFETEA–LU, FHWA has

been working with the States to create new plans and to bring existing plans into

compliance with the new requirements.

Question 3c. Have you encountered any obstacles or identified any areas that need

improvement specifically within the safety provisions of SAFETEA–LU?

Response. Chairman Inhofe, SAFETEA–LU provides a major improvement overall

for the future of highway safety, particularly with the emphasis on strategic safety

plans and the comprehensive nature of the highway safety requirements. I believe

the current program structure will serve us well over the coming years.

Question 4. Leasing of Toll Roads.—There have been two very high profile cases

of private partnerships paying billions of dollars for long-term leases of existing toll

roads: the Chicago Skyway and the Indiana Toll Road, which has not closed yet. The

two deals are very different. Indiana intends to use the proceeds for transportation

uses while the Chicago does not. The Chicago Skyway received very few Federalaid highway dollars, however, I am concerned about the potential leasing of a road

that has received substantial Federal investment and where the proceeds would not

go to transportation improvements.

I know FHWA has been following these types of deals very closely. What are your

thoughts on a constraining the use of proceeds from the lease of a road that has

received Federal investment?

Response. FHWA has examined the issue of the use of proceeds from the sale or

lease of a highway. Section 156 of title 23, U.S. Code, applies to toll road sale and

leases. That section provides that if any of the real property (including land and any

improvements thereto) for the sold or leased toll road was acquired with Federal assistance, the State is required to use the Federal share of the net income from the

sale or lease only for projects that would be eligible under title 23, U.S. Code. The

non-Federal share is not subject to this restriction.

If confirmed, I will ensure that the provisions of title 23 are enforced appropriately. While I would personally prefer that all proceeds be reinvested in transportation-related activities, I would defer to the State to determine how the non-Federal share will be used.

Question 5a. Emergency Relief Program.—Based on your experience, most recently at FHWA, and also your leadership role in the Federal flood system recovery

response to the 1997 California floods, do you feel that the Emergency Relief Program has responded well to damage caused by Hurricane Katrina? Given your latest

experience, what changes would you make in the program or its management?

Response. Chairman Inhofe, I am satisfied that Federal and State highway response to Hurricane Katrina and other recent natural disasters was timely, effective, and appropriate. The successful response is attributable largely to the relationship between Federal Highway Administration Division Offices and State departments of transportation, which existed prior to the disaster. Our Division Office

staff in the affected States were immediately available to the State departments of

transportation to provide program and technical assistance, as well as preliminary

surveys and inspections of damaged roadways. For Louisiana and Mississippi, each

State received a small amount of Emergency Relief funding to help get them started

in the recovery of damaged Federal-aid highways, even as more detailed assessments of damage were taking place.

We are evaluating our experiences with the Emergency Relief program based on

the response to the recent Gulf Coast hurricanes. That evaluation will help us deter-
53

mine what enhancements could be made to the Emergency Relief program and its

management. We also plan to incorporate the results of findings and recommendations from reviews of the Emergency Relief program by the U.S. Department of

Transportation’s Office of Inspector General and by the General Accounting Office

that are underway.

Question 5b. What actions is FHWA taking to prevent fraud and abuse in Emergency Relief Program supported projects?

Response. Chairman Inhofe, financial stewardship is a very important issue to me

personally. If confirmed, I commit that it will remain a top priority at the Agency.

FHWA is undertaking a number of actions to prevent fraud and abuse in Emergency Relief program supported projects. Under the Emergency Relief program,

States must apply for reimbursement for eligible expenses. FHWA reviews these applications to ensure the Emergency Relief funding is spent on eligible work. Additionally, Emergency Relief funding is not disbursed until FHWA has received a legitimate bill.

All contracts for permanent repairs are competitively bid, since the competitive

bid process ensures that awarded contract costs are as reasonable as possible. Contractors’ payments are based on the actual work performed with inspection, oversight, measurement and payment provided by the State department of transportation. Payment is based on competitively bid unit prices.

Question 5c. The Administration sent up a supplemental appropriations request

on October 28, 2005 to pay for the Emergency Relief claims from Katrina, Rita and

everything prior.

Since then, estimates for Katrina and Rita related repairs have increased, preventing the backlog from being cleared out. Why has the Administration not submitted a new request to liquidate the backlog (as was their intent at the time of

the last submission)?

Response. Chairman Inhofe, the magnitude of the natural disasters, which have

occurred over the past 2 years, has exceeded the capacity of the Emergency Relief

program. FHWA has had to rely on supplemental appropriations to address the additional needs of the Emergency Relief program in the past couple of years. We have

provided necessary information to Congress about the Emergency Relief backlog, as

well as the Gulf Coast Emergency Relief needs. We are continuing to work with the

Gulf States to further refine what costs are eligible for Emergency Relief funding

as a result of the 2005 Gulf Coast hurricanes. If confirmed, I will continue to work

Congress to address the backlog needs.

Question 6. Open Road Tolling.—The 2007 President’s budget included a proposal

to transfer $100 million from states’ formula funds to a new program to facilitate

and encourage the use of open road tolling initiatives (which is a form of tolling

without the toll plazas). This program was not included in the Administrations reauthorization proposal and comes just a few months after passage of the reauthorization bill. I was a bit surprised to see a new program included in the budget so

shortly after passage of SAFETEA–LU. I am also a bit confused about the actual

purpose of this funding. Any projects that would qualify for a grant under this program would have to be well on the way to developing or implementing a qualifying

tolling mechanism. Do you think that this money would actually generate any new

open road tolling projects or is it just rewarding projects already in the works? I’m

not sure taking $100 million from the states formula funds to reward a specific type

of project is the best use of our limited funding.

Response. Chairman Inhofe, it is critical that we initiate activities that will advise

all of us about the viability of options that may exist to help address the many challenges that will certainly face the Highway Trust Fund at the expiration of

SAFETEA–LU. We intend to use the Open Roads program to facilitate new projects

that will demonstrate the value of innovative ways to finance highways. We hope

that an Open Roads applicant will test pricing on a broader network of roads to better demonstrate the potential for financing highways as a network, rather than as

a single facility.

The $100 million of proposed funding will assist up to five States in demonstrating and evaluating innovative and more efficient methods of charging for the

use of major portions of their highway system. In implementing the program, we

will look for innovative mechanisms that can augment existing sources of State (not

Federal) highway funding, enhance highway performance, and reduce congestion.

The lessons from this pilot program will inform the next reauthorization act.

Question 7a. Research.—What is your vision for the FHWA’s research program,

particularly the primary objectives and key deliverables of that research?
54

Response. Chairman Inhofe, FHWA’s research program is mission-oriented and

stakeholder driven. Our mission is to enhance mobility through innovation, leadership, and public policy. One of the roles that we have defined for ourselves is to be

innovators for a better future. I think that the research we are conducting is critical

to the future of success of highway planning. My goal will be to identify, develop,

and accelerate the transformation of new ideas into better transportation systems,

processes, and services.

Question 7b. As you know, SAFETEA–LU includes a provision that calls for research for the advancement of processes and products related to the three major

building blocks of highway construction: concrete, asphalt, and aggregate. How do

you intend to administer this program to ensure that all stakeholders’ interests are

equitably and adequately represented?

Response. Chairman Inhofe, if confirmed, I will engage stakeholders from a variety of disciplines, including State and local agencies, metropolitan planning organizations, academia, and industry. Technology or innovation end users will be engaged

early in the process to help ensure successful research, deployment, implementation,

and evaluation. FHWA considers merit reviews by stakeholders to be vital to the

continued success of our research and technology program.

Question 7c. TEA–21 included both a provision and a formula for applied research

for materials used in highway construction. TEA–21 specifically calls for an 80/20

match by industry toward the FHWA’s research program, and notwithstanding that

fact, that ratio has been altered to 50/50. What is the status of the proposed match

waiver? When and how do you expect to resolve this issue so that the research agenda may be advanced without further delay or interruption?

Response. As you know Chairman Inhofe, section 5101(b) of SAFETEA–LU

changed the Federal cost share requirement for highway research to 50 percent. If

confirmed, I intend to honor Congress’ intent that a 50 percent match be required

for highway research projects. I am committed to working with industry leaders to

carry out and maximize the effectiveness of the infrastructure research and technology programs, and we look forward to working with the Congress to ensure that

Federal research programs are administered as effectively as possible.

Question 8. Private Activity Bonds.—How is the FHWA coming along in implementing the Private Activity Bond program?

Response. Chairman Inhofe, FHWA, the Office of the Secretary, and the Department of the Treasury are working closely on the implementation of this provision.

We worked with these offices to develop the notice published January 5, 2006, in

the Federal Register (71 FR 642–01), which solicits applications for authority for

tax-exempt financing of highway projects and surface freight transfer facilities.

The January 5, 2006, Federal Register notice solicits requests for such allocations

from interested entities that meet the statutory requirements. There is no window

for applications; rather, applications will be accepted at any time. Further, the notice explains that there is no specified form for the applications and no specific

standards, beyond those in applicable laws or regulation that apply to the consideration of the applications. Upon receipt, U.S. DOT will consider an application in

light of the applicable statutory requirements and the availability of tax-exempt authority for the type and location of the project for which the allocation is requested.

U.S. DOT is particularly concerned that once an allocation is made, the tax-exempt

bonds are issued in a timely manner. If agreed upon schedules are not met, the allocation of bonding authority can be withdrawn.

Together with the Office of Assistant Secretary for Transportation Policy, which

has the lead for implementing this provision within U.S. DOT, we have already met

with several prospective applicants for private activity bond allocations. The first

applications for allocations are expected over the next 3 to 6 months.

RESPONSES BY RICHARD CAPKA TO ADDITIONAL QUESTIONS

FROM SENATOR VOINOVICH

Question 1. I introduced the National Infrastructure Improvement Act of 2006

with Senators Carper and Clinton. This legislation will address the deteriorating

conditions of our nation’s roads, bridges, drinking water systems, dams, and other

public works. If enacted, the legislation will create a National Commission on Infrastructure of the United States charged with aiding in the nation’s economic growth

and ensuring the ability of the nation’s infrastructure to meet current and future

demands. What are your thoughts on this legislation? In particular, what steps do

you believe need to be taken in order to improve our nation’s infrastructure to ensure continued long-lasting economic growth?
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Response. Senator Voinovich, the Administration and I strongly support the need

for the study of present conditions and future needs. We must ensure that our nation’s infrastructure needs are identified and prioritized before we develop a coordinated strategy that addresses those needs. SAFETEA–LU establishes two commissions to address surface transportation needs and financing that should assist the

Administration and the Congress in formulating the next generation of surface

transportation legislation. I note that your bill calls for coordination with the Commission established by section 1909 of SAFETEA–LU. I believe these Commissions

will assist us immensely in identifying the actions we need to take to improve our

nation’s infrastructure to ensure continued long-lasting economic growth. U.S. DOT

will be supporting the efforts of the Commissions and we will make certain that we

are well-positioned to move forward based on the results and recommendations of

these studies. If confirmed, I look forward to working with you and Congress to

identify and address our nation’s infrastructure needs.

Question 2. Your testimony mentions the need to encourage innovation from all

sectors of the transportation community. If you are confirmed, what actions will you

undertake to achieve this goal of innovation and encourage collaboration among the

many stakeholders within the transportation community?

Response. Senator Voinovich, if confirmed, I would continue the philosophical direction demonstrated in a number of recent efforts already underway. In the past

year, FHWA designated a Program Manager for Public-Private Partnerships, who

serves as a central point of contact for State and local transportation officials who

want to explore new and creative ways to design, develop, and deliver highways and

bridges. With enactment of SAFETEA–LU, the Highways for LIFE program is designed to encourage innovative approaches in support of the accelerated adoption of

new ideas in the highway community. We will continue developing financial innovations to extend our resources. Our innovative finance tool kit, which includes Private Activity Bonds, increased flexibility for tolling, TIFIA loans, and State Infrastructure Banks, will attract private sector investment and participation.

Question 3. Pursuant to section 5514 of SAFETEA–LU (to ensure competition in

the specification of culvert pipe), I understand an FHWA rulemaking is imminent.

What can you reveal about the timing and substance of this rulemaking? Will you

commit that FHWA will give favorable consideration to comments designed to craft

the final rule in a way that solves the problem of anti-competitive practices in some

states? Are you prepared to have FHWA take remedial enforcement steps if it is

determined that certain states continue to evade competition requirements in this

area?

Response. Senator Voinovich, on April 17, 2006, the FHWA published a notice of

proposed rulemaking (NPRM) in the Federal Register (71 FR 19667), as required

by section 5514 of SAFETEA–LU. As with any proposed rulemaking, the FHWA will

review and consider all comments submitted to the docket.

I am committed to the principles of competition, and FHWA will continue to provide oversight for all activities in the Federal-aid highway program, including the

provisions in the pipe material and product selection regulation.

RESPONSE BY RICHARD CAPKA TO AN ADDITIONAL QUESTION

FROM SENATOR MURKOWSKI

Question. Mr. Capka, I want to thank you for meeting with my staff the other

day. I apologize for not being able to clear my schedule at that time, but I understand you had a frank and detailed discussion and hope you found it helpful. I just

want you to know I appreciate your courtesy.

One of the issues raised, and it is one that is very important to me, is the issue

of ensuring that we are making solid decisions on major transportation projects. It

has been suggested by some that the EIS process can be altered so that only one

favored alternative is given full analysis, and others are dismissed quickly. I have

some trouble with that concept. The entire purpose of an EIS or draft EIS is to ensure that we are not overlooking anything important. For example, we have a

project being planned in Alaska for which there has been a strong push to eliminate

alternatives early, so that the draft EIS can concentrate largely on a single favored

alternative. This process appears to have been sanctioned by the local FHWA office.

I am all for streamlining the regulatory process where possible, but I also believe

a primary purpose of an EIS is to examine a range of alternatives so that a clear

favorite emerges as a result. What is your view of the NEPA process?

Response. I support the Council on Environmental Quality (CEQ) process, which

requires that all reasonable alternatives to the proposal be examined in the environ-
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mental impact statement (EIS). Reasonable alternatives include those that are practical or feasible from a technical and economic standpoint, rather than simply desirable from the standpoint of the applicant. CEQ’s regulations state that the comparative analysis of alternatives, including the proposed action, is the heart of an EIS.

CEQ’s regulations require a rigorous exploration and objective evaluation of reasonable alternatives, including the ‘‘no action’’ alternative.

The environmental review process should ensure that the impacts of any potential

highway undertaking are considered fully and appropriately. I appreciate the effort

that Congress continues to undertake to further refine the efficiency of the environmental process. We will continue to be good stewards of the environment, while we

seek ways that can improve the efficiency through which we are able to address the

nation’s highway needs.

RESPONSES BY RICHARD CAPKA TO ADDITIONAL QUESTIONS FROM SENATOR BOXER

Question 1. Mr. Capka, I know that the Boston Globe has supported your nomination being considered by the Senate. However, there is criticism of your leadership

of the Central Artery Project when you held the position of CEO of the Massachusetts Turnpike Authority. Even the Boston Globe wrote, ‘‘J. Richard Capka may not

have covered himself with glory during his tenure as chief executive of the Massachusetts Turnpike Authority . . .’’ Can you please discuss your role in the Central

Artery Project, especially any problems, as well as address any concerns that your

leadership was inadequate?

Response. In December 2000, after a tumultuous year where the forecasted cost

of the Central Artery and Third Tunnel (CA/T) Project unexpectedly increased from

$10.8B to $14.075B, the Governor of Massachusetts hired me as the Chief Executive

Officer (CEO) at the Metropolitan Turnpike Authority (MTA) and the ‘‘Big Dig.’’

Soon after I arrived, the CA/T Project Management Team undertook a rigorous and

lengthy review of the Project. We concluded that the Project would require an additional $400 million to complete, for a total project cost of $14.475 billion—a budget

that remains in place today. As a direct result of my efforts to determine actual

project costs and institute new management reporting controls, the USDOT Inspector General and the FHWA Administrator announced their approvals of a new Finance Plan in March 2002, and the Inspector General closed several on-going investigations and withdrew his oversight team from the project.

I strongly believe that recovering costs incurred through the mistakes of contractors, consultants, or others is an important priority in any project. I also believe

that the timing of such actions must complement the efficient and cost effective

completion of the project. My assessment of the situation with the CA/T Project was

that I needed to focus on the current and future problems facing the Project, before

turning to a closer examination of past mistakes. By the time I arrived, the Project

had a long and complex history, with many yet-to-be-substantiated allegations of

cost growth, mismanagement, and mistakes. I was aware that the Board was taking

action concerning cost recovery, and recommendations would be made to me to pursue specific cost recovery steps.

I was directed by MTA Board Members to authorize severance packages for three

attorneys working for the Turnpike Authority.—The severance packages were limited in both scope and time and provided a lump sum payment of a portion of their

annual salary if the employees were involuntarily separated from their positions for

reasons other than malfeasance. The packages also included a ‘‘sunset’’ provision.

Although these severance packages were initiated by the Board Members and not

by me, I determined that they were reasonable.

Contrary to what you may have heard, I was not fired from the Turnpike Authority. After the Acting Governor dismissed two of the MTA Board Members and the

Chairman resigned for personal reasons, the Acting Governor restructured the MTA

to include a full-time Chairman with greater authority and responsibility than the

departing Chairman had possessed. The new ‘‘full-time’’ nature of the Chairman’s

position made the CEO position redundant. When the Board was finally reconstituted, I proposed to the Board Members that the CEO position be eliminated, arguing that the redundancy was inefficient, costly, and not in the best interest of the

MTA. The Board voted 2 to 1 to eliminate the CEO position, and I left the MTA

in July 2002. To date, there is no CEO at the MTA and those responsibilities continue to be handled by the Board Chairman.

I am proud of my accomplishments during my time at the CA/T Project. My experience with the CA/T Project has reinforced my personal commitment to the careful

stewardship of the public resources entrusted to us. It has also strengthened my

management skills and has provided me with invaluable insights concerning the ef-
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fective management of megaprojects that I have shared and if confirmed, will continue to share with others across the Nation.

Question 2. Mr. Capka, you were the Acting Administrator for the Federal Highway Administration during Katrina and the rebuilding efforts. What lessons have

you learned from that situation? How would you apply this knowledge to rebuilding

highways, roads, and bridges after another natural disaster such as a major earthquake in California?

Response. During Katrina, Wilma and other recent hurricanes, the FHWA and

the affected State departments of transportation validated the assumption that effective, pre-existing personal and professional working relationships among Federal

and State highway officials will create the ‘‘working shoulder to shoulder’’ environment necessary to achieve positive results during a crisis. Together we were able

to assess the situation rapidly, review lessons learned from past disaster situations,

and shape strategies that provide the most efficient response. We have learned the

great value in sharing past lessons. For example, we helped Mississippi and Louisiana work with Florida experts to address bridge damage that was quite similar

to what Florida had experienced during the previous hurricane season. Once again,

contracting incentives were employed successfully to expedite highway repairs as in

past disasters.

As we did after the 2004 hurricane season, we are analyzing with our State partners the events of the 2005 hurricane season for lessons learned that can be applied

to future situations. There are always opportunities to improve and share experiences. FHWA also is assisting the Office of the Secretary and the Department of

Homeland Security in developing the Catastrophic Hurricane Evacuation Plans Report to Congress as mandated by SAFETEA–LU.

RESPONSE BY RICHARD CAPKA TO AN ADDITIONAL QUESTION

FROM SENATOR BAUCUS

Question. Acting Administrator Capka, based on FHWA’s January 31 Final Rule

on ‘‘Project Authorization and Agreement’’ (Part 630, Subpart A) the Department of

Transportation in my home State of Montana has been told that it will no longer

be able to program Federal-aid highway funds for partial ‘‘preliminary engineering’’

(PE). This is not consistent with the long established business processes in the Montana Department of Transportation. The Montana DOT has been very successful at

conserving obligation authority by programming a modest percentage of the total

preliminary engineering costs at the beginning of a project, performing detailed field

scoping activities, and then modifying the project to go to full PE costs based on

a well detailed project cost estimate. FHWA has now informed MTDOT that this

business practice is no longer possible and that full PE is needed as soon as a

project is authorized. The specific language in the rule that is cited as the obstacle

concerns the need for a cost estimate to support authorization of funds. The intent

of this rule is to improve the efficiency in the use of Federal funds. I applaud this

intent but believe that an unintended consequence of the rule is that fewer Federal

funds will be available for actual construction, as more funds will be dedicated very

early in the process to full PE costs. In Montana, this could be a difference of as

much as $25 million a year. Could FHWA review its interpretation of this rule so

that the Montana Department of Transportation may continue to program partial

PE at the initiation of a project authorization?

Response. As I understand them, appropriation law principles require a Federal

obligation to be supported by a written cost estimate. These principles further limit

Federal officials from agreeing to fund an activity, but not obligating funds for it,

because such an action would put the Federal Government in a position of not being

able to meet its commitments. The practice by some States of obligating a small

amount on PE projects is not an appropriate practice under this appropriation law

principle.

If confirmed, I assure you that I will review FHWA’s rule and its application to

the practice that MT DOT has followed on partial PE. Our Montana Division Administrator has already been in contact with senior MT DOT officials to discuss this

matter. We are committed to working with MT DOT to find a solution that is consistent with Federal law and achieves Montana’s goals for delivering its Federal-aid

highway program.
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RESPONSES BY RICHARD CAPKA TO ADDITIONAL QUESTIONS

FROM SENATOR LAUTENBERG

Question 1. Regarding New Jersey’s continued use of multi-year funding as an accepted financing method for infrastructure projects, you stated that you have not

backed away from the agreement you reached with the New Jersey Department of

Transportation last fall. The statement in that agreement pertaining to multi-year

funding indicates that FHWA will continue to honor New Jersey’s multi-year funding approach. Can you confirm my understanding that this agreement applies to

both the current statewide Transportation Improvement Program (fiscal year 2006—

fiscal year 2008) as well as the fiscal year 2007—fiscal year 2010 statewide Transportation Improvement Program, which is now under development?

Response. Senator Lautenberg, the agreement between the FHWA and the

NJDOT was written specifically to cover fiscal year 2006-fiscal year 2008 State

Transportation Improvement Program (STIP). New Jersey met the required fiscal

conditions for its STIP for fiscal years 2006 to 2008, which FHWA and FTA approved last September. That approval is still valid and remains in effect for all authorized Federal projects, which continue to receive full Federal funding. No projects

have been denied approval or Federal support. As for future STIPs, FHWA and FTA

have determined that the State must document the availability of necessary revenues to complete the projects as programmed and to maintain and operate the existing highway and transit system.

Question 2. I appreciate your recent efforts to meet with New Jersey’s Transportation Commissioner, along with senior staff from the Agency and the Secretary’s

Office. At this meeting, did FHWA commit to the Commissioner to approve New

Jersey’s use of multi-year funded projects in the fiscal year 2006—fiscal year 2008

and fiscal year 2007—fiscal year 2010 statewide Transportation Improvement Programs?

Response. FHWA did commit to the Commissioner to allow multi-year funding in

future STIPs, including fiscal year 2007—fiscal year 2010. As for any programming

approach, approval of future programming documents (STIPs) will depend upon the

State’s ability to provide financial information to demonstrate that it will have the

needed Federal or non-Federal revenues to complete federally funded or regionally

significant highway, bridge, and transit projects and that sufficient funding is available to operate and maintain the transportation system. The specific financing

method used to advance those projects, such as NJ DOT’s multi-year funding, is the

prerogative of the State. We are awaiting NJ DOT’s STIP submittal for fiscal year

2007—fiscal year 2010.

Question 3. If you are confirmed as Administrator, will FHWA continue to approve

New Jersey’s use of multi-year funding in statewide Transportation Improvement

Programs beyond FY 2007?

Response. Senator Lautenberg, FHWA is ready and willing to approve any State’s

STIP without regard to the financing method used to advance projects, including

multi-year financing. If confirmed, I will continue to work with the State DOT on

the STIP.

Question 4. Since your meeting with New Jersey Transportation Commissioner

Kolluri, are you confident that all FHWA regional officials understand how states

use multi-year funding as a financing method for infrastructure projects? Is there

a document on this subject describing a uniform agency policy? If so, can you provide it to the committee?

Response. Senator Lautenberg, since the issue of multi-year funding and the ability of a State DOT to adequately document the fiscal constraint requirements has

only arisen in New Jersey up to this point, we have not previously issued a document or guidance to FHWA and FTA field offices on it. In light of the many questions that have arisen, I agree that we should provide clarifying information to our

field offices, which will be consistent with the principles reflected in our answers

to the foregoing questions. We will be happy to provide the committee a copy of this

guidance when it is issued.
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STATEMENT OF JAMES B. GULLIFORD, NOMINATED TO BE THE ASSISTANT ADMINISTRATOR, OFFICE OF PREVENTION, PESTICIDES AND TOXIC SUBSTANCES, ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman, Senator Jeffords, and Members of the committee. I am honored

to appear before you today, and am seeking your confirmation to serve as Assistant

Administrator for the Office of Prevention, Pesticides and Toxic Substances

(OPPTS). It has been my pleasure to serve as the EPA Region 7 Administrator for

the past 41⁄2 years, and it is truly an honor to have the support of President Bush

and Administrator Johnson, to serve the American people in this new capacity.

The Environmental challenges we face today are complex. They demand a focused

and unyielding commitment to fully understand the issues, to seek solutions, and

to facilitate change. I believe that working together with Congress, the States, the

regulated community, the public interest community, and the American people, we

can accelerate our environmental progress, foster a strong and vibrant economy, and

assure that our citizens enjoy a safe and healthy environment in which to live, work

and play.

I am dedicated to that belief, and the knowledge and experience that have

brought me here today will serve me and the environment well. I bring a strong

and abiding respect for America’s natural resources. I majored in Forestry Management at Iowa State University. In addition to a traditional forestry curriculum, I

minored in Agronomy, recognizing the importance of soil science, nutrient management, and soil conservation. My MS in Forestry Economics and Marketing added

additional tools to solve complex environmental and natural resource management

problems. Before coming to EPA, I worked for 25 years in the fields of mine reclamation, soil conservation, and water quality protection. I understand well the complexities of natural resource management. I also bring a healthy appreciation for the

work of OPPTS; an office that is at the forefront of protecting public health and the

environment.

Growing up west of Chicago, my anticipation each summer was for several weekend camping trips, and one major family vacation visiting any number of our Nation’s National Parks. Hiking, camping and seeing the incredible beauty of this

country sparked my career in natural resource management and environmental protection. My wife Von and I chose to pass those same experiences and love of our

land to our children. With my son Jason, I have backpacked the Sierras, canoed the

Boundary Waters, and hiked the Grand Canyon.

If I am confirmed in this position, I know that I will be stepping up to the plate

on a number of strategically important environmental issues—issues that are important to many members of this committee. These include pesticide registration, lead

and endangered species just to name a few. I can say unequivocally that I will approach each of them with an open mind, a commitment to fully understand and appreciate all sides of an issue, and most importantly, with the paramount objective

of protecting public health and the environment.

I will use the best and most appropriate tools to get the job done. If a regulatory

approach makes sense, then that is what I will choose. If I can get the job done

quicker and more efficiently by advocating a stewardship or partnership approach,

then I will proceed down that path. If a combination of tools makes the most sense,

then I will move in that direction. I believe this job requires flexibility, creativity

and common sense, and I believe I bring those skills to the job.

Finally, I want to close by acknowledging the importance that my family’s love

and support means to me. I am blessed that my parents continue to live healthy

productive lives back home in Illinois, and the values and training they gave me

years ago continue to be central to my being. My daughter Keri is a constant example to me of strength, character and determination as a nurse in a neurosurgeon’s

office and a part-time student finishing her BA degree. My son Jason is one of the

finest, caring young men I know, and a great outdoor adventure partner. He and

his wife Heidi are beginning their life together and constantly remind me why we

work today to assure the safe, healthy future of our planet. Finally, the love,

strength and partnership of my wife Von inspire and sustain me. With this support,

I am confident that if confirmed Assistant Administrator, my service will reflect

positively on my family, and the needs of all families who rely on OPPTS and EPA

for a safe, healthy environment.

Thank you for the opportunity to appear before you today. I am happy to answer

any questions you have.
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RESPONSES BY JAMES B. GULLIFORD TO ADDITIONAL QUESTIONS

FROM SENATOR INHOFE

PESTICIDES

Question 1a. ESA.—How will the Office of Pesticide Programs assure that endangered species effects determinations under the Counterpart Regulation for pesticide

use are completed in a timely manner, giving appropriate concern to thorough risk

assessment? How does EPA plan to provide clear guidance to the States on their

role in implementing EPA’s Endangered Species Protection Program?

Response. Through the Counterpart Regulations EPA worked with the Fish and

Wildlife Service and National Marine Fisheries Services to establish an efficient and

effective process, which incorporates best available information and accepted scientific methods, to make certain effect determinations without further consultation

with the Services. To implement the Counterpart Regulations, EPA and the Services

completed training to certify 50 Pesticide Program senior managers and scientists

to make appropriate ‘‘not likely to adversely effect’’ determinations. EPA and the

Services also established a standing interagency committee that meets regularly to

enhance coordination and planning and to pursue information and technology exchange. Over the last year the Program has been increasingly incorporating risk assessment procedures consistent with the Counterpart Regulations within on-going

regulatory actions. In addition, the Program identified 11 active ingredients that are

currently being evaluated with the Services to amass information on a wide range

of listed resources, which will be widely applicable to additional pesticide assessments, and to identify opportunities to add efficiencies to future assessments. Even

with these significant developments, fully implementing the Counterpart Regulations will be a massive undertaking, with approximately 600 active ingredients in

over 19,000 products, each of which may have multiple uses, and approximately

1,200 listed species, each with diverse habits and habitat requirements. As discussed with our stakeholders on the Pesticide Program Dialogue Committee, based

on current and projected resources and existing ESA-related litigation, EPA anticipates focusing its work for new and existing pesticides in the registration and registration review programs.

Question 1b. How does EPA plan to provide clear guidance to the States on their

role in implementing EPA’s Endangered Species Protection Program?

Response. In my role as Regional Administrator for Region VII and in previous

positions working in State Government, I bring extensive experience in collaborating

with the States. Currently EPA is working closely with the States in their roles to

educate pesticide users, enforce labeling requirements, review county maps that will

be used in Endangered Species Protection Bulletins, and identify any listed species

issues for section 18 emergency exemption applications under FIFRA. EPA is also

presenting information and responding to questions about State roles at meetings

of the Association of American Pesticide Control Officials (AAPCO) and its three

workgroups of the State FIFRA Issues Research and Evaluation Group (SFIREG).

Planning is underway to hold a national State pesticide Agency workshop this summer. In addition, EPA will continue to rely on regional EPA offices to keep State

regulatory agencies apprised of activities and progress in the Endangered Species

Protection Program. States are important partners in this effort and I am committed to working closely with them.

Question 2. PRIA—EPA put together an extraordinary coalition of environmentalists, farm commodity groups, the pesticide industry, farm workers and labor to support the Pesticide Registration Improvement Act, enacted in 2004. PRIA brings new

funding stability, improves predictability for approval times for registration of new

products, and provides the resources needed to complete tolerance reassessment and

re-registration.

In support of a strong PRIA program, how will you ensure that the funding stability it provides will be preserved and the deadlines it incorporates will be met?

Further, what assurances can you give us that EPA will keep this coalition together

and support the reauthorization of PRIA?

Response. The Agency has monthly meetings with the fee coalition to keep it informed of progress in meeting due dates and responding to other informational requests. In addition, members of the organizations in the coalition also participate

in the PRIA Process Improvement Workgroup, under the auspices of the Pesticide

Program Dialogue Committee (PPDC). The PPDC is the Pesticide Program’s Advisory Committee and this workgroup is providing advice on improvements in registration processes for additional efficiencies.

I fully support the efforts of such diverse stakeholders getting together on any

issue. EPA has met virtually all of the deadlines under PRIA. Implementation of
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PRIA is a success story. One of the hallmarks of PRIA’s success has been the continued collaboration between the Agency and all the stakeholders on pesticide fees. I

look forward to this continued collaboration working with the Administration, with

you and other Members of Congress, as well as the various stakeholders, on all the

various pesticide fee issues. To date over 99.8 percent of actions completed by the

Agency have been completed on or before their due dates.

Question 3. NPDES/CWA.—The last draft of the proposed rule excluded from

NPDES permitting only those circumstances where pesticides are applied, in compliance with FIFRA, directly into, over or near water—so-called aquatic uses and dealing with pests found in or near aquatic environments. As you know, my legislation

(S. 1269) also excludes these pesticides from NPDES permits but also those sprayed

further from a waterway. This is an important difference between my legislation (S.

1269) and the Agency’s proposed rule and one of the primary reasons, I introduced

my legislation and continue to push for its passage despite your rule. Should not

the rule also exclude those pesticide uses that take place further from water?

Such uses almost by definition should result in less pesticide reaching water. I

know that it is the Agency’s longstanding operational approach not to require

NPDES permits under these circumstances. Would it not be wise to extend this proposed rule to cover all pesticide uses applied in compliance with FIFRA?

Response. As I noted at the hearing, EPA’s longstanding practice has been not

to require an NPDES permit for the application of pesticide products in accordance

with its EPA-approved labeling. EPA has issued an Interpretive Statement that a

pesticide, when applied to or over (including near) waters of the United States in

accordance with relevant requirements of the EPA approved labeling, is not a ‘‘pollutant’’ under the statutory definition of that term, and that such an application

does not require an NPDES permit. At the same time as it issued the Interpretive

Statement to this effect, EPA announced a proposed rule for public comment that

would codify this interpretation. The Agency believes it is important to finalize the

proposed rulemaking to address the specific situations that have been the primary

focus of litigation under the CWA. Accordingly, EPA expects to issue the final rule

this summer.

Like EPA’s proposed rule, S. 1269 would clarify the interaction between the Clean

Water Act (CWA) and the Federal Insecticide, Fungicide, and Rodenticide Act

(FIFRA). It is helpful to note that Benjamin Grumbles, Assistant Administrator for

Water, testified in September 2005 before the Subcommittee on Water Resources

and Environment of the House Committee on Transportation and Infrastructure

about H.R. 1729, a bill introduced by Representative Otter that is similar to S.

1269. Mr. Grumbles expressed support for H.R. 1729 to the extent it produced the

same result as EPA’s proposed rule, but he noted a number of ways in which that

bill moves beyond the scope of EPA’s proposal. The Administration has not taken

an official position with respect to either S. 1269 or H.R. 1729.

Question 4. TSCA.—Do you agree that voluntary and cooperative actions with industry (e.g., the High Production Volume (HPV) Challenge program) are useful?

What other areas might be susceptible to voluntary approaches that complement

OPPTS’s activities?

Response. Yes, the voluntary and cooperative actions that OPPTS has engaged in

with industry have proved to be useful. For example, the High Production Volume

(HPV) Challenge Program has resulted in unprecedented collection of existing and

generation of new hazard information. This basic screening level information is now

available in a searchable data base known as the High Production Volume Information System (HPVIS). The success of the HPV Challenge Program effort has served

as a successful model for other stewardship and voluntary efforts. Also, OPPTS is

currently implementing a stewardship program to reduce and work toward eliminating PFOA product content and emissions.

As for areas for additional stewardship opportunities, let me highlight ongoing

work in three areas: nanotechnology, the Green Suppliers Network (GSN), and the

Electronic Products Environmental Assessment Tool (EPEAT). EPA is currently developing a stewardship program for nanoscale materials, including obtaining input

from various stakeholders. GSN is a collaborative venture among industry, the EPA

and the Department of Commerce to work with all levels of the manufacturing supply chain to achieve environmental and economic benefits. EPEAT is an environmental procurement tool designed to help institutional purchasers in the public and

private sectors evaluate, compare and select desktop computers, notebook computers

and monitors based on the products’ environmental attributes. Among others, these

are areas of cooperative actions and stewardship programs that are an important

tool to facilitate the Agency’s success in protecting human health and the environment. For industrial chemical issues where risk mitigation can be achieved faster
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through voluntary partnerships, EPA will pursue that course. As I mentioned during the hearing: ‘‘If I can get the job done quicker and more efficiently by advocating

a stewardship or partnership approach, then I will proceed down that path. If a

combination of tools makes the most sense, I will move in that direction.’’

Question 5. Do you believe that risk-based approaches to chemical decisionmaking

are the most effective means of regulating in this area?

Response. A risk-based approach allows the Agency to address specific, real world

concerns by applying targeted decisionmaking, including restricting uses, addressing

personnel protective requirements, addressing specific manufacturing issues, or

other options to address potential risks in a targeted manner. In implementing

TSCA, EPA will continue to consider the risks, costs, and benefits, as called for by

the statute, taking into account the state of and certainty of the science and will

take action to protect public health and the environment. This approach assures

that critical uses and other unique circumstances are factored into the Agency’s decisionmaking.

Question 6. Will EPA take steps to promote the timely (sooner rather than later)

implementation of EPA’s product stewardship program for nanomaterials?

Response. EPA is moving toward a decision on a possible stewardship program

for nanoscale materials in an open, transparent, inclusive and expeditious process.

EPA is considering the input provided in an overview report prepared by the National Pollution Prevention and Toxics Advisory Committee (NPPTAC) in November

2005. Scientific peer consultations for material characterization and management

practices will engage stakeholders on these key elements of the program this spring.

The current schedule is for EPA to make a decision on implementation in the fall

of 2006.

Question 7. Lead.—Do you agree that EPA should coordinate lead cleanups with

HUD to ensure that multiple lead sources are addressed in urban communities

where interior lead based paint is a significant contributor?

Response. Coordination should occur with the Department of Housing and Urban

Development (HUD) and others to assess the potential to address the lead problems

in a community on a holistic basis during Superfund actions. However, should these

other sources of funding and response actions not be available, the cleanup of the

contaminated yard soils should not wait for the other organizations. CERCLA and

the National Contingency Plan limit Superfund authority to address interior leadbased paint.

At the Omaha Lead Site, for instance, the selected remedy provides for coordination with other agencies and organizations contributing toward a comprehensive

remedy. EPA is coordinating with the HUD-funded Omaha Lead Hazard Control

Program and a recently formed 501(c)(3) focusing on all sources of lead exposure in

the Omaha community. EPA was instrumental in the award of the initial 2003

HUD grant to the city of Omaha, and provided a letter of recommendation in the

City’s most recent successful application that resulted in an additional $2 million

HUD grant award. In addition, EPA is working with the city of Omaha to develop

a model for communities that are threatened by multiple lead exposure sources

under a $500,000 project funded by Congress under a special appropriation.

Question 8. Do you agree that under EPA’s Lead Policy that all sources of lead

contamination must be identified and take into account before deciding on a cleanup

program? If so, during your tenure w/Region 7 what steps did you take to ensure

consistent implementation of EPA’s lead policy at all lead contamination sites?

Response. For the residential soil lead cleanups performed as Superfund remedial

actions, we have (1) evaluated the soil, dust, and water pathways of exposure, (2)

performed risk calculations using site specific data, and (3) followed the ‘‘Superfund

Lead-Contaminated Residential Sites Handbook.’’ We have clearly communicated

that there are multiple sources of lead exposure in communities, including interior

and exterior lead-based paint. We have also coordinated with local HUD and Health

Department officials to determine if funds are available to address the other

sources.

Question 9. Where interior lead-based paint is a major contributor of lead contamination, would you support remediating indoor paint as opposed to extensive excavation activities?

Response. I agree that non-soil sources of lead exposure need to be addressed.

Question 10. Are you aware that there are two different standards for abating

lead exposure risks implemented by EPA: one under Superfund and one under

TSCA? Will you please explain why two standards and approaches exist? Do you

support the continuation of two standards? If so, why and if not, why not?
79

Response. The TSCA Title X rules establish standards for defining a lead hazard

in paint, dust, and soil and clearance levels for interior dust following lead-based

paint abatement. The paint and dust standards are generally applied the same way

at both Superfund and TSCA sites. The Superfund program does not use a cleanup

standard and determines cleanup levels at site using the IEUBK lead model. The

Superfund soil lead screening level is 400 ppm to determine if a potential lead problem in soils exists and this is the same value used under TSCA to determine if a

lead hazard exists in residential soils in play areas. Superfund cleanup levels could

fall either above or below the 400 ppm level depending on the site specific inputs

to the IEUBK model. Running the IEUBK model using only the model default parameter values will result in a cleanup level of 400 ppm. For this reason, 400 ppm

is used as a cleanup level prior to measuring the site-specific model inputs.

The difference between CERCLA and TSCA comes in the definitions of ‘‘play area’’

and ‘‘the rest of the yard’’. Superfund uses the entire residential yard as the ‘‘play

area’’ while ‘‘the rest of the yard’’ under TSCA may be interpreted more narrowly.

Question 11. At the Omaha Lead Site, has EPA collected any lead-based paint

samples to assess the potential for recontamination? How much money has been

spent removing yard soils without evaluation of recontamination from exterior-lead

based paint?

Response. To date, EPA has performed more than 400 exterior lead-based paint

assessments in Omaha and expects paint stabilization actions to begin later this

year. Deteriorating exterior lead-based paint and contaminated interior dust will be

addressed at all remediated properties before completion of the cleanup. Prior to the

2004 ROD, EPA had expended approximately $35 million evaluating and responding

to the risk at the Omaha Lead Site, most of which was directed to soil cleanups.

Following the 2004 ROD, EPA has expended approximately $15 million directed to

soil cleanups.

RESPONSE BY JAMES B. GULLIFORD TO AN ADDITIONAL QUESTION

FROM SENATOR BOND

Question. In 1998, the EPA mistakenly approved a split registration for the Cry9C

protein in StarLink corn, allowing the corn to be used for feed but not for human

food. Since the same corn is manufactured into both feed and food products, that

EPA action resulted in the presence of the unapproved protein in food products and

their subsequent recall. That caused unfounded questions about the safety of foods

with biotech content, and U.S. corn farmers have lost millions of tons of domestic

and export markets.

I understand no health effects of consuming foods with Cry9C protein have been

reported. Yet industry still tests every lot of corn intended for food use, and USDA

and industry have conducted more than 3 million analyses for the presence of

Cry9C in corn with no positive detections in many months.

How will you work to have the testing program for Cry9C protein in corn ended

as quickly as possible in a manner that does not cause disruption to the industry,

and would ensure no Federal enforcement action for food products found to contain

trace amounts of Cry9C protein?

Response. EPA and other Federal agencies continue to work with the industry to

ensure that appropriate testing is conducted and are discussing strategies to change

the current testing protocol. EPA will be working with StarLink Logistics, Inc.

(SLLI), the grain industry, food processors, and other Federal agencies to determine

the best path forward that could eliminate testing, while still being protective of

public health.

RESPONSE BY JAMES B. GULLIFORD TO AN ADDITIONAL QUESTION

FROM SENATOR MURKOWSKI

Question. Mr. Gulliford, thank you for being here. I understand your academic

training focused on forestry issues, and that your experience with the State government in Iowa related primarily to surface mining and reclamation issues. Have you

had any significant experience with the regulation of pesticides and toxics? How you

feel your experience has prepared you to take on that role?

Response. For the past four and a half years as Regional Administrator, I have

been responsible for the implementation of all EPA programs and regulations in Region 7 including FIFRA and TSCA. Examples of regional activities or actions include:
80

Pesticides and Agriculture.—The Pesticide Program, in conjunction with many

other partners, has undertaken a number of specific initiatives and provided funding for a variety of projects to achieve real and lasting environmental improvements.

As one example, various funding sources were used to assist farmers in reducing

pesticide runoff, including atrazine, into Smithville Lake in Missouri. This resulted

in significant water quality improvements which contributed to the State of Missouri and EPA removing the lake from the State’s impaired water list.

Pesticide Enforcement.—In conjunction with our State partners, approximately

4,500 pesticide inspections are conducted each year. Depending upon the seriousness of any violations which are identified, the State pesticide agencies and/or EPA

Region 7 follow up and take appropriate enforcement actions. In fiscal year 2005,

EPA Region 7 issued approximately 25 enforcement actions with penalties for the

most serious violations which included the sale of restricted use pesticides to

uncertified applicators and distribution of unregistered, canceled and misbranded

pesticides.

Pesticide Education, Outreach and Compliance Assistance.—In fiscal year 2005,

Region 7 responded to over 500 phone calls and distributed approximately 19,000

pesticide outreach materials to the public, State partners, and the regulated community. Specific outreach initiatives include development of an English/Spanish brochure to inform pesticide workers and handlers about Worker Protection Standards.

This publication has been adopted nationally by other Regions and States. Another

brochure was developed in conjunction with the Prairie Band Potawatomi Nation in

Region 7 to inform pesticide users of the importance of native plants, the impact

pesticides may have on such plants, as well as the role pesticides can play in controlling invasive species.

In addition, we have been actively involved in promoting the use of Integrated

Pest Management practices in schools as a means of reducing the risks of pesticide

exposure to children.

PCBs in Paint.—On former Army ammunition plant sites, the Army had proposed

to burn buildings containing explosives-contaminated structures and equipment,

some of which are also coated with PCB containing paint. Cleanup is complicated

by the presence of explosive residues impregnated in the walls, ceilings and floors.

The traditional disposal method for explosive residue is open burning. However, the

presence of PCBs at very high levels (24,000 ppm) limited open burning as a viable

option. Long term, cost effective solutions are still under investigation, although a

stripping/deconstruction/TSCA landfill solution has been employed at the Iowa

Army Ammunition Plant site.

Lead.—Lead is a priority issue of concern in Region 7. Children in the region have

multiple exposure pathways through lead mining and smelting, and domestic lead

paint. I have made the President’s goal of eliminating childhood lead poisoning by

2010 a high priority for Region 7. We are taking comprehensive action to address

lead issues using CERCLA, TSCA, RCRA and CAA authorities.

Specific to OPPTS, we are supporting State programs through cooperative agreements, working directly with local health departments, and providing educational

outreach at community and professional events. We are currently working with 57

priority city/county/district health departments in the region at high risk for childhood lead poisoning.

Asbestos in Schools.—Region 7 has been working toward the EPA goal of reducing

public exposure to asbestos hazards through education, outreach and timely customer service. We have reached more than 2 million children in Region 7 schools

through our Healthy Schools initiative.

RESPONSES BY JAMES B. GULLIFORD TO ADDITIONAL QUESTIONS

FROM SENATOR JEFFORDS

Question 1. As I mentioned in my opening statement, a number of recent scientific

developments have changed our understanding of the human health risks posed by

industrial chemicals. Studies have found widespread human exposure to untested

chemicals and linked many of these chemicals to cancer and neurodevelopmental

disorders. However, the EPA has required testing of less than 200 of the 62,000

chemicals in commerce since 1979 and regulated only five. EPA’s voluntary programs are helping to generate basic screening level data on many chemicals, but

the vast majority remain unevaluated. If confirmed, what will you do to ensure that

basic health and safety data is developed on all industrial chemicals so we can identify those that may threaten public health?

Response. Since 1998 the Agency’s focus has been on the subset of approximately

3,000 High Production Volume (HPV) chemicals, which are produced and/or im-
81

ported in annual volumes of 1 million pounds or more across all U.S. companies.

The Voluntary Children’s Chemical Evaluation Program (VCCEP) involves data collection and evaluation of chemicals that are of concern based on their potential risk

to children. Additionally, the Existing Chemicals Program’s data development efforts also focus on improving our understanding of the sources and pathways of exposures to PFOA. Data received through these voluntary and regulatory mechanisms will assist EPA in choosing the most effective risk management actions.

Recent regulatory activities have been associated with development of Significant

New Use Rules (SNURs) for perfluorooctyl sulfonate (PFOS) derivatives and two

polybrominated diphenylethers (penta- and octa-PBDE).

Question 2a. There are approximately 2800 chemicals in the voluntary High Production Volume (HPV) Challenge program. In President Bush’s budget proposal for

fiscal year 2007, he states that, under the HPV program, EPA will ‘‘identify chemicals of potential concern that may require additional work, currently anticipated to

involve 5 to 10 percent of screened chemicals.’’ Based on this statement, am I correct

that EPA anticipates that approximately 140 to 280 chemicals of potential concern

are likely to warrant additional review?

Response. EPA has undertaken a screening and assessment effort that will result

in identifying chemicals for further review based on the chemicals’ potential for concern. The review of these HPV chemicals will begin in early fiscal year 2007. The

need for further work on a subset of these chemicals will be determined after the

initial reviews are completed.

Question 2b. The budget also states that EPA plans to ‘‘complete review of 50

chemicals’’ and ‘‘initiate review of 15 more’’. Does this mean that in fiscal year 2007,

EPA will complete review of 50 HPV chemicals and initiate review of 15 additional

HPV chemicals? If so, why isn’t EPA going to initiate review of all chemicals of potential concern?

Response. The numbers cited in this question refer to HPV chemicals sponsored

under the auspices of the Organization of Economic and Cooperative Development

(OECD)/Screening Information and Data Sets (SIDS) and would be in addition to

EPA’s work under the HPV Challenge Program. Again, EPA has begun a screening

and assessment process which will identify those chemicals for further work that

are of the most concern. The purpose of the screening process is to facilitate the

order of review of the data in the Challenge Program submissions and to provide

a structured review process for determining hazard potential for substances. The

key features of the screening process are as follows:

Tier I. Automated Screening: Tier I is an automated process in which key data

are screened against predetermined criteria to establish logical groupings from

which OPPT can select chemicals/categories for further review;

Tier II. Manual Review and Characterization: In Tier II the Agency will conduct

a more in-depth review of the data from the Challenge Program submissions for

quality and completeness; develop a screening level hazard assessment based on

hazard data provided by the sponsors; and inform sponsors and the public of its

findings. Tier II review could potentially include additional or updated hazard information of which EPA and/or sponsors or other parties have become aware.

Question 2c. Given the needs of the chemical review program, does EPA have the

resources it needs to review High Production Volume chemicals of concern?

Response. Enactment of the President’s budget for fiscal year 2007 will provide

EPA with adequate resources for the HPV Challenge Program, enabling the Agency

to maintain its planned pace for reviewing and making basic screening level hazard

data obtained through the program available to the public.

Question 3. EPA recently announced a voluntary nanotechnology stewardship program to assemble basic information about how nanomaterials are being used by industry. If confirmed, will you work to ensure that this program is implemented as

soon as practicable? In addition, if confirmed, will you follow the recommendation

of the EPA Advisory Panel and issue an information gathering order under TSCA

section 8 to provide the Agency with a minimum amount of information from all

companies using nanomaterials and to encourage participation in the stewardship

program?

Response. EPA is moving toward a decision on a possible stewardship program

for nanoscale materials in an open, transparent, inclusive and expeditious process.

EPA is considering the input provided in an overview report prepared by the National Pollution Prevention and Toxics Advisory Committee (NPPTAC) in November

2005 which includes a discussion of the use of TSCA section 8 reporting rules for

nanoscale materials in an evaluation phase of a stewardship program. Scientific

peer consultations for material characterization and management practices will en-
82

gage stakeholders on these key elements of the program this spring. The current

schedule is for EPA to make a decision on implementation in the fall of 2006.

Question 4a. During your tenure as Regional Administrator, EPA Region 7

learned that houses near the St. Louis Airport were being demolished in violation

of the applicable EPA NESHAP asbestos rules. Rather than take enforcement action

to prevent further violations and impose appropriate penalties, Region 7 issued an

Administrative Order on Consent on May 1, 2003 that essentially allowed the demolition of houses to continue with a specific waiver from the asbestos rules. (a) Is this

information accurate?

Response. EPA and the St. Louis Airport Authority (SLAA) entered into an Administrative Order on Consent effective May 1, 2003, resolving issues relating to the

demolition of asbestos-containing structures. Under the Order, the SLAA was allowed to demolish certain residential and commercial structures following work

practices specifically designed to minimize the release of any dust, including potential asbestos fibers, without first removing wall systems or ceilings with asbestoscontaining joint compound and ceilings with asbestos texturing material, so long as

all other regulated asbestos-containing material in the structure was removed prior

to demolition, and the remaining joint compound and ceiling texture material was

thoroughly wetted.

Question 4b. If so, please comment on whether you believe that order was consistent with your obligation to enforce EPA rules and protect human health and the

environment.

Response. When EPA learned in January 2003 that the SLAA had been demolishing homes with small amounts of asbestos in joint compounds and texturing materials still in place, that practice was halted until we could put in place an enforceable agreement with the SLAA that required specific measures designed to be protective of the environment and nearby residents. The resulting Administrative

Order on Consent was consistent with my obligation to enforce EPA rules and protect human health and the environment.

Question 4c. The Region 7 order appears to have been revoked in August 2004

soon after it received attention from the media. Please explain what occurred and

why you took the actions taken.

Response. On March 3, 2004, the Order was extended for an additional 1-year period, but was then rescinded in August 2004, based on Clean Air Act statutory language limiting the duration of compliance orders to 1 year.

Question 4d. Some have suggested that your management of this issue shows a

willingness to let political pressure outweigh protection of human health and compliance with the law. Please respond.

Response. I share your concerns for protecting human health and the environment. I based my decision on what I understood to be the scientific and legal situation at that time. I agree that it is appropriate for decisions to be driven by sound

science.

Question 5. What is the status of EPA’s evaluation of the application to register

the wood treatment chemical Acid Copper Chromate?

Response. The Agency has five pending applications for new wood preservative

products containing acid copper chromate (ACC) from three different registrants. In

2004, a letter was sent to each of these companies, along with the registrant of the

only currently registered ACC product (Osmose Inc.), outlining the data the Agency

needed in order to make a decision regarding the safety of ACC. These data included worker exposure data and studies to determine the potential for exposure to

chromium on treated wood surfaces. This data has only recently been submitted.

The studies are now under review and once the reviews are completed, the Agency

will conduct a risk assessment to determine the level of risks these proposed applications pose to people who might be exposed to ACC (including workers and residential deck owners). Only after the appropriate scientific questions have been addressed will the Agency be in a position to make decisions on the applications, including potential risk mitigation. The registered product has not been produced or

marketed for several years and the company has said they have no intention to do

so at this time.

Question 6. Please explain how this effort is consistent with EPA’s initiative to

phaseout arsenic treated wood.

Response. Chromated copper arsenate (CCA) was voluntarily removed from virtually all uses in the residential market in 2003. It is no longer legal to treat wood

intended for residential use with CCA. Therefore, the Agency has completed the

‘‘phase-out’’ of newly available arsenic-treated wood. Limited industrial uses of CCA

remain (e.g. utility poles, piers etc.).
83

Acid copper chromate (ACC) registrations are being sought by applicants as an

alternative to CCA for general wood preservation. ACC does not contain arsenic, but

chromium.

Question 7. Please also describe the status of EPA’s investigation into recent

claims that the chromium industry failed to disclose all data regarding the health

and safety effects of hexavalent chromium.

Response. The allegations recently made regarding the failure of the chromium

industry to disclose all health and safety data were made in reference to the recently completed reevaluation of the Occupational Safety and Health Administration

(OSHA) safety standards for chromium. We are not aware if OSHA is conducting

any investigations into the allegations.

FIFRA section 6(a)(2) requires companies holding a registration to report adverse

environmental, safety and health information to the EPA if they become aware of

such data. To the best of our knowledge, neither the current nor potential registrants of ACC or CCA generated or were aware of the subject data. If it is determined that a violation of FIFRA section 6(a)(2) may have occurred, we will take appropriate action.

RESPONSES BY JAMES B. GULLIFORD TO ADDITIONAL QUESTIONS

FROM SENATOR LAUTENBERG

Question 1. What are your views on the rights of States to adopt public health

protections stronger than Federal laws?

Response. As a general matter, I support the States’ rights to adopt public health

protections that are stronger than Federal laws, unless inconsistent with Federal

law.

Question 2. A GAO report last year found that EPA ‘‘lacks sufficient data to ensure that potential health and environmental risks of new chemicals are identified.’’

What are your plans for addressing this lack of information regarding the safety of

new chemicals?

Response. I have not been briefed on the findings in the GAO report. I would be

happy to discuss the GAO findings and recommendations as well as the TSCA new

chemicals program at some point in the future. EPA is proud of the progress it has

made in protecting human health and the environment. OPPTS, in its written response to the GAO report, stated, ‘‘the Agency utilizes a variety of tools including

modeling, voluntary and innovative approaches, international coordination, and information gathering and dissemination to ensure that we have the ability to make

informed decisions and that there is transparency for a wide range of stakeholders

and the public.

RESPONSES BY JAMES B. GULLIFORD TO ADDITIONAL QUESTIONS

FROM SENATOR BOXER

INTENTIONAL HUMAN PESTICIDE TESTING

Question 1. Please list and describe any pesticide industry representatives that

EPA or its contractors or agents met or conferred with in 2005 or 2006 to discuss

the testing of pesticides on humans. Please provide me with all documents, including calendar entries, meeting notes, memoranda, e-mails and other documents that

relate to the dates, times, participants, and subject matter of any such meetings or

conference calls. Please provide me with all documents, including calendar entries,

meeting notes, memoranda, e-mails and other documents that EPA or its contractors received from or transmitted to pesticide industry representatives regarding the

testing of pesticides on humans during 2005 or 2006, including copies of any human

studies involving pesticides, any EPA evaluation or review of such studies, and any

suggestions or comments on EPA policy or rules for such studies from the industry.

Response. EPA has conducted a search for documents that are responsive to your

request. Attached are documents identified in that search that are non-privileged

and public. We have withheld documents that are deliberative in nature, subject to

attorney-client privilege, and/or have been claimed to be confidential business information.

Question 2. Please describe the amount of funds, time and other resources, if any,

that EPA or its contractors spent processing, reviewing, evaluating or otherwise

handling studies in which humans were exposed to pesticides after the date of enactment of the 2005 EPA appropriations amendment regarding the testing of pes-
84

ticides on humans. Please provide any records reflecting EPA or its contractors’

work on pesticide human testing issues, or in processing, reviewing, evaluating or

otherwise handling any studies involving pesticide testing or exposure on humans,

since the enactment of the 2005 EPA appropriations amendment regarding the testing of pesticides on humans.

Response. Immediately upon enactment of EPA’s fiscal year 2006 Appropriations

Act (Public Law 109–54), the Agency ceased all types of work that were prohibited

by that law. The law directed EPA, in effect, not to ‘‘accept, consider, or rely on . . .

third-party intentional dosing human toxicity studies for pesticides’’ until EPA

issued a final rulemaking on that issue. Thus, from the date the prohibition took

effect, August 2, 2005, until EPA issued the final rule on January 26, 2006, neither

the Agency’s staff nor its contractors spent resources reviewing, evaluating, or otherwise handling covered studies.

As part of its general management systems, the Agency monitors expenditures of

staff and contractor resources for particular program activities, such as registration

and tolerance reassessment. Nearly all of the effort involved with working on covered human studies has occurred under the tolerance reassessment program, but

such work constitutes only a small portion of the overall resources devoted to this

program. EPA does not maintain records that permit an estimate of the amount of

resources involved in review of any specific human study or, for that matter, any

other particular study. In general, most of EPA’s work on these studies since January 26, 2006 has involved preparations for meetings of the Human Studies Review

Board. As noted earlier, from August 2, 2005 until EPA issued the final rule on January 26, 2006, neither the Agency’s staff nor its contractors spent resources reviewing, evaluating, or otherwise handling covered studies.

Question 3. Please provide me with all documents, including calendar entries,

meeting notes, memoranda, e-mails and other documents that reflect comments or

other input from the Office of Management and Budget or any other component of

the Executive Office of the President during 2005 or 2006 on EPA’s policies, rules,

or actions involving the testing of pesticides or other toxic substances on humans.

Response. In 2005, EPA submitted the proposed rule (NPRM) to OMB on August

1 for review under E.O. 12866. A copy of the submission package is included in the

public docket as part of the E.O. 12866 Review Documentation package, which also

documents changes made during the review period and identifies any that were

made at the recommendation of OMB as required by the E.O.

On August 4, EPA did an introductory briefing for OMB and other E.O. 12866

reviewers. OMB sent out the invitation to the external reviewers.

On August 9, OMB invited EPA to attend an E.O. 12866 meeting with CropLife

America. OMB set-up the meeting with CropLife and has documented the meeting

in the OMB docket (e.g., list of attendees & summary).

On August 10, OMB arranged for EPA to brief the Human Subjects Research Subcommittee (HSRS), Committee on Science, National Science and Technology Council.

Attached is the EPA calendar entry for this meeting, which includes a copy of the

HSRS e-mail and agenda.

On August 23, EPA held a conference call with OMB to discuss revisions to the

NPRM.

On August 29, EPA did a briefing about the revisions to the NPRM for other E.O.

12866 reviewers (mostly HSRS). OMB sent out the invitation to the external reviewers.

On September 2, OMB concluded the E.O. 12866 Review of the NPRM. This is

documented on their Web site, but here is an e-mail that confirmed it for EPA.

In 2006, on January 13, EPA held a conference call with OMB to discuss the status and schedule for the Final Rule (FRM).

On January 18, EPA did a ‘‘heads-up’’ briefing for HSRS members. OMB sent out

the invitation to HSRS.

On January 20, the FRM package went to OMB for review under E.O. 12866. A

copy of the submission package is included in the public docket as part of the E.O.

12866 Review Documentation package, which also documents changes made during

the review period and identifies any that were made at the recommendation of

OMB.

On January 25, EPA had a conference call with OMB to finalize any edits and

OMB concluded review.

The calendar entries referenced above are attached. We have also included calendar entries for Susan Hazen, the Acting Assistant Administrator for OPPTS.

Question 4. Please provide me with all documents, including calendar entries,

meeting notes, memoranda, e-mails and other documents that reflect any meetings

or discussions EPA or its contractors or agents have had with industry representa-
85

tives or scientists working with or for industry involving any reevaluation of the toxicity or carcinogenicity of arsenic compounds in 2005 or 2006.

Response. EPA has conducted a search for documents that are responsive to your

request. Attached are documents identified in that search that are non-privileged

and public. We have withheld documents that are deliberative in nature, subject to

attorney-client privilege, and/or have been claimed to be confidential business information.

Question 5. Please provide me with all documents, including calendar entries,

meeting notes, memoranda, e-mails and other documents that relate to the Office

of Management and Budget’s involvement in EPA risk assessment policies and peer

review policies during the years 2005 and 2006. Please provide a list and description

of any chemicals affected, including by a delay, by OMB’s actions and a description

of the chemical’s current status in EPA’s regulatory process.

Response. EPA has conducted a search for documents that are responsive to your

request. Attached are documents identified in that search that are non-privileged

and public. We have withheld documents that are deliberative in nature, subject to

attorney-client privilege, and/or have been claimed to be confidential business information.

Question 6. Please provide me with all documents, including calendar entries,

meeting notes, memoranda, e-mails and other documents that relate to any comments or input EPA received from the Office of Management and Budget, the Department of Defense, or their agents or contractors, regarding the human health or

environmental risks or toxicity of perchlorate, or EPA policies or standards for

cleaning up perchlorate.

Response. EPA has conducted a search for documents that are responsive to your

request. Attached are documents identified in that search that are non-privileged

and public. We have withheld documents that are deliberative in nature, subject to

attorney-client privilege, and/or have been claimed to be confidential business information.

Question 7. Please list and describe the number of times, if any, that EPA has

met with Syngenta or its representatives or any other person who is not an employee or contractor for the government to discuss atrazine since EPA initiated the

process of developing the Interim Reregistration Eligibility Determination and Reregistration Eligibility Determination for atrazine and triazine herbicides that have

a common mechanism of action?

Response. EPA has conducted a search for documents that are responsive to your

request. Attached are documents identified in that search that are non-privileged

and public. We have withheld documents that are deliberative in nature, subject to

attorney-client privilege, and/or have been claimed to be confidential business information.

Question 8. Please provide me with all documents, including calendar entries,

meeting notes, memoranda, e-mails and other documents that relate to such meetings.

Response. EPA has conducted a search for documents that are responsive to your

request. Attached are documents identified in that search that are non-privileged

and public. We have withheld documents that are deliberative in nature, subject to

attorney-client privilege, and/or have been claimed to be confidential business information.

Question 9. Do you support additional studies be conducted or supported by EPA

similar to the CHEERS study?

Response. EPA Administrator Stephen Johnson canceled the CHEERS study on

April 8, 2005. I support that decision.

It is necessary that the EPA continues to pursue the goal of protecting children’s

health through quality and credible research. A fundamental aspect of scientific

progress is the continual review and reassessment of our research processes that

formulate studies. An Agency Human Studies Review Board (HSRB) has been established to review study protocols to purposely ensure that ethical safeguards are

upheld. I fully intend to use the ethical knowledge of the HSRB and will continue

to be committed to ensure that EPA’s research studies are based on sound science

and the application of highest ethical standards.

Question 10. Do you support non-intentional dosing studies with pesticides on orphans or abused children?

Response. I do not and will not support the use of any pesticide study, internal

or external that involves intentional or non-intentional dosing, which does not meet

the ethical standards as put forth in the Common Rule and the extension of those
86

standards as stated in EPA’s Third Party Rule, which specifically applies to all children and pregnant women. To assure that these ethical safeguards are upheld, EPA

has established a Human Studies Review Board (HSRB) to review study protocols

and studies submitted to the Agency. I fully intend to use the newly formed HSRB

and their guidance in adhering to ethical standards.

SUPERFUND

Question 11. Did you request more funds than you received in connection with the

Omaha lead site in any fiscal year?

Response. The Omaha Lead site is currently among the highest funded Superfund

cleanups in the country. Over the last two fiscal years (2005 and 2006) we have or

will receive all of the funding requested for the project. We have been or will be

obligating in excess of $15M each of these years.

Question 12. Do you believe that 10–15 years was ever an acceptable timeframe

for cleanup given the continuing exposure to young children at the site?

Response. With over 30,000 properties to sample and potentially over 15,000 properties to remediate, the EPA was aware that the time to address all of these properties would be extended. As a result, EPA chose to issue an Interim Record of Decision (ROD) to address the highest risk properties (e.g., properties with soils contaminated with lead concentrations above 800 ppm, properties such as day care facilities used frequently by young children, and properties where a child with an

identified elevated blood lead level reside) over the next 3 years. The remaining

properties at a lower risk level will be addressed in subsequent years, relying in the

interim on health education and lead hazard awareness to reduce risk.

We are currently funding health education and outreach through the Douglas

County Health Department. The Community Advisory Group has been active in delivering lead awareness messages widely across Omaha. The EPA was able to clean

up over 1000 properties in 2005—more than at any other site nationwide since inception of the Superfund program—and plans to complete the same number in 2006,

2007, and 2008.

Question 13. What efforts are underway to conduct enforcement against PRPs at

this site? Could these efforts have been begun sooner? If not, why not?

Response. Enforcement efforts are underway at the site. The EPA has identified

and notified four parties of their potential liability at the site, including ASARCO,

Inc., Union Pacific Railroad Company, Aaron Ferer & Sons, Co., and Gould Electronics, Inc. The EPA is continuing discussions with each of these parties concerning

their liability at the site. The discussions with ASARCO are in response to its filing

of bankruptcy in August 2005. In addition, the EPA is continuing to collect information to determine if other parties may be responsible for site contaminants.

Enforcement efforts at the Omaha Lead site were initiated immediately upon

identifying the need to take response actions at the site. In 1999, the EPA notified

ASARCO of their potential liability at the site and requested that ASARCO perform

response actions at the site to address lead contaminated soils. In 2002, after proposing the site for inclusion on the National Priorities List, the EPA asked each of

the four identified parties to conduct the remedial investigation and feasibility study

(RI/FS). Each of the four parties declined to perform the RI/FS work. After completing the Interim Record of Decision in December 2004, the EPA requested an

offer from the parties to perform the necessary cleanup work. An acceptable offer

was not presented, so EPA proceeded with a fund-lead cleanup to address those

properties posing the highest risk to children.

Question 14. Why were parks and schools not tested at Omaha lead earlier in the

process? How long will this take and how much will it cost? Is it in the current

budget?

Response. The Omaha Public School District (OPS) tested their properties during

the early stages of the project and also performed any remediation work that was

found to be necessary. The OPS coordinated this work with EPA. Most Private

schools were also sampled by EPA early in the site investigation, although earlier

this year EPA identified eight private schools that had not yet been sampled. EPA

has since completed sampling at five of these private schools and is currently arranging for access to sample the remaining three.

The EPA did sample 7 parks early in the site investigation. This sampling did

not find any of these properties to be contaminated above levels of concern. Children

have less potential exposure to contaminated soils in public parks than at private

residences, since contaminated soils at a residence typically get brought into the

house through tracking or pets, and represent a 24-hour exposure source. For this
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reason, EPA has prioritized the sampling and remediation of private residences over

parks.

Site-specific sampling plans are being developed for some of the larger parks

which are hundreds of acres in size. EPA plans to complete the park sampling this

year. There are a total of 65 public parks identified in the focus area at the Omaha

Lead Site.

Funding for completing both the private school sampling and park sampling is included in the current project budget.

Question 15. Could anything be done to accelerate cleanup at the Omaha lead site

including requesting additional funding? Does the pace of cleanup affect the number

of children expected to ingest sufficient levels of lead to exceed 10 μg/dl blood lead

levels?

Response. The current pace of cleanup is at an extremely high level, which may

not be able to be accelerated (even with additional funding) without creating

logistical problems in a residential setting like Omaha. In addressing the highest

risk properties early and generating a high level of awareness in the community

through our actions and health education efforts by local community groups and

health departments, the number of children with elevated blood lead levels has been

reduced. Soil remediation and health education outreach have proven to be very effective in controlling the number of children with elevated blood-lead levels in the

short term. For the long term, soil remediation removes a primary source of lead

exposure providing protection for the children of Omaha.
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STATEMENT OF WILLIAM L. WEHRUM, NOMINATED TO BE AN ASSISTANT ADMINISTRATOR, OFFICE OF AIR AND RADIATION, ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman, Senator Jeffords, Members of the committee, thank you for the opportunity to testify before you today as the nominee for the position of Assistant Administrator of Air and Radiation at the U.S. Environmental Protection Agency. I am

grateful to President Bush for nominating me for this position and I appreciate your

consideration.

I am pleased to see so many friends and colleagues here today. I am especially

pleased to be joined by my wife, my mother, my two sisters, and my nieces and

nephews.

President Bush has provided consistent and clear expectations to Administrator

Johnson and EPA—to accelerate the pace of environmental progress while maintaining our Nation’s economic competitiveness. We have taken this task to heart at my

time at EPA, and I am proud of what we have accomplished.

The air is cleaner today than it has been in generations. EPA programs have resulted in a substantial reduction in air pollution and correspondingly dramatic improvements in air quality. Much of this progress is attributable to the good work

of those who came before us over the last 35 years. But, under the leadership of

President Bush, my predecessor, and the tireless efforts of EPA career staff, we

have made significant progress during my tenure.

Perhaps highest on our list of accomplishments is the Clean Air Interstate Rule.

This standard will reduce emissions from powerplants by millions of tons, help solve

some of the toughest and most persistent air quality problems in the Nation, and

deliver the largest health benefits of any EPA rule in more than a decade. Other

notable rules include the Clean Air Mercury Rule, the Clean Air Visibility Rule, and

the non-road diesel engine rule. These rules will assure continued, significant

progress toward cleaning our air. If confirmed, I promise to buildupon these successes.

Mr. Chairman, I am appreciative of this committee’s efforts to pass Clear Skies

legislation. Similar to the President and Administrator Johnson, I believe enactment

of legislation to reduce and cap emissions of sulfur dioxide, nitrogen oxides, and

mercury for powerplants is a priority and I intend to work to that end. Other nearterm priorities will include the Renewable Fuel Standard, a standard for locomotive

and marine engines, and the reviews of the particulate matter, ozone, and lead national ambient air quality standards.

My priorities also will include the continued growth of our many successful voluntary and public/private partnership programs. Perhaps the best example is the

Energy Star program. Last year alone, Americans with the help of Energy Star prevented the release of 334 million metric tons of greenhouse gas emissions—equivalent to the emissions from 23 million vehicles—and saved about $12 billion on their

utility bills. These programs are particularly noteworthy because they accomplish

significant improvements in human health and the environment, but do so in a collaborative way rather than through our usual regulatory approach.

All of these efforts will be guided by the goal of protecting human health and the

environment, but doing so in the smartest and most efficient way possible.

I believe that I am well qualified for this position. I started my career as a chemical engineer. Most of my time was spent in a specialty chemical plant. I had responsibility for implementing the multitude of health, safety, and environmental

rules that applied to our operations. I became acutely aware of the value of clear

and concise rules, which are particularly important to the operators, engineers, and

maintenance crews directly responsible for the actions needed for day to day compliance. I also experienced first hand the frustration and challenge of decoding complicated rules that sometimes seemed to be written without apparent understanding

of the real consequences for those required to implement them in the field.

This work inspired me to pursue a law degree, which I obtained by attending

classes at night while still working in the plant during the day. I was fortunate to

have the opportunity after graduation to come to Washington to work with two topflight law firms. I learned not only the business of law, but also the complex legal

and policy questions that drive the regulatory process. I worked extensively with

EPA and came to appreciate the dedication and energy that motivates EPA employees and moves our Nation toward continued environmental progress.

I was given the opportunity to join EPA in 2001. I came on board as Counsel to

the Assistant Administrator of Air and Radiation. In that capacity, I had the privilege of advancing some of the greatest environmental issues of our day. I consider

it a rare privilege to now have the opportunity to serve as the Assistant Administrator.
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I will close by saying that I have an avid interest in clean air by both vocation

and avocation. Running is one of my few pastimes that has survived the last several

years of engineering, law school, law practice, and government service. I run well

over 1,000 miles in a typical year. Most of this takes place within inches of major

roadways here in the DC area. I can tell you that this experience has indelibly impressed upon me the need and value of clean air. The occasional smoking truck or

bus and the occasional smoking stack are stark reminders to me of the progress we

have made and the challenges that remain.

Mr. Chairman and members of the committee, I thank you again for the opportunity to be here today. I am happy to answer any questions you have.

RESPONSES BY WILLIAM L. WEHRUM TO ADDITIONAL QUESTIONS

FROM SENATOR INHOFE

Question 1. If a powerplant wants to make energy efficiency improvements or install pollution control devices under the current regulations could these changes

trigger New Source Review?

Response. Under the current regulations, major new source review (NSR) is triggered if there is an emissions increase at the unit and a significant net emission

increase at the stationary source following a physical change or change in the method of operation. It is certainly possible that some energy efficiency improvements

and pollution control device installations at powerplants could trigger major NSR

under the current regulations.

I believe promoting energy efficiency improvements and pollution control device

installation is good environmental policy. For example, where emissions are capped

by other programs under the Clean Air Act, such as is the case with utility SO2

and NOx emissions, efficiency improvements will encourage productive capacity of

existing units without increasing emissions. Flexibility concerning pollution control

device installation is also critical to agency programs. For example, installation of

flue gas desulfurization (scrubbers) and selective catalytic reduction are important

to implementation of the Clean Air Interstate Rule, which will achieve significant

reductions in utility SO2 and NOx emissions and with our other Clean Air programs, bring most of the eastern United States into attainment with the ozone and

fine particulate matter standards.

Our continuing goal is to make further improvements in the NSR program to

maintain the environmental effectiveness of the program yet eliminate some of the

barriers to energy efficiency improvements and pollution control device installations

at industrial sources across the United States.

Question 2. IGCC is a promising technology which is still being improved and refined. However, I am concerned that the Agency is pushing this technology at the

expense of other viable alternatives. Could you explain what role you see the Agency

providing in terms of encouraging all new technologies?

Response. To meet the growing demand for electricity in the United States, the

Administration recognizes that coal must play a significant role well into the future.

To protect public health and the environment, the United States should develop a

cleaner, more efficient means of utilizing coal resources to generate electricity. One

such promising option is Integrated Gasification Combined Cycle (IGCC). EPA has

been actively engaged over the past 18–24 months with the Department of Energy

(DOE) and the Gasification Technologies Council exploring the feasibility of deploying IGCC units in the electric power market.

While IGCC is a promising technology, it is currently not cost-competitive with

competing technologies, such as super-critical pulverized coal. In a memorandum

issued by Steven Page earlier this year, we explain that the NSR program should

not be used to force IGCC to replace pulverized coal technology as a matter of law.

It is my view that IGCC soon will become cost-competitive and may begin to replace

pulverized coal technology, but that this shift should be dictated by market forces.

The President’s goal in introducing the Clear Skies initiative was, in part, to put

in place a cap-and-trade market that sets targets and dates that would advance a

market for clean coal instead of forcing fuel switching to other kinds of generation

fuels. Our Clean Air Interstate Rule and Clean Air Mercury Rule follow the same

goal. In this kind of marketplace, many types of technologies can flourish.

In addition to efforts related to IGCC, EPA has several Clean Energy Programs

that are designed to help energy consumers in all sectors, State policymakers and

energy providers improve their knowledge about Clean Energy technology and policy

options by providing objective information, creating networks between the public

and private sector and providing technical assistance. EPA also offers recognition

to leading organizations that adopt Clean Energy policies and practices.
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Question 3. Did EPA make changes to the proposed PM standard based on recommendations of the CASAC? Was there any information which CASAC lacked in

terms of new studies?

Response. Under the Clean Air Act (CAA), CASAC is charged with reviewing both

the air quality criteria published under CAA section 108 and the national primary

and secondary national ambient air quality standards (NAAQS) promulgated under

CAA section 109, and recommending to the Administrator any new standards and

revisions of existing criteria and standards as may be appropriate under sections

108 and 109. Because of this statutory advisory role, the Administrator always considers the advice of CASAC carefully in formulating decisions regarding the

NAAQS. In the preamble to the proposed PM NAAQS rule, the Administrator explains the extent to which his proposed decisions correspond to the recommendations of CASAC. Where his proposed decision on the PM NAAQS differs from the

committee’s advice, he addresses the rationale for his proposed decision and identifies the points of departure from CASAC’s recommendations, as required by CAA

section 307(d)(3).

Question 4. The scientific basis for a coarse PM standard in any area, urban or

rural, appears to be weak and many scientific studies have been ignored. In addition, the program you have proposed would be nearly impossible to implement.

Could you comment on these studies and the implementation proposal?

Response. While there are a limited number of studies of the health impacts of

exposure to thoracic coarse particles, the Administrator has proposed to conclude

that these studies provide sufficient evidence to support regulating those particles

through an indicator focusing on the ambient mix of particles generally present in

urban environments, while taking comment on other interpretations of these studies. As stated in the proposal preamble in the section outlining the proposed

PM10–2.5 indicator (71 FR 2666–2667):

Ambient concentrations of thoracic coarse particles generally reflect contributions

from local sources, and the limited information available from speciation of thoracic

coarse particles and emissions inventory data indicate that the sources of thoracic

coarse particles in urban areas generally differ from those found in nonurban areas.

As a result, the mix of thoracic coarse particles people are typically exposed to in

urban areas can be expected to differ appreciably from the mix typically found in

non-urban or rural areas. Ambient PM10–2.5 exposure is associated with health effects in studies conducted in urban areas, and the limited available health evidence

more strongly implicates the ambient mix of thoracic coarse particles that is dominated by traffic-related and industrial sources than that from uncontaminated soil

or geologic sources. The limited evidence does not support either the existence or

the lack of causative associations for community exposures to thoracic coarse particles from agricultural or mining industries. . . . Collectively, this evidence suggests that a more narrowly defined indicator for thoracic coarse particles should be

considered that would protect public health against effects that have been linked

with the mix of thoracic coarse particles generally present in urban areas. Such an

indicator would be principally based on particle size, but also reflect a focus on the

mix of thoracic coarse particles that is generally present in urban environments and

the sources that principally generate that mix. . . . This indicator would also be

consistent with an appropriately cautious interpretation of the epidemiologic evidence that does not potentially over-generalize the results of the limited available

studies.

Based on this rationale, the Administrator concluded that it was appropriate to

propose a PM10–2.5 NAAQS despite the limitations and uncertainties in the information available.

EPA is now considering the issues associated with transitioning from current PM

standards to any new standards that may result from EPA’s December 20, 2005 proposal. On February 9, 2006, EPA published an Advance Notice of Proposed Rulemaking (ANPR) on Transition to New or Revised Particulate Matter National Ambient Air Quality Standards (71 FR 6718–6729). As part of this ANPR, EPA is requesting comment on numerous issues associated with implementing the proposed

PM10–2.5 NAAQS. The comment period for the ANPR will close July 10, 2006, and

will be followed by a proposed rule on transition. We welcome public comment on

issues associated with implementing the PM10–2.5 NAAQS throughout this process.

Question 5. I realize the Administrator’s final decision in September will be based

solely on public health considerations. But many Governors, mayors, Members of

Congress and businesses are interested in knowing what might happen if the standard is revised. EPA has projected the number of counties in 2010 and 2015 that it

says would ‘‘record violations’’ if the standard is revised. Is it likely that the number
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of non-attainment counties would be greater than the number of counties that

record a violation?

Response. It is highly likely that the number of nonattainment counties would exceed the number of counties with violating monitors. However, at this time,it is not

possible for EPA to predict which counties would be included in any nonattainment

area designated under revised PM2.5 or PM10–2.5 NAAQS. Designations decisions are

extremely complex, and required the Administrator to weigh multiple factors besides proximity to a violating monitor. In the past, EPA has considered factors such

as MSA boundaries; emissions; air quality; population density and degree of urbanization; traffic and commuting patterns; expected growth (including extent, pattern,

and rate of growth); meteorology (weather/transport patterns); geography/topography (mountain ranges or other air basin boundaries); jurisdictional boundaries

(e.g., counties, air districts, Reservations, etc.); level of control of emission sources.

Factors such as these will be considered in future designation decisions, and would

determine the number and location of counties that would be designated nonattainment.

Question 6. Can or should we have emission limits on substances where there is

no consensus on emission measurement technique, except that no known protocol

is accurate?

Response. It would be difficult to formulate an emission limit for a source category

for which we do not have reliable direct emission measurement techniques or technically sound surrogates for emissions. Where the Agency faces such a circumstance,

I believe the solution is to focus on developing the needed measurement techniques.

We actively work with stakeholders in the public and private sectors to improve

measurement techniques.

Question 7. Please provide your view on EPA setting standards and allowing free

markets to determine how compliance is achieved?

Response. EPA is committed to establishing national ambient air quality standards that protect public health with an adequate margin of safety. Once the standards are set, EPA works in partnership with States, industry, environmental groups

and other stakeholders to find the most cost-effective ways of meeting the nation’s

air quality goals. We have seen evidence from the Acid Rain program and other examples that utilizing free market approaches, such as cap and trade programs, can

help the Nation to reach its air quality goals more quickly and cost-effectively than

other approaches. This is why we developed Clear Skies and the related

rulemakings, the Clean Air Interstate Rule (CAIR), which relies on market-based

cap and trade mechanisms to reduce levels of ozone and PM in an effective way

across the eastern United States, and the Clean Air Mercury Rule (CAMR), which

also relies on a nationwide cap-and-trade program.

Question 8. Should environmental standards ever be used to mandate process

technology selection by an industry?

Response. We typically set emission limits on sources, rather than requiring a

particular technology to be put in place. Our goal is to provide maximum flexibility

for industry to meet the limits in the way they see fit.

RESPONSES BY WILLIAM L. WEHRUM TO ADDITIONAL QUESTIONS

FROM SENATOR JEFFORDS

Question 1a. On March 24, 2006, the Democratic members of the Environment

and Public Works Committee wrote to you regarding the inclusion of language in

the proposed Clean Air Mercury rule that was drawn directly from memoranda authored by your former colleagues at Latham and Watkins. This letter and your response are attached. In addition, I wrote to EPA Administrator Michael Leavitt regarding this same issue on March 16, 2004 and received a response on July 2, 2004.

Both of these letters are also attached.

My understanding of the facts is as follows. On September 4, 2003, Claudia

O’Brian of Latham and Watkins transmitted two documents regarding the mercury

rule to EPA career staff via e-mail. The transmittal memo mentions that these documents would be discussed at a meeting between Edison International and Jeffrey

Holmstead the following week. You were invited to this meeting. On September 11,

2003, representatives of Latham and Watkins, on behalf of Edison International,

briefed EPA staff, including Assistant Administrator Jeffrey Holmstead, about these

papers and provided Mr. Holmstead with these documents. Portions of this material

later appeared in the proposed mercury rule.

In your most recent response, you indicated that you received a copy of the

Latham and Watkins memorandum prior to EPA proposal of the mercury rule. You
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also indicated that ‘‘the memorandum was in wide circulation and was placed in the

docket on October 1, 2003.’’ In addition, you stated that ‘‘I contributed to virtually

all aspects of the rule, including the provisions for a trading program.’’ Further, you

indicated that ‘‘the Latham and Watkins language used in the rule came from two

places. Some was provided to us by another agency as a comment during the interagency review process and that comment was placed in the docket for the rulemaking as required. The other language was inserted by EPA.’’ On January 31,

2004, in an article relating to the inclusion of this language in the proposed rule,

Jeffrey Holmstead was quoted in the Washington Post as saying that ‘‘Neither Bill

[Wehrum] nor I had any idea this language came from Latham and Watkins....

Our technical folks who did the subcategorization used it.’’ Mr. Holmstead is also

quoted in that article as saying that ‘‘the law firm’s language was part of the public

record and was passed along to EPA by the White House Budget Office and the Energy Department.’’

Are any of the facts above inaccurate? If your answer is yes, please indicate which

facts are not accurate and detail the specific inaccuracy.

Response. To the best of my knowledge, your assertions above are accurate.

Question 1b. Did you attend or participate in the meeting on September 11, 2003

with Edison International?

Response. I do not recall attending the meeting. At the time, meetings scheduled

for the Assistant Administrator of OAR were often placed on my calendar for informational purposes only; I attended many but not all of these meetings.

Question 1c. When did you first receive a copy of the memorandum or memoranda?

Response. I first received a copy of the memoranda on September 5, 2003.

Question 1d. Did you read it prior to issuance of the proposed rule?

Response. Yes.

Question 1e. Did you have any discussions with Latham and Watkins representatives relating to the mercury rule prior to issuance of the proposed rule?

Response. Yes.

Question 1f. Did any of these discussions relate to mercury trading or to the

Latham and Watkins memoranda or legal theories relating to mercury trading?

Response. Yes.

Question 1g. Is it your contention that the inclusion of mercury trading theories

in the proposed rule was completely unrelated to any communications between

Latham and Watkins and you or Mr. Holmstead?

Response. I believe that the Latham and Watkins memorandum played little or

no role in EPA’s decision to propose mercury trading options.

Question 2a. In your response of April 4, 2006, you indicate that some of the information was provided to EPA as a comment during the interagency review process,

and that comment was placed in the docket for the rulemaking, as required. You

also indicated that you reviewed ‘‘most of the comments received through the interagency review process.’’

In order to avoid any confusion, please provide us with this comment or a link

to the precise location of this comment in the rulemaking docket.

Response. Please find enclosed a copy of the comment as it was received by EPA.

The comment addresses the Agency’s authority under section 112(n) of the Clean

Air Act. The comment may be found in the CAMR rulemaking docket at OAR–2002–

0056–0108, p. 148.

Question 2b. Was the comment, which included the Latham and Watkins language, ever provided to you or Mr. Holmstead prior to issuance of the proposed rule?

Response. Yes, it was provided to me in an e-mail from the Department of Energy.

Question 2c. Did you or Mr. Holmstead review or approve this comment? Did you

indicate in any way to EPA staff that it should be accepted into the rule?

Response. I reviewed the comment but I do not recollect if I directed staff to include the comment in the proposed rule. During the interagency review process for

the proposed rule, I received many of the comments from other agencies, and I in

turn forwarded the comments to others at EPA for their review. Interagency comments were often discussed within EPA and with the other agencies before decisions

were made about whether to accept them.

Question 2d. If your answer is no, or that you do not recall, is it your contention

that this comment was accepted for inclusion into the proposed rule solely on the

initiative of the career staff?

Response. No, it would not have been included in the rule solely on the initiative

of career staff.
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Question 2e. Had you ever indicated, prior to proposal, to the career staff, that

a mercury trading concept would need to be included in the proposed rule?

Response. Yes, the proposed rule included two alternative approaches to controlling mercury from utilities—a MACT standard and an NSPS standard incorporating

a trading program. Discussion of a possible trading approach began in the summer

of 2003, before EPA received the Latham and Watkins memorandum, and was widely discussed both inside and outside the Agency prior to proposal.

Question 2f. Including yourself, Mr. Holmstead and any other political appointees

in the Office of Air and Radiation, how many staff in the Office of Air and Radiation

were involved in the actual drafting of the proposed rule and capable of including

the Latham and Watkins language in the rule?

Response. The proposed rule was primarily drafted by staff of the Office of Air

Quality Planning and Standards’ Combustion Group, with input from other Agency

staff. Senior staff in that group were responsible for making edits to the final draft

of the proposed rule and inserting, following discussion with EPA management and

representatives of other Agency offices, the recommended changes from the Office

of Management and Budget (OMB) and other interagency workgroup members that

were accepted by EPA.

Question 2g. Did these staff all work under your close guidance and supervision?

Response. Staff of two offices within OAR were involved in the drafting the proposed rule, and I worked closely with a subset of that staff and provided them with

guidance. But at the time we were developing the proposed rule, I served as Counsel

to the Assistant Administrator of the Office of Air and Radiation (OAR). In that capacity, I did not supervise any staff.

Question 2h. How many staff were provided with an entire copy of the proposed

rule prior to its issuance?

Response. The final draft of the proposed rule was broadly reviewed by staff in

EPA’s Office of General Counsel (Air and Radiation Law Office), Office of Air Quality Planning and Standards (Emission Standards Division/Combustion Group, Air

Quality Strategies and Standards Division/Innovative Strategies and Economic

Group, Emission Modeling and Monitoring Division/Group), Office of Atmospheric

Programs (Clean Air Markets Division), Office of Water, Office of Research and Development, Office of Policy Analysis and Review, and Office of Policy, Economics and

Innovation. From among these offices, approximately 18–24 staff would have been

asked to review the final package as it moved through the Office of Air and Radiation signature process.

Question 3a. In your response of April 4, 2006 you also indicate that ‘‘other language was inserted by EPA.’’

Who at EPA made the decision to insert this language in the proposed rule? Was

it you or Mr. Holmstead?

Response. Staff at OAQPS included the language in a draft of the proposed rule.

Successive levels of EPA managers, including myself, reviewed and concurred with

the draft proposal that included the language.

Question 3b. Is it your contention that this language was inserted by EPA staff

without your or Mr. Holmstead’s knowledge or approval, whether explicit or tacit?

Response. I reviewed and concurred with the draft proposal prior to its signature

by the Administrator. At the time, I was unaware of the origin of the language.

Question 3c. Did you, prior to the issuance of the proposed rule ever have any discussions with career staff regarding the Latham and Watkins memoranda?

Response. Yes. The language at issue related to subcategorization by coal type.

This concept was a generally recognized alternative that was widely discussed with

stakeholders during the FACA process, within EPA, and with other Federal agencies.

Question 4a. As noted above, in your response of April 4, 2006, you indicated that

‘‘the memorandum was in wide circulation,’’ that you ‘‘received a copy of the memorandum’’ prior to proposal and that you ‘‘contributed to virtually all aspects of the

rule, including the provisions for a trading program.’’ You also indicated that EPA

was briefed regarding the Latham and Watkins memorandum on September 11,

2003. Records indicate that Mr. Holmstead attended that meeting.

In light of these facts in what way was it accurate for Mr. Holmstead to state

that ‘‘Neither Bill [Wehrum] nor I had any idea this language came from Latham

and Watkins’’?

Response. Thousands of pages of documents containing information and analysis

were developed by EPA and stakeholders for the proposed rule. I read many of these

documents, including the Latham and Watkins memorandum. Given the very large
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volume of information involved, I did not recognize the language from the Latham

and Watkins memorandum in the draft of the proposed rule.

Question 4b. In particular, please address the notion that neither you nor Mr.

Holmstead had ‘‘any idea’’ the language came from Latham and Watkins.

Response. Please see my response to question A above.

Question 4c. Was the statement in any way misleading, inaccurate or incomplete

as applied to you? Or is it an accurate statement of the facts?

Response. The answer was not misleading, inaccurate or incomplete as applied to

me.

Question 5. In the March 16, 2004 letter that I sent to EPA regarding the verbatim inclusion of materials from Latham and Watkins in the proposed mercury

rule, I asked for the following information regarding the ‘‘borrowed language.’’

‘‘—The Agency and the person that provided it to EPA through the interagency

process.’’

‘‘—A detailed description of the route that it followed at EPA, including identification of the person and office receiving it to the person and office that decided to include it in the proposed rule package.’’

Please provide the description requested in the format described above.

Response. The language received through the interagency process was provided in

an e-mail from Darlene Downing of the Department of Energy.

The e-mail from Ms. Downing was addressed to me. I forwarded the e-mail to

OAQPS staff, who participated in intra- and interagency discussions regarding the

language and who ultimately inserted the language into the draft rule. Successive

levels of EPA managers, including myself, reviewed and concurred with the draft

proposal that included the language.

Question 6a. Regarding the proposed mercury rule, the EPA Inspector General

concluded that ‘‘senior EPA management instructed EPA staff to develop a [MACT]

standard for mercury that would result in national emissions of 34 tons annually.’’

In your response, dated April 4, 2004, you indicated that the agency did conduct

‘‘modeling analyses of mercury caps of less than 34 tons per year nationwide.’’ According to the Inspector General report, the initial IPM run attempting to reach the

34 ton target resulted in emissions of 29 tons. A second model run resulted in national emissions of 27 tons. These runs were not included in the rulemaking docket

according to the Inspector General.

Please provide us with the 29 and 27 ton runs and all related information, including e-mails between EPA staff regarding these analyses or regarding other levels

that were considered as these analyses were being developed.

Response. EPA has considered the 29 and 27 ton runs and related information

to be protected by the deliberative process privilege. EPA has defended its assertion

of the privilege with respect to those runs in a case brought by the Commonwealth

of Massachusetts (Reilly v. EPA) in Federal district court in Boston. We are aware

that the magistrate judge in the case recently ruled against the Agency, but we are

currently considering whether to appeal his decision and believe it would be inappropriate to release the runs in the interim.

Question 6b. Did you or Mr. Holmstead instruct staff to develop a MACT standard

for mercury that would result in national emissions of 34 tons annually. Please answer yes or no before providing further elaboration.

Response. No, I did not decide that any particular analysis should be developed.

Such decisions were not mine to make. I did, however, advise that very careful attention should be given to the capability of the power sector to achieve mercury

emission reductions within the 3- or 4-year compliance period for MACT standards.

EPA compiled extensive information about utility mercury emissions and control

techniques in the process of developing the MACT standards and the Administration’s Clear Skies initiative. That information led us to conclude that while mercury

reductions could be achieved in the power sector within the MACT compliance period, for the most part those reductions would not come from mercury-specific controls such as activated carbon injection. Consequently, we based the proposed MACT

on air pollution controls designed to remove SO2 or NOx. In particular, as part of

the Clear Skies effort, EPA had extensively studied the capacity of the power sector

to install SO2 and NOx controls during the period up to 2010. That work showed

that 34 tons per year was the lowest level of mercury emissions that we could reasonably expect the power sector to achieve through the aggressive application of SO2

and NOx controls up to 2010.

Question 6c. While EPA was developing the proposed MACT standard for mercury

emissions from powerplants, did EPA staff suggest to EPA senior management that
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analysis should be done for any other possible MACT standards other than the

standards described in the Inspector General’s report?

Response. In developing the proposed rule, there were numerous discussions between EPA staff and senior management where alternative approaches, including

standards in addition to those described in the IG’s report, were outlined and debated. The content of those deliberations are privileged. In developing the proposed

approach, the ultimate decision about which standards to explore and propose was

guided primarily by the available time (i.e., remaining time before the court deadline) and resources. Additionally, there were also numerous discussions in the FACA

working group regarding alternative analyses; but again, the ability of EPA to explore some of these options was limited by time and resources.

Question 6d. If the answer to the (c) is yes and other analyses were done, please

provide the standards that were analyzed and the results of those analyses.

Response. Discussions between EPA staff and senior management regarding possible alternative approaches are privileged. Due to the time and resource constraints

mentioned above, we were unable to conduct analyses for all of the approaches discussed within EPA.

Question 6e. If the answer to question (C) is yes and other analyses were not

done, please explain (i) what options were suggested for analysis, and (ii) why you

agreed with the Agency’s decision not to do the suggested analysis if you agreed

with that decision.

Response. Please see my answer to question D above.

Question 7a. In your April 4, 2006 response you also indicate that, with regard

to the low risk exemption included in the plywood rule, ‘‘Please note that OGC did

not issue any memorandum relating to this rule.’’

Please find attached a draft memorandum from Paul Cort, Air and Radiation Law

Office, Office of General Counsel, dated 3/04/02. Were you aware of this document

when you responded on April 4, 2006?

Response. Yes.

Question 7b. Is it your contention that this memorandum does not ‘‘relate’’ to the

low risk exemption in the plywood rule? Or was your answer based solely on the

draft nature of the memorandum?

Response. My answer was based on the facts that the memorandum is a stafflevel draft, does not purport to represent the views of the General Counsel, and does

not specifically address the plywood rule.

Question 7c. Are there any other written analyses, draft or otherwise, provided

to you by the Office of General Counsel relating to the basis for the low risk exemption found in the plywood rule? Please provide any such documents.

Response. The Office of General Counsel (OGC) was involved in the preparation

of the legal analysis set forth in the preamble of the rule. OGC’s legal advice was

integral to our development of the rule. That legal advice is privileged.

Question 7d. Do any of these documents indicate that the exemption approach in

the rule does not raise legal concerns related to consistency with the Clean Air Act?

Response. Legal advice provided by OGC personnel to me or any other Agency official is privileged communication.

Question 7e. Are there any documents that indicate that the opinions expressed

in the draft memorandum are incorrect?

Response. EPA received a number of public comments that expressed views similar to some of the points explored in the draft memorandum. EPA also received numerous comments that are at odds with those views. The comments can be found

in the docket for the rulemaking. Any document prepared by Agency attorneys for

the purpose of giving legal advice is privileged. Any other internal EPA document

conveying or concerning that advice is also privileged.

Question 7f. Was this draft memorandum part of the basis for discussions relating

to the legal risk associated with the low risk exemption approach in the plywood

MACT?

Response. The content of internal discussions related to legal advice provided by

Agency counsel is privileged.

Question 7g. Did the Office of General Counsel ever advise you in any way that

including this approach in the rule would involve significant legal risk or high legal

risk?

Response. Legal advice provided by OGC personnel to me or any other Agency official is privileged communication.

Question 8a. In your April 4, 2006 response, you also refused to provide any documents related to your recusal from matters that you worked on while at Latham
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and Watkins. You indicated that you were not able to provide your recusal memorandum and any related documents because ‘‘it contains information that may be

subject to attorney-client privilege.’’ You stated that you were ‘‘consulting with the

law firm regarding whether any privilege attaches and to what extent.’’ When will

the law firm render such an opinion?

If the memorandum does contain attorney-client privileged information, how did

you avoid breaching or otherwise waiving that privilege when you provided your

recusal memorandum to government ethics officials?

Response. Please find enclosed a copy of the ethics memorandum issued to me on

November 7, 2001, by Kenneth J. Wernick, EPA’s then Alternate Agency Ethics Official. Since the April 4 response, I have determined that the memorandum does not

contain attorney-client privileged information.

Question 8b. Does your recusal memorandum actually describe or relate any attorney-client privileged communications?

Response. Please find enclosed a copy of the ethics memorandum issued to me on

November 7, 2001, by Kenneth J. Wernick, EPA’s then Alternate Agency Ethics Official. Since the April 4 response, I have determined that the memorandum does not

contain attorney-client privileged information.

Question 8c. Is it your view that the mere fact of representation is attorney-client

privileged?

Response. Please find enclosed a copy of the ethics memorandum issued to me on

November 7, 2001, by Kenneth J. Wernick, EPA’s then Alternate Agency Ethics Official. Since the April 4 response, I have determined that the memorandum does not

contain attorney-client privileged information.

Question 8d. Do you or the law firm of Latham and Watkins claim that providing

the recusal memorandum, or otherwise indicating the matters that you worked on,

and the clients that you represented, constitutes, in and of itself, a violation of attorney-client privilege? Please provide any legal authority in support of such a position.

Response. Please find enclosed a copy of the ethics memorandum issued to me on

November 7, 2001, by Kenneth J. Wernick, EPA’s then Alternate Agency Ethics Official. Since the April 4 response, I have determined that the memorandum does not

contain attorney-client privileged information.

Question 8e. Does the Office of General Counsel agree with your position that you

cannot provide the memorandum due to concerns related to attorney-client privilege?

Response. Please find enclosed a copy of the ethics memorandum issued to me on

November 7, 2001, by Kenneth J. Wernick, EPA’s then Alternate Agency Ethics Official. Since the April 4 response, I have determined that the memorandum does not

contain attorney-client privileged information.

Question 8f. According to the attached Energy and Environment Daily article published on February 13, 2004, your predecessor, Jeff Holmstead said that ‘‘both he

and Wehrum have recused themselves from all matters associated with their previous employer.’’ Was this statement completely accurate?

Response. As set forth in the ethics memorandum referenced above, I was barred

for 1 year starting September 29, 2001, from participating in the particular matters

listed in Attachment A of the memorandum and from taking official action on any

particular matter in which my former clients, listed in Attachment B, were or represented a party to the matter. The ethics memorandum also addressed the general

rulemakings on which I had represented various clients. In the memorandum, Mr.

Wernick determined that my participation in most of the rulemakings listed in Attachment C would not create an appearance of a conflict of interest. With respect

to the ethylene MACT rule and the semiconductor MACT rule, he concluded that

it would be prudent for me not to handle these matters during my first year at EPA.

Subsequent to that time, there was no bar to my participating as an EPA official

in these rulemakings.

Question 8g. Did you recuse yourself from all matters associated with your previous law firm in your recusal memorandum or at any time prior to September

2002? If you claim that answering this question is attorney-client privileged, please

provide applicable legal authority in support of your contention that answering this

question violates attorney-client privilege.

Response. In accordance with the ethics memorandum referenced above, I refrained for 1 year starting September 29, 2001, from participating in the particular

matters identified by the memorandum and from taking official action with respect

to any particular matter involving the entities listed in the memorandum. I also did

not participate in the ethylene and semiconductor MACT rules in my first year at

EPA.
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Question 8h. Did you recuse yourself from all matters associated with your previous employer at any time after February 13, 2004?

Response. As indicated by the ethics memorandum referenced above, the limitations on my participation in the matters identified in the memorandum expired on

September 29, 2002.

Question 8i. Have you, at any time after your arrival at the agency, worked on

any matters associated with your previous law firm? Please list these matters.

Response. Consistent with the determinations set forth in the ethics memorandum issued to me, I have worked at EPA on Clean Air Act rulemakings to reform the New Source Review program, establish MACT standards for industrial

boilers and wood products, develop a NESHAP for miscellaneous organics, and issue

guidance related to BART.

Question 8j. Have any former EPA Assistant Administrators or EPA General

Counsels asserted that their recusal memorandum is attorney-client privileged?

Please provide any recusal memoranda prepared by former EPA General Counsels

since 1994, unless the Office of General Counsel indicates that such memorandum

are attorney-client privileged.

Response. I am not aware that any former EPA Assistant Administrators or EPA

General Counsels have asserted the attorney-client privilege with respect to their

recusal memoranda. I would be happy to discuss with you any need you may have

for the recusal memoranda of these former officials.

Question 8k. Please provide your recusal memorandum and any related documents. If you feel it necessary, please provide a redacted version that does not reveal any attorney-client privileged information.

Response. I have enclosed the ethics memorandum issued to me by EPA’s then

Alternate Agency Ethics Official.

Question 8l. Please indicate whether, on arrival at EPA, you recused yourself from

any matters, including New Source Review related matters, that you worked on

while at Latham and Watkins.

Response. I acted in accordance with the ethics memorandum, which clearly describes the limitations on my work at EPA based on my prior representation of clients.

Question 9. At your hearing on April 5, 2006, I asked you some questions relating

to a draft proposed air toxics rule that was reported on in the New York Times and

Washington Post on April 4, 2006. In particular, I asked you whether this proposal

will ‘‘require additional reductions in toxic air pollutants beyond current rules or

will it allow additional emissions of toxic air pollutants when compared to current

rules?’’ Please answer this specific question.

Response. We are in the early stages of revisiting and re-evaluating the Once In,

Always In policy. Any changes to the policy will go through the formal rulemaking

process and we will ask for public review and comment.

The draft proposal was not written to ‘‘require’’ additional reductions in toxic air

pollutants from any source. The draft would have allowed sources to achieve additional reductions in toxic air pollutants to achieve emission levels of area sources.

Sources opting to reduce emissions to area source levels, however, would have to

take effectively enforceable limitations on their potential to emit. The draft proposal

would have provided the industry an incentive to voluntarily reduce toxic emissions

below major source thresholds. Such emission reductions would clearly benefit the

environment.

In addition, the draft would allow some sources currently emitting air toxics below

‘‘area source’’ levels to establish permit limitations at levels that could, but not necessarily, result in some emission increases in the future. I believe there are several

factors, though, that would tend to minimize those increases in many cases. For example, some sources want to be a good corporate citizen and would choose not to

change current emission levels. Other companies would want to avoid the negative

publicity associated with increases in toxic air pollutants. Additionally, at many

sources, emissions reductions are needed for other reasons, such as netting, trading

or meeting criteria pollutant standards, and thus may not be increased for those

reasons. Last, I believe most sources would want to establish ‘‘potential to emit’’

emission limits well below the major source threshold so as not to jeopardize their

area source status.

We have not yet attempted to determine the net effect of any increases and decreases of toxic air emissions that would result from such a rule.

Question 10a. With regard to the draft proposed air toxics rule described in the

Washington Post and New York Times, you indicated at your hearing that ‘‘work

to my recollection began almost 2 years ago when we first began talking about the
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possibility.’’ According to the draft proposal, STAPPA/ALAPCO met with EPA to explore ways to revise the ‘‘Once In, Always In’’ (‘‘OIAI’’) policy to promote pollution

prevention. The draft proposal goes far beyond that, and would allow sources to no

longer be subject to MACT standards regardless of whether they instituted pollution

prevention programs.

Where did the idea originate to expand the change to the OIAI policy beyond

sources with pollution prevention programs, and to allow participation by sources

that increase emissions up to the 10/25 tons threshholds? Was it either your idea

or Mr. Holmstead’s idea?

Response. This policy has been discussed and debated since its inception in 1995,

both internally and externally. Work on the rule began in earnest in 2004.

Question 10b. In your opinion as an attorney and legal expert regarding the Clean

Air Act, is the change contemplated in the proposed rule compelled by the statutory

language of the Act? How?

Response. As we proceed through the rulemaking process, we will seek the advice

of the Office of General Counsel on questions of statutory interpretation. The General Counsel is responsible to developing and issuing legal opinions. We will seek

public comment on all aspects of any proposal.

Question 11. At the April 5, 2006 nominations hearing, I asked you for any more

recent documents related to the draft air toxics proposal. You indicated that you

‘‘would be happy to work with you and to work with your staff in identifying relevant documents and talking about what we may be able to provide.’’ Please provide

these documents. If it is your contention that a privilege applies, please indicate in

writing, to myself and Chairman Inhofe, by way of a separate letter, which privilege

applies and provide a legal analysis of how such a privilege applies to Congress.

Please provide such a letter by close of business on April 15, 2006, so that we may

discuss this issue prior to finalization of your responses to the committee.

Response. Please find enclosed the documents responsive to your request that are

not privileged. My letter to you concerning the privileged documents was submitted

on April 17, 2006.

Question 12. The draft air toxics proposal states that EPA believes companies will

not increase their emissions because of their desire to ‘‘avoid negative publicity and

to maintain their appearance as responsible businesses.’’ Do you think that relying

on a corporate desire to ‘‘avoid negative publicity,’’ instead of enforceable emission

limits is an appropriate strategy for protecting our citizens from dangerous emissions of toxic air pollutants?

Response. As stated earlier, this is a preliminary draft and we are still examining

the issues. I believe the desire to be seen as a good corporate citizen is one factor

most companies consider in making decisions about controlling their emissions.

EPA’s experience with the Toxics Release Inventory (TRI) confirms that demonstrating environmental progress has become a selling point for many companies.

For example, the Boeing Company posts TRI release data on its web site and uses

the information to track the company’s environmental progress. The web site notes

that overall toxic chemical releases have decreased by more than 82 percent since

1991. Concern about potential negative publicity is another factor in companies’ decisionmaking. Additional factors that could lead companies to maintain their current

emission levels are noted in the response to question 9 above.

Question 13. At your nominations hearing on April 5, 2006, I also asked you

whether there was ‘‘a scientific or public health reason’’ for disregarding the advice

of the Clean Air Scientific Advisory Committee regarding lowering the annual

standard for fine particulate matter. In your response, you did not answer this specific question. Please do so.

Response. In formulating his decision regarding the proposed annual standard for

fine particles, the Administrator carefully considered all of the available evidence

and the advice of CASAC. Over the years, CASAC has consistently provided EPA

with sound, well reasoned and thoughtful scientific advice. In developing the proposal for an annual fine particles standard, the Administrator was ‘‘mindful that

considering what standard is requisite to protect public health with an adequate

margin of safety requires policy judgments that neither overstate nor understate the

strength and limitations of the evidence or the appropriate inferences to be drawn

from the evidence’’ (71 FR 2651). It was the Administrator’s judgment, based on all

of the currently available evidence and focusing on the key mortality and morbidity

studies, that proposing a standard set at a level of 15 μg/m3 would be requisite to

protect public health with an adequate margin of safety from serious health effects,

including premature mortality and respiratory morbidity that are likely causally associated with long-term exposure to PM2.5 (71 FR 2651).
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As also discussed in the preamble to the proposal, in proposing this level, the Administrator recognized that the CASAC Panel did not endorse retaining the annual

standard at the current level of 15 μg/m3. The Administrator carefully considered

the reasons CASAC provided for its recommendation for lowering the annual standard. CASAC noted that some cities have relatively high annual PM2.5 concentrations, without much day-to-day variation, and such cities would only rarely exceed

a 24-hour standard even when set at levels below the current 24-hour standard. As

a result, a 24-hour standard would have little effect on long-term mean concentrations of PM2.5 in such cities, and thus would not likely reduce health effects associated with long-term exposure. The Administrator agrees conceptually with CASAC

that any particular 24-hour standard may not result in reductions in the level of

long-term exposure in areas with those kinds of air quality distributions, and further agrees that this supports relying on the annual standard, and not the 24-hour

standard, to achieve the appropriate level of protection from long-term exposures to

PM2.5. However, as stated in the preamble, ‘‘the Administrator does not believe that

this advice necessarily translates into a reason for setting the annual PM2.5 standard at a level below the current level of 15 μg/m3b. . . . The Administrator believes

the principal basis for selecting the appropriate level of an annual standard should

be the evidence provided by the long-term studies, in conjunction with judgments

concerning whether and over what range of concentrations reported associations are

likely causal, and this evidence reasonably supports retaining the current level of

the annual standard’’ (71 FR 2651–2).

Question 14. With regard to trading of mercury, in your view, would it have been

legally acceptable for EPA, taking into account the requirements of the Clean Air

Act, to propose and adopt a facility specific mercury MACT that did not allow trading? Or was a trading regime compelled by your reading of the statute?

Response. After considering the utility unit emissions that would remain following

imposition of the requirements of the Act, EPA determined that it was neither appropriate nor necessary to regulate utility units under section 112 of the Clean Air

Act. Once EPA made that determination, it would not have been legally appropriate

for EPA to issue a MACT standard. The Clean Air Mercury Rule was promulgated

under CAA section 111, which allows, but does not compel, a trading regime.

Question 15. In your testimony on April 5, 2005, you indicated that with regard

to the mercury proposal, ‘‘we hold that as one of the most significant accomplishments of this EPA, our office and this Administration as it relates to Clean Air. It

is the first ever regulation in the world to regulate mercury emissions from coal

fired powerplants and we are quite proud of the progress that we have made and

we are quite proud of reductions that will be achieved through that regulation. It

was a substantial undertaking. The issues were quite complex and we feel like we

did a good job on that rule.’’ Did EPA limit mercury emissions from powerplants

on its own initiative or was EPA obligated to address the mercury issue pursuant

to a settlement agreement?

Response. EPA was acting under authority of the Clean Air Act in deciding to regulate mercury emissions from utilities. Following litigation over the timing of our

action, EPA issued the erroneous December 2000 determination and subsequent

proposed MACT standard for powerplants pursuant to a settlement agreement with

NRDC. However, before the deadline in that agreement for final action, EPA revisited and revised its earlier finding and determined that it was not ‘‘appropriate or

necessary’’ to regulate mercury emissions from electric utility steam generating

units under section 112 of the Act. Thus, EPA was no longer under an obligation

to issue a MACT standard. Nonetheless, in the Clean Air Mercury Rule, EPA chose

to further reduce domestic emissions of mercury from coal-fired powerplants.

Question 16a. On April 3, 2006, EPA released the results of a review of the process for setting National Ambient Air Quality Standards (NAAQS) that you cochaired. The review indicates that you support eliminating the staff paper and replacing it with a ‘‘policy assessment’’ document. In the memo initiating this process,

authored by Deputy Administrator Peacock, he states that ‘‘the Administrator is interested in determining whether those practices reflect the most rigorous, up-to-date

and unbiased scientific standards and methods.’’

What role did you play in drafting the December 15, 2005 memo signed by Deputy

Administrator Peacock? Did you review drafts of this memo prior to its signature?

Response. My participation in the drafting of the December 15, 2005 memo was

limited to providing review comments on one draft of the document. I gave my comments to the Deputy Administrator prior to the memo being issued.

Question 16b. Did the idea for conducting the review originate with you?

Response. No, the idea did not originate with me.
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Question 16c. Did this idea originate with parties outside the Agency?

Response. As far as I am aware, the idea did not originate outside the Agency.

Question 16d. Did you discuss this idea with parties outside the Agency prior to

December 15, 2005?

Response. No, I did not discuss this idea with parties outside the Agency prior

to issuance of the memo.

Question 16e. With regard to the question of whether the NAAQS reflect ‘‘unbiased scientific standards and methods’’, what evidence did EPA have prior to the

initiation of the review of ‘‘bias’’ in scientific standards and methods?

Response. The purpose of this review is to see if the NAAQS review process can

be improved. As summarized in the workgroup report, over the last 25 years, EPA

or CASAC have conducted several reviews of the process. The recent review focused

on the ‘‘timeliness of the NAAQS review process; consideration of the most recent

available science; distinctions between science and policy judgments; and addressing

uncertainties in scientific information.’’ In deciding to conduct this review, we did

not consider bias as one of the key issues in past NAAQS reviews, but are aware

that some outside commenters have raised this as a concern.

Question 16f. Did EPA find any credible evidence during the review that the process suffers from a lack of ‘‘unbiased scientific standards and methods?’’ If so, please

detail this evidence.

Response. As explained in the answer to question E above, we did not consider

bias as a key issue. Therefore, we did not investigate possible bias during our review.

Question 17a. In the memo from you and Assistant Administrator George Gray

dated April 3, 2006, you recommend that the ‘‘Staff Paper’’ should be replaced with

more narrowly focused ‘‘policy assessment document’’ that ‘‘reflect the Agency’s

views, consistent with EPA practice in other rulemakings. This recommendation is

contained only in the memorandum signed by you and Dr. Gray, and is not included

in the Review prepared by the EPA’s NAAQS Process Review Workgroup. As you

know, the Staff Paper, prepared by EPA scientists, has served as the basis for all

previous NAAQS decisions and a key strength of that document has been the lack

of political intrusion into the science based process that produces the Staff Paper.

This is appropriate given that the Clean Air Act requires the National Ambient Air

Quality Standards to be based on the ‘‘latest scientific knowledge’’ and to be based

on air quality ‘‘criteria’’ reviewed by the Clean Air Scientific Advisory Committee.

It requires EPA to establish an independent scientific review committee that is to

‘‘recommend to the Administrator any new national ambient air quality standards

and revisions of existing criteria and standards.’’ This process has worked well since

its inception and NAAQS have repeatedly been upheld by the Courts, including the

Supreme Court. You now recommend that the staff paper be replaced by an previously unheard of ‘‘policy assessment’’ document that will ‘‘reflect the agency’s

views.’’ In the past, the Staff Paper reflected the best scientific judgment of the EPA

and the Administrator used that document to inform her/his views.

How will replacing the Staff Paper with a ‘‘policy assessment’’ document enhance

adherence ‘‘to the highest scientific standards’’ as described in the Peacock memorandum.

Response. The workgroup recommendation for replacing the staff paper as currently constituted with a policy assessment document was contingent on implementing a series of changes to earlier steps in the process, especially an improved

and focused integrated assessment of the scientific information and a separate risk

assessment document. The workgroup recommended that the science assessment

document be a more concise evaluation, integration, and synthesis of the policy relevant science, and include key science judgments that will inform the later policy

assessment document. The recommended reformulation of the science assessment

and risk assessment documents eliminates the need for the staff paper to develop

a duplicative and time consuming assessment of the policy relevant science (as has

been the case historically) or to incorporate a chapter summarizing the risk assessment.

This more narrowly focused policy assessment document would be based on the

science and risk/exposure assessments and would include policy-relevant air quality

analyses. This document could focus on identifying approaches for reaching policy

judgments; considering the adequacy of the current standards and whether alternative standards should be assessed for consideration; and identifying a range of options for alternative standards (in terms of indicators, averaging times, forms, and

ranges of levels) that might be considered by the Administrator in making policy

choices. The workgroup believed this approach would permit a more timely and fo-
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cused review of both the science and policy issues that arise in the NAAQS review

process, helping to ensure consideration of the most recent available science.

The separate question of management involvement is still being debated within

the Agency. I would be happy to report back once these deliberations are complete.

Question 17b. Will the ‘‘agency’s views’’ that are to be ‘‘reflected’’ in the ‘‘policy

assessment’’ document be solely science based? Or will they also reflect political considerations? Will they reflect considerations of cost or implementation of other programs?

Response. While George Gray and I recommended that the policy assessment document incorporate an Agency perspective, we are still in the process of considering

alternative approaches and have made no final decisions on the issue. Nevertheless,

if such an approach were to be adopted, the Agency views would be founded on the

available science. The policy assessment would reflect Agency policy views but

would not reflect cost or other considerations not permitted in making NAAQS decisions.

Question 17c. What document prepared by agency scientists and looking solely at

scientific issues will replace the Staff Paper? Will you commit to allowing the creation of such a document and to relying on its recommendations as the basis for

NAAQS decisions?

Response. The review of the science in the current criteria document as well as

the integrated review of relevant scientific information contained in the staff paper

would both be addressed by the restructured science assessment document. The

workgroup recommended that this be a more concise evaluation, integration, and

synthesis of the most policy-relevant science (with comprehensive annexes with generally descriptive information), and that it include key science judgments that are

integral to the risk/exposure assessments. This science-based document will continue to serve as the foundation for the development and assessment of policy options and will ultimately inform any NAAQS decision.

Question 17d. Please summarize for the record the specific recommendations of

the workgroup that lead you to decide to replace the Staff Paper with a ‘‘policy assessment’’ document. Did the career staff endorse the approach of replacing the

Staff Paper?

Response. The specific recommendations of the workgroup on this matter are summarized in the responses to A) above and are presented in full in section 3.2.4 of

the workgroup report. The career staff on the workgroup, several of whom have

worked on the NAAQS for many years, fully endorsed the recommendation for

transforming the staff paper into a policy assessment document. The Workgroup

took no position on whether that document would reflect staff or Agency views.

Question 17e. With whom did the idea to replace the staff paper with a policy assessment document originate? Career staff? Political staff? Or outside the EPA?

Response. The concept of transforming both the criteria and staff documents into

more focused science assessment, risk assessment, and policy assessment documents

originated with the Agency staff most heavily involved in the NAAQS review process over the years. It reflected the staff’s understanding of the basic functional elements of the NAAQS review process and on the nature of the linkages between the

documents currently prepared as part of the a NAAQS review. The workgroup was

unanimous in recommending this change in approach.

Question 17f. Why do you believe it is better to have CASAC comment on a document that reflects the Agency’s views rather than the current process where CASAC

comments on the Staff Paper?

Response. As noted above, the Agency has not reached any decision with respect

to whether or how to incorporate Agency views into the policy assessment document.

We place great weight on our interactions with CASAC as well as their recommendations regarding the NAAQS, and any changes we ultimately adopt will

preserve the nature of the CASAC role and contribution in the process.

Question 17g. Please provide any documents that you have reviewed that recommend changing the process so that CASAC comments on the Agency’s views rather than the current process where CASAC comments on the Staff Paper.

Response. Other than the final version of the Peacock memorandum, any internal

documents that I reviewed that make the recommendation described above are privileged. Comments from external stakeholders that make the recommendation are

enclosed.

Question 18. A recent court decision found EPA’s Equipment Replacement Rule

to be invalid. In reaching its decision, the court was highly critical of EPA’s legal

rationale for this rule, saying it only made sense in a ‘‘humpty-dumpty’’ world.

Given that this rule was obviously legally risky, what were the public health bene-
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fits sought by that rule and did EPA have a quantitative or empirical analysis showing that the rule would lead to actual emissions reductions in absolute terms?

Response. While the EPA acknowledges that the Equipment Replacement Provision (ERP) could have allowed emissions to increase at a particular facility, EPA

evaluated the emissions impact of the rule on a national level. The national evaluation is more appropriate here, since the ERP would have national application. Based

on review and analysis of emissions models and case studies, both for electric utilities and for six other major industrial sectors, EPA determined that the ERP, as

a whole, would have resulted in equal or better environmental protection than currently provided by the existing regulations, and in a more streamlined and effective

manner. Specifically, EPA concluded that maintaining safe, reliable and efficient operations would have the corresponding environmental benefit of reducing the

amount of pollution generated per unit of product produced.

Question 19. On October 13, 2005 EPA proposed changes to the New Source Review program for electric generating units. Did EPA, prior to proposal, conduct a

quantitative or empirical analysis showing that this proposal would lead to decreases in emissions in absolute terms either nationally, regionally, statewide or on

a facility specific basis? If so please provide this analysis.

Response. We did not include specific quantitative or empirical analysis at proposal. However, as described in the proposal, we are now developing a supplemental

proposal containing quantitative and empirical analyses that will address this issue.

We expect to publish this supplemental proposal in the near future.

Question 20. In reaching the decision to move forward with the Equipment Replacement Rule, were you provided with legal advice indicating that there was a

high legal risk associated with this rule? If so, what motivated your decision to continue pursuing this approach to the law? Would it have been detrimental to public

health if you had simply abandoned this regulatory exemption and used the resources of the agency on other projects? How?

Response. Our internal discussions of the legal merits of a rule or any other official agency action are protected by attorney-client privilege.

Question 21a. As reported in the Los Angeles Times, you were instrumental in

developing a proposal to exempt so called ‘‘low risk’’ sources from certain requirements relating to toxic air pollution under section 112 of the Clean Air Act. The legality of that approach was questioned by the EPA Office of General Counsel. Thousand of tons of air toxics are emitted each year and yet EPA has failed to fulfill

many of its statutory duties under section 112.

What actions have you championed to increase the effectiveness of the air toxics

program in decreasing emissions of cancer causing air pollutants? Please provide

documentation of those efforts.

Response. EPA has invested substantial money and resources to complete our obligation to establish technology-based standards for major source categories, and to

implement residual risk and area source rules and other related rulemakings. These

actions increase the effectiveness of the air toxics program by reducing emissions

of hazardous air pollutants. In addition, President Bush’s 2007 budget includes a

$2 million request to expand our efforts in this area.

Question 21b. Why hasn’t the EPA conducted the periodic review and revision,

where appropriate, of the list of toxic air pollutants which present or may present

a threat of adverse human health effects, as required under section 112(b)(2) of the

Clean Air Act?

Response. Our review and revision of the list of toxic air pollutants is guided by

petitions requesting us to add or delete a substance from the list. To date we have

received eight petitions to remove an individual HAP or component(s) of a HAP

grouping. These are: five of the glycol ethers group (denied); caprolactam (granted);

long chain glycol ethers (granted); ethylene glycol monobutyl ether (granted), methyl

ethyl ketone (granted), and methanol (denied). Petitions to delist methyl isobutyl ketone and methyl diphenyl diisocyanate are pending. We have received one petition

to add the mixture diesel exhaust (pending), and a request to add the compound

hydrogen sulfide (pending).

Question 21c. In your capacity as legal advisor to the previous Assistant Administrator for Air and Radiation, did you ever bring attention to this responsibility and

suggest a course of action to comply with the requirement to review as appropriate?

Response. Our legal obligation is to periodically review the list and revise where

appropriate. As noted above, our review and revision of the list has been guided by

petitions to list or de-list a substance.

Question 21d. Do you have plans to move forward aggressively with the residual

risk program as required under Clean Air Act section 112(f)? What are those plans
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and what is your plan for fulfilling the statutory requirements that EPA promulgate

such standards within 8 years of the time a MACT standard is set for each source

category?

Response. Yes, we are planning to invest substantial Agency resources in implementing the residual risk requirements. To date we have finalized five residual risk

rules and proposed one more. Our plan is to address each of the source categories

in the order the technology-based standards were finalized.

Question 22a. In December 2000, the EPA added utilities as a source category for

mercury and other air toxics under section 112 of the Clean Air Act. Pursuant to

section 112(c)(5), EPA is required to promulgate standards covering each and every

emitting unit within that source category within 2 years after addition of a source

category and compliance is required within approximately 3 years at the most.

The Administration did not comply with the Act’s specific legal requirements in

this case. Why not?

Response. The schedule for this rulemaking was established in the prior Administration through litigation with the Natural Resources Defense Council. EPA was required by settlement agreement to propose regulations for this source category by

December 15, 2003; this date was met by the Agency. The same settlement agreement called for final rules to be in place by December 15, 2004. By consent of the

litigants, this date was extended to March 15, 2005. Once EPA determined that it

was not appropriate or necessary to regulate utility units under section 112, however, EPA no longer had a legal obligation to issue a MACT standard applicable to

those units.

Question 22b. Did you ever provide advice to Mr. Holmstead regarding means by

which the Agency could avoid complying with the requirements of section 112(c)(5)?

Response. No.

Question 23. Assume that each and every coal-fired electric generating unit had

been required by EPA to achieve at least a 34 percent reduction in mercury emissions, which EPA testified in 2002 and 2003 was the approximate co-benefit level

obtained by cost-effective, feasible SOx and NOx reductions, according to the compliance requirements schedule of section 112(c)(5)—meaning full compliance not later

than 2005. Since the Clean Air Mercury Rule does not require any utility to make

reductions in mercury for many years, please provide the exact time in the future

at which each and every coal-fired powerplant in the Nation is likely to achieve a

34 percent reduction in mercury emissions.

Response. It is incorrect to state that the Clean Air Mercury Rule (CAMR) does

not require any utility to make reductions in mercury for many years. In fact, the

rule puts a hard cap of 38 tons on emissions in 2010, requiring about 10 tons of

reductions from the current level of mercury emissions from powerplants. Because

of the incentives provided by the ability of sources to bank SO2 allowances under

the Clean Air Interstate Rule, EPA estimates that mercury emissions will be reduced to about 31 tons by 2010, or approximately a 35 percent reduction from current levels. As is the nature of a cap-and-trade program, not every plant will be reducing emissions by this percentage; however, EPA predicts that many of the largest and most polluting coal-fired powerplants in the United States will be reducing

emissions by far more than 35 percent during the first phase of CAMR. Further,

CAMR will permanently cap mercury emissions at 15 tons at full implementation,

which is about a 70 percent reduction from current levels. Many plants are expected

to achieve far greater than a 70 percent reduction. EPA has not done an analysis

of the policy scenario referenced in the question, and thus we do not know at which

point a 34 percent reduction from every plant would be achieved in that scenario.

However, under CAMR, emissions reductions will be greater and more cost-effective

than the scenario described in the question.

Question 24. Have you, at any point, in your service at EPA engaged in communications with the White House or the OMB that had the effect of avoiding the information collection, public transparency or docketing requirements of section 307(d)

of the Clean Air Act?

Response. Section 307(d)(4)(B)(ii) of the Clean Air Act requires the docketing of

drafts of proposed and final rules submitted by the Administrator to OMB for any

interagency review process, all documents accompanying such drafts, all written

comments thereon by other agencies, and all written responses by the Administrator

to such comments. I believe that we have complied with the letter and spirit of section 307(d)(4)(B)(ii).

Question 25a. During your nominations hearing on April 5, 2005, you were asked

about study of mercury deposition in Steubenville, OH, that shows that about 70

percent of mercury deposition is from local sources, especially local powerplants. You
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testified that ‘‘it squares up pretty closely’’ with the analysis EPA did for the Clean

Air Mercury Rule (CAMR) and that you were ‘‘frankly gratified by that.’’ Your testimony suggests that even before CAMR was finalized, you were aware that, in some

areas, powerplants are a significant source of mercury deposition. This is consistent

with a March 1, 2005 e-mail from Jason Burnett to Elizabeth Stolpe which states

that ‘‘Most of the powerplant deposition is in the Ohio river valley. In some places

of Pennsylvania, for example, powerplant deposition represents more than half of

the current deposition.’’

A review of the primary documents released to the public at the time EPA issued

CAMR provides a different impression. In the main public documents, EPA does not

appear to mention that powerplant mercury emissions may be a significant source

of mercury deposition in some areas. For example, EPA’s Fact Sheet on the Clean

Air Mercury Rule, in a section labeled ‘‘Mercury Emissions—A Global Problem’’

states that EPA’s analyses ‘‘conclude that regional transport of mercury emission

from coal-fired powerplants in the U.S. is responsible for very little of the mercury

in U.S. waters.’’ In the ‘‘Charts and Tables’’ section on the EPA mercury rule web

site, EPA included one chart, ‘‘Mercury Deposition in the U.S.’’ that, when updated,

showed that powerplants contributed 11.1 tons out of the total national mercury

deposition in the United States of 144 tons. Also in the ‘‘Charts and Tables’’ section,

the ‘‘Mercury Emissions Are a Global Problem’’ chart shows that U.S. powerplant

emissions are 1 percent of the global total.

Given that EPA’s modeling done before it finalized CAMR showed significant deposition in Steubenville, OH, and other areas from domestic powerplants, why didn’t

EPA point that out in CAMR documents geared to the press and general public?

Response. EPA believes it is important to communicate that we cannot expect a

quick fix to the global mercury problem because U.S. emissions represent just a few

percent of global man-made mercury emissions. Most of the mercury deposited in

the United States comes from sources outside the United States, and most mercury

exposure in the United States is the result of consumption of fish and shellfish from

the ocean environment. Moreover, nearly 80 percent of the ocean-dwelling fish and

shellfish consumed in the United States are imported. In addition, we have consistently stated, including in congressional testimony, that there are regional differences in mercury deposition estimates for the United States. For example, U.S.

sources represent a greater fraction of the total deposition in parts of the Northeast

because of the direction of the prevailing winds. See www.epa.gov/mercury/control—

emissions/global.htm, www.epa.gov/air/clearskies/pdfs/testimony052605.pdf, and

www.epa.gov/air/clearskies/pdfs/presenttion052605.pdf. This same information is

presented in even more detail in the technical support documents supporting the

Clean Air Mercury Rule. See, for example, www.epa.gov/ttn/atw/utility/aqm—oar–

2002–0056–6130.pdf.

Question 25b. Did EPA have any maps that showed local deposition levels from

powerplants? If so, why weren’t these maps placed in the ‘‘Charts and Tables’’ or

‘‘Basic Information’’ section of the Web site?

Response. The maps that you request were made available on the web link, ‘‘Technical Information,’’ directly below the ‘‘Charts and Tables’’ link upon promulgation

of the final rule. There is always a choice to be made about what level of detail to

provide in summary tables and what level of information to provide in more detailed

technical documents. I was not involved in making those decisions for the Clean Air

Mercury Rule.

Question 25c. Do you believe it is misleading to have provided information on

global and national emissions and national deposition without providing information

in the same places about areas where the deposition from domestic powerplants is

a significantly higher percentage than the national average?

Response. As described above, all of the requested information has been made

available to the public through our web site and through additional outreach since

the promulgation of the final rule. For most Americans, mercury exposure is largely

the result of global emissions, and this is important information for the public to

receive.

Question 25d. Do you plan on updating the ‘‘Basic Information’’ or ‘‘Charts and

Tables’’ section of the CAMR web site to provide information geared to the press

and general public regarding areas of the country, like Steubenville, OH, that have

significant deposition from domestic powerplants?

Response. EPA is always looking for ways of improving our communication of

complex issues to the public. We have taken the opportunity to update the ‘‘Charts

and Tables’’ section to reflect the deposition maps described above, so that information on regional variations in deposition patterns are available in more places on

EPA’s web page.
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Question 26a. Section 112(d)(6) requires EPA to review the technology-based

standards ‘‘every’’ 8 years—in other words even beyond the one-time residual risk

review. This is an assessment of the technology-based decisions made with the original promulgation of the technology-standards. There is no mention of a risk-based

exemption from this review. Yet in the final residual risk rule for coke oven batteries, the preamble states that no further review or revision will be required for

source categories that are below specified risk levels.

Did you play in role in development of that position and the legal interpretation

behind it?

Response. Yes.

Question 26b. What is the basis in the language of the Act for this interpretation?

Response. Your statement that the final residual risk rule for coke ovens provides

that ‘‘no further review or revision will be required for source categories that are

below specified risk levels’’ is an overstatement of the position laid out in the preamble to the coke ovens rule. We stated that the findings that underlie the section

112(f) determination should be a key factor in the section 112(d)(6) determination,

and added that if the section 112(f) analysis was not based on the availability or

cost of controls, then advances in control technologies ‘‘should not justify revising

the MACT standard pursuant to section 112(d)(6);’’ we did not take the position that

no further review would be required. Moreover, in several final residual risk rules

signed on March 31, 2006, and due to be published in the near future, we clearly

state our position that section 112(d)(6) requires that review of the standards every

8 years.

Question 27. The goal of the residual risk program is to ensure that major sources

of hazardous air pollutants (HAPs) are held to emissions levels that are demonstrated to protect public health with an ample margin of safety. The EPA, however, has decided to break major sources into component parts for purposes of setting standards. How will you ensure that at the end of the day, when the risks

posed by each component part is added together, that all major sources will meet

the ample margin of safety requirement?

Response. Section 112(f) of the Clean Air Act instructs EPA to look at the residual

risk that may remain for certain source categories for which EPA has issued a section 112(d) standard. EPA’s residual risk rules have followed this instruction.

Question 28. Section 112(f) of the Clean Air Act directs EPA to assess the risk

to the maximum individual risk, which means EPA will find that one source in the

category that poses the greatest risk, and then use this risk determination to set

standards for the ‘‘category.’’ In other words, the directive of 112(f) is to use the

worst-case source to drive the standards for the category. This was obviously the

protective approach Congress believed appropriate for addressing the national air

toxics problem. It was a reasonable approach given that residual risk is not a recurring requirement. By looking at the worst example within a category, EPA can provide reasonable assurances that everyone will be protected even as things change

over time. Yet EPA seems determined with concepts like the ‘‘Total Facility Low

Risk Demonstration’’ and the ‘‘Generic Residual Risk Rule’’ to undermine this protective approach by letting sources individually assess their own risks and determine whether more stringent standards are necessary for them. How is this consistent with the statutory directive to use the risk to the most exposed individual

to set standards for the entire category?

Response. The ‘‘Total Facility Low Risk Demonstration’’ and ‘‘Generic Residual

Risk Rule’’ concepts are being discussed within the Agency. At this time, it is premature for EPA to comment on what those concepts may entail, or the specifics of

how they comply with section 112(f).

Question 29. Among the emissions often allowed by current technology standards

are period of excess emissions during startup, shutdown and malfunction. Do you

agree that these allowed emissions need to be evaluated to assess potential acute

risk posed during these events?

Response. Sources are required to minimize emissions at all times, including periods of startup, shutdown, and malfunction. To the extent that these emissions can

be appropriately quantified and anticipated, we plan to include them in any assessment of acute risk.
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RESPONSES BY WILLIAM L. WEHRUM TO ADDITIONAL QUESTIONS

FROM SENATOR VOINOVICH

Question 1a. EPA has designated 495 counties across the nation—38 in Ohio—

as in nonattainment for the particulate matter and ozone air quality standards.

How is EPA working with States to provide technical and legal guidance as they

develop implementation plans?

Response. EPA regional office and headquarters offices are working with States

and regional planning organizations on a number of technical and legal issues related to the development of State implementation plans. These issues include guidance and technical assistance on CAIR implementation, emission inventory development and review, air quality data analysis, evaluation of available control measures,

and air quality modeling and assessment. EPA also provided STAPPA/ALAPCO

with grant funds to develop its March 2006 guidance document, ‘‘Controlling Fine

Particulate Matter Under the Clean Air Act: A Menu of Options.’’ In the past, EPA

has also supported STAPPA/ALAPCO in efforts to develop similar documents for

State and local agencies on controlling ozone precursors. More generally, EPA has

issued numerous guidance documents to assist States in developing their air quality

plans, and is sharing technical and analytical tools to help States (see response to

part b. of this question).

Question 1b. What is EPA doing to make sure that States have maximum flexibility and numerous tools at their disposal to address their unique air quality situations?

Response. First, EPA has developed many rules (such as CAIR, the NOx SIP call,

and rules for diesel and gasoline on-road and non-road vehicles and engines) to address key sources of air pollution at the regional and national levels, reducing, in

many cases, the burden on local sources. States will be able to count on reductions

from Federal programs as they develop their own plans for attainment. Second, to

the extent possible, EPA has developed or is developing implementation policies for

‘‘new’’ 8-hour ozone areas and fine particulate matter areas under the more flexible

provisions of subpart 1 of section 172 of the Clean Air Act. Third, EPA has issued

numerous technical guidance documents to assist States in developing their air

quality plans. For example, to make it easier for States to use non-traditional measures in air quality plans, we have issued recent guidance documents on topics such

as how to obtain emission reduction credit for emerging and voluntary measures,

energy efficiency and renewable energy, truck and locomotive idling reductions, and

‘‘bundled’’ groups of measures. Fourth, we are sharing technical and analytical tools

to help States characterize air quality problems and craft solutions. Examples of

guidance documents and tools are listed in an attachment to my November 10 testimony on implementation of the ozone and fine particle standards before the Senate

EPW Subcommittee on Clean Air, Climate and Nuclear Safety.

Question 1c. Ohio Governor Taft sent a letter in February 2006 to the EPA Administrator on the State’s efforts to replace a vehicle emissions testing program in

the Cincinnati and Dayton areas with industrial pollution control programs and

clean fuels (RVP 7.8). The Governor’s letter describes several situations where Ohio

EPA was led to believe that they were proceeding properly. However, it is now unclear whether U.S. EPA will approve of Ohio’s plan. How will the Agency make sure

that this miscommunication does not occur in the future as more States look to U.S.

EPA for guidance?

Response. EPA has been working with the State of Ohio in their efforts to replace

the vehicle I/M programs in Dayton and Cincinnati. The States are given primary

responsibility to design SIPs so that they reflect local needs, and EPA gives significant deference to those air quality planning decisions. In working through this particular process, the EPA has to apply certain Clean Air Act provisions that specifically address adoption of State fuel measures like the low RVP program submitted

by Ohio. We are committed to working with the State in a timely manner to address

the question that these unique provisions raise.

Question 2a. What is the role of the Clean Air Scientific Advisory Committee

(CASAC)? What is the purpose and nature of CASAC’s recommendations to the EPA

Administrator regarding a National Ambient Air Quality Standard (NAAQS)?

Response. Pursuant to the Clean Air Act, the CASAC is an advisory body that

offers advice and recommendations to the Administrator in the process of reviewing

the NAAQS. CASAC generally provides the Administrator both advice on how to interpret the science underlying the NAAQS and recommendations on the interface

between that science and the policy decisions involved in setting or revising a

NAAQS. The Administrator is charged under the CAA with making the final decision on whether and, if so, how to adjust the standard.
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As you note in your letter, the authority of the CASAC derives from section 109(d)

of the Clean Air Act (CAA), which requires the Administrator to appoint ‘‘an independent scientific review committee composed of seven members including at least

one member of the National Academy of Sciences, one physician, and one person

representing State air pollution control agencies.’’ This committee is charged with

reviewing both the air quality criteria published under section 108 of the CAA, and

the national primary and secondary ambient air quality standards promulgated

under section 109 of the CAA, and recommending to the Administrator any new

standards and revisions of existing criteria and standards as may be appropriate

under sections 108 and 109. As described in CASAC’s charter, and consistent with

section 109 of the CAA, the committee’s duties are advisory in nature, and include

several activities beyond review of the criteria and standards. Specifically, the charter states that CASAC will:

a. Review the criteria published under section 108 of the CAA and the national

primary and secondary ambient air quality standards and recommend to the Administrator any new national ambient air quality standards and revisions of existing

criteria and standards as may be appropriate;

b. Advise the Administrator of areas in which additional knowledge is required

to appraise the adequacy and basis of existing, new, or revised national ambient air

quality standards;

c. Describe the research efforts necessary to provide the required information;

d. Advise the Administrator on the relative contribution to air pollution concentrations of natural as well as anthropogenic activity; and

e. Advise the Administrator of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment

and maintenance of such national ambient air quality standards.

Question 2b. How does the EPA Administrator take into consideration the recommendations of CASAC and is the Administrator required to follow them?

Response. Because of CASAC’s statutory advisory role and the expertise that it

brings to the NAAQS reviews, the Administrator carefully considers the committee’s

advice in making decisions about the NAAQS. CASAC’s advice is formed via a deliberative public process in which the accumulated scientific evidence is scrutinized by

the scientific experts on the CASAC panel. Stakeholders also present their comments during a public comment period. Recent NAAQS reviews have involved the

publication of a comprehensive ‘‘criteria document,’’ prepared by EPA’s Office of Research and Development to characterize, assess, and integrate the scientific evidence about the health effects of the pollutant under review, and a ‘‘staff paper,’’

prepared by EPA’s Office of Air Quality Planning and Standards to provide additional policy-relevant information (e.g., quantitative estimates of exposure and risks

to public health) and advice to the Administrator. CASAC reviews drafts of each of

these documents and holds public meetings during which the committee hears comments on the documents from other scientists and stakeholders.

The Clean Air Act grants specific authority to the Administrator to make revisions periodically to the NAAQS. As 109(b) clearly states: ‘‘the Administrator shall

complete a thorough review of the criteria . . . and the NAAQS . . . and shall make

such revisions . . . as may be appropriate in accordance with section 108 . . . and

[109(b)]’’ (emphasis added). CAA section 109(b) provides for the establishment of

‘‘ambient air quality standards the attainment and maintenance of which in the

judgment of the Administrator . . . are requisite to protect the public health’’ (emphasis added). Again, this phrasing clearly and unequivocally establishes that the

ultimate decisions about whether to establish or revise a NAAQS, including decisions about the appropriate form and level of such standard, must be made by the

Administrator. Thus, although the Administrator carefully considers the advice of

CASAC, according to law, the final decision clearly rests in the Administrator’s

hands.

Question 2c. How does the EPA Administrator take into consideration technical,

legal, and other pertinent information from EPA staff and credible experts in making policy judgments?

Response. In addition to the advice received from CASAC, the Administrator may

receive advice about how to interpret the scientific evidence from a variety of stakeholders besides CASAC. This advice may come in the form of written and oral public

comments, meetings with the Administrator and senior EPA staff, and, in the time

period immediately preceding proposal and final promulgation of a NAAQS decision,

comments on the draft rule from other Federal agencies via the interagency review

process. In addition, the Administrator generally requests comment on a range of

alternatives to his proposed decision on the NAAQS reflecting alternative interpretations of the science or alternative policy conclusions. Generally, all parties wishing
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to provide advice are asked to provide their rationale for their interpretations of the

science and policy recommendations and relevant supporting documentation. Thus

throughout the NAAQS process, the Administrator can draw from a variety of

sources with alternative interpretations of the scientific evidence and alternative

policy conclusions.

Question 2d. What considerations and circumstances might cause the EPA Administrator to reach a policy conclusion that differs from CASAC’s recommendations?

Response. The considerations and circumstances under which the Administrator

might reach a policy decision that differs from CASAC’s recommendations will vary

based on the nature of the scientific evidence and the nuances of the policy decision

at hand. Each NAAQS decision rests on myriad pieces of evidence, and only a caseby-case examination of the specific pieces upon which the Administrator chose to

place the most emphasis in any given decision can clarify why that decision might

depart from CASAC’s advice. For example, there may be instances in which the Administrator reaches public health policy judgments about what standards are requisite to protect public health with an adequate margin of safety that may differ

from the policy recommendations made by CASAC. In those instances where his decision on the NAAQS deviates from the committee’s advice, he takes special care

to address the rationale for his decision and to identify the points of departure from

CASAC’s recommendations. As required by CAA section 307(d)(3), the notice of proposed rulemaking for any NAAQS decision must ‘‘summarize and provide reference

to any pertinent findings, recommendations, and comments by the Scientific Review

Committee established under section 109(d). . .and, if the proposal differs in any

important respect from any of these recommendations, an explanation of the reasons

for such differences.’’

Question 3a(i). EPA has proposed to revise the particulate matter NAAQS. EPA’s

Interim Regulatory Impact Analysis (RIA) for the proposed revisions includes a projection of the counties that would contain monitors recording levels in excess of the

proposed revision. When EPA designated nonattainment areas for the current particulate matter standard, the Agency included all counties in the metropolitan statistical area that contained a monitor in violation of the standard.

Assuming that this method would again be used to designate areas, please identify each county that would be listed as in nonattainment according to the RIA estimates and provide a map of the United States with these counties highlighted.

Response. The Interim RIA issued by EPA in January 2006 focused on projections

of which counties would contain violating monitors under revised PM2.5 NAAQS. At

this time, EPA cannot predict which counties would be included in any designated

nonattainment area under the proposed standard combination of 15 μg/m3 annual

and 35 μg/m3 daily. The designation process is complex and requires the Administrator to weigh multiple factors besides proximity to a violating monitor. In the

PM2.5 designations completed in April 2005, EPA utilized the MSA as a presumptive

starting point in determining the boundaries of PM2.5 nonattainment areas. However, we allowed these presumptive boundaries can be modified based on a number

of factors, including conformity with boundaries of designated ozone nonattainment

areas, identification of specific source related violations limited to specific geographic areas, emissions in areas outside the MSA, air quality in areas outside the

MSA, population density and degree of urbanization outside the MSA, traffic and

commuting patterns, expected growth, meteorology, geography/topography, jurisdictional boundaries, and level of control of emission sources.

Thus not all counties within the MSA were necessarily included in the designated

nonattainment area in the designations for the current PM2.5 NAAQS, and in some

instances counties or partial counties outside an MSA were included in the nonattainment area. However, for the purposes of your question, we followed a strict

presumptive definition based on using MSA boundaries for nonattainment area

boundaries. Thus the enclosed list could change significantly based on specific factors evaluated at the time of designation.

Question 3a(ii). Please provide this list and map for the initial designations, 2010,

and 2015.

Response. We have provided the list requested and maps of the counties and maps

requested. The list and maps are based on EPA’s interim RIA, which analyzed projected PM2.5 attainment scenarios. The emissions projections and air quality modeling are being revised for the final PM NAAQS RIA and will result in modifications

to the list and maps provided here.

As noted in the answer above, EPA cannot project which counties will be included

in nonattainment areas under any future standard.

Question 3a(iii). Include the counties that will not have met the current particulate matter and ozone standards at each interval.
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Response. Please see enclosed maps.

Question 3b. Please describe the requirements for any areas that would be designated as in nonattainment under the proposal.

Response. The statutory requirements for areas designated nonattainment are set

forth in CAA section 172(c), and a proposed interpretation of these requirements for

the 1997 NAAQS is presented in our recent PM Implementation proposal. These include requirements for reasonably available control measures, reasonably available

control technology, reasonable further progress, an emissions inventory, new source

review and permits, contingency measures, an attainment demonstration, and other

requirements as specified. More information on this proposal and its provisions is

available at http://www.epa.gov/pmdesignations/regs.htm. Furthermore, if new or

revised PM NAAQS are promulgated, EPA will issue a rule to guide the transition

from the current standards to the revised standards, providing flexibility where appropriate and consistent with statutory obligations. In the ANPR on transition

issues published in the Federal Register on February 9, 2006, EPA requested comment on a number of issues, including: the timing of revocation of the current PM2.5

standards and PM10 standards if the standards are revised; the need for an antibacksliding rule and the necessary contents of such a rule; the effect of any revised

standards on New Source Review requirements; and how the transition would affect

general and transportation conformity programs.

Question 3c. Please describe the incremental requirements for any areas that are

in nonattainment for the current standard and would be designated as in nonattainment for the proposed standard.

Response. All areas that EPA has designated nonattainment for particulate matter, whether already designated under an existing NAAQS or newly designated following a revision to the NAAQS, are obligated to meet the same requirements (described above).

Question 3d. Please describe the sanctions that would be applied to an area that

would not meet the proposed standard by 2015.

Response. The CAA does not provide for any sanctions based on an area’s failure

to attain by the required attainment date. The sanctions provisions of the Act, sections 110(m) and 179(a) and (b), only apply when a State fails to submit a complete

SIP, EPA disapproves a SIP, or EPA finds a State is failing to implement its SIP.

The Act does, however, impose requirements for areas that fail to reach attainment.

According to section 179(c) of the CAA, EPA must determine, no later than 6

months after the applicable attainment date for any nonattainment area, whether

the area has attained the standard by that date. For all areas for which the Administrator publishes a notice of failure to attain, CAA section 179(d) requires that,

within 1 year, each area submit a revised State implementation plan that is consistent with sections 110 and 172 and that contains any other measures that EPA

may require.

It should be noted that 2015 is the earliest possible date that these requirements

would come into play, assuming that no attainment date extension has been granted

for the area in question. According to the timeline estimated by EPA, we expect to

complete designations for any revised PM2.5 NAAQS no later than December 2009,

with an effective date in early 2010. CAA section 172(a)(2) requires States to reach

attainment with the standards as expeditiously as practicable but no later than 5

years after the effective date of designation, with a possible extension of up to 5 additional years based on the severity of nonattainment and the availability and feasibility of pollution control measures. According to the estimated timeline, this would

mean that all States would be required to reach attainment with any revised PM2.5

NAAQS as expeditiously as practicable, but no later than early 2020. Attainment

determinations would be based on data from the immediately preceding three calendar years. If necessary, the State may also apply to the Administrator for up to

two additional 1-year extensions. These can be granted if: (1) the State has complied

with all requirements and commitments pertaining to the area in its SIP; and (2)

in accordance with guidance published by the Administrator, no more than a minimal number of exceedances of the relevant standard have occurred in the area in

the previous year. If granted, these extensions could push attainment dates for particular areas out to 2022 at the very latest. The requirements of sections 179(c) and

(d) would not come into play until after the extended attainment date for any area

receiving such an extension.
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RESPONSES BY WILLIAM L. WEHRUM TO ADDITIONAL QUESTIONS

FROM SENATOR CLINTON

Question 1. In February 2005, the EPA Inspector General issued a report about

the Administration’s mercury rule. The key finding of that report stated that:

‘‘Evidence indicates that EPA senior management instructed EPA staff to develop

a Maximum Achievable Control Technology (MACT) standard for mercury that

would result in national emissions of 34 tons annually, instead of basing the standard on an unbiased determination of what the top performing units were achieving

in practice. The 34-tons-per-year target was based on the amount of mercury reductions expected to be achieved from implementation of nitrogen oxide (NOx) and sulfur dioxide (SO2 ) controls under a separately proposed, but related, air rule. According to EPA officials, 34 tons represents the most realistic and achievable standard

for utilities. However, because the results of the MACT standard were prescribed

and prior estimates were lower than what was proposed, the standard likely understates the average amount of mercury emissions reductions achieved by the top performing 12 percent of utilities, the minimum level for a MACT standard required

by the Clean Air Act.’’

How do you justify directing staff to reach a predetermined 34 ton result, with

dangerous emissions of toxic mercury at issue? Do you continue to stand by that

decision, even if it means that the amount of mercury reductions from the rule will

be less than the minimum level for a MACT standard as required by the Clean Air

Act?

Response. I was not the Assistant Administrator for Air and Radiation at the time

the proposed rule was being developed. I did not decide that any particular analysis

should be developed for the proposal because such decisions were not mine to make.

I did, however, advise that very careful attention should be given to the capability

of the power sector to achieve mercury emission reductions within the 3- or 4-year

compliance period for MACT standards. EPA compiled extensive information about

utility mercury emissions and control techniques in the process of developing the

MACT standards and analyzing the Administration’s Clear Skies initiative. That information led us to conclude that while mercury reductions could be achieved in the

power sector within the MACT compliance period, for the most part those reductions

would not come from mercury-specific controls such as activated carbon injection.

Consequently, we based the proposed MACT on air pollution controls designed to

remove SO2 or NOx. In particular, as part of the Clear Skies effort, EPA had extensively studied the capacity of the power sector to install SO2 and NOx controls during the period up to 2010. That work showed that 34 tons per year was the lowest

level of mercury emissions that we could reasonably expect the power sector to

achieve through the aggressive application of SO2 and NOx controls up to 2010.

Beyond that, I support the regulatory finding that it is neither appropriate nor

necessary to regulate utility units under section 112. That finding was not based

on a comparison of a section 112 MACT standard versus a section 111 standard.

Question 2. To assist in development of the mercury rule, EPA established an advisory committee with members representing a wide variety of interests with different points of view to explore technical issues and see whether there was common

ground. The advisory committee requested analysis of four different alternative sets

of standards for source-specific controls. EPA staff working with the committee set

a date for a committee meeting at which they would present the results and started

preparing to do the studies. The meeting never happened. According to the

LATimes, in early 2003, Mr. Wehrum, you ‘‘told the dozen or so [EPA] staffers that

comparative studies would be postponed indefinitely.’’ In fact, the Advisory Committee was disbanded and those studies never were conducted. Similarly, EPA ignored the recommendations regarding the mercury rule made by the EPA Children’s

Health Protection Advisory Committee.

Why were recommendations of these key advisory panels ignored? Why the ‘‘indefinite’’ postponement? Was the reason you did not allow these analyses to be performed because you were concerned they might call into question the predetermined

34 ton figure?

Response. The FACA working group fulfilled its charter by issuing a final report,

which was presented to the Clean Air Act Advisory Committee (CAAAC) in October

2002. In this report, it was clearly evident that the FACA working group did not

reach consensus; rather the report set out a series of divergent recommendations

supported by the various stakeholders involved in the FACA. These recommendations provided guidance for EPA about how it could proceed in the regulatory development process. Each of these recommendations was considered as EPA developed

the proposed rule.
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We have made it clear from the start of the rulemaking process that the health

effects of greatest concern are possible developmental effects in fetuses and young

children exposed to unsafe levels of methylmercury. Unlike most other rules that

EPA develops, this rulemaking is singularly directed at developing an appropriate

regulatory approach for addressing the potential impacts on children. Evidence of

this can be seen in EPA’s first guiding principle in the development of a final mercury rule which states that the rule will concentrate on the need to protect children

and pregnant women from the health impacts of mercury.

Question 3. In addition to refusing to conduct analyses requested by advisory committees, Congress or others, it is clear that the EPA did not consider all relevant

scientific studies that were available. When finalizing the mercury rule, EPA ignored an EPA-funded study conducted by the Harvard Center for Risk Assessment.

This study showed potentially greater health benefits from reducing mercury. According to press reports, information from the study was shared with EPA the summer before EPA finalized the rule, and EPA officials were briefed on the study about

2 months before the rule was finalized. Although EPA claimed that it had insufficient time to consider the study because it was not officially submitted until February 22 (3 weeks before EPA had to finalize the rule), in other rules, EPA has considered last minute studies when it has been to EPA’s advantage to do so.

Is this any way to conduct public policy and to write scientifically sound rules that

provide the maximum benefit to the public? Is it your contention that there was no

legal way at all that you could consider these studies? Will you at least admit that

the benefits from reductions in mercury are significantly larger than EPA estimated

in its rule?

Response. As is common practice to preserve fairness for all stakeholders, EPA

did not consider any documents submitted after the close of the public comment period for the Notice of Data Availability (NODA) (the comment period had been open

essentially the entirety of 2003 due to the Notice of Proposed Rulemaking and the

Supplemental Notice of Proposed rulemaking; the comment period for the NODA

closed on January 5, 2004). During the entire process, there were several opportunities to comment on the regulatory approach—proposal, supplemental proposal, and

notice of data availability. Over the entire rule development process, the public had

11 months to submit comments before the final comment period closed on January

3, 2005. Thus, the Agency believes ample opportunity was provided to insert information into the rulemaking docket.

EPA was aware of the Harvard study and had been promised the final results in

a timely manner, but the Agency, in fact, did not have permission to use the study

until the 3 weeks prior to signature that you note. Given that the final rules had

already been drafted and were undergoing final interagency review, we could not

adequately consider, and incorporate, the results of the Harvard study.

Well before the rulemaking deadline, EPA requested that the NESCAUM and

Harvard researchers share the report with the Agency. EPA staff were briefed by

one of the report authors in late August 2004 on some of the approaches the report

authors were considering and on January 3, 2005, received a brief summary of

NESCAUM’s forthcoming report. However, the submitted summary comments did

not contain sufficient detail on the report’s final methodology or results for EPA to

rely on the information in the rulemaking. More importantly, EPA’s review of these

preliminary documents led the Agency to determine that the NESCAUM approach

did not raise new issues not previously considered by the Agency that would be material to the rule.

In response to your inquiry, the Administrator asked EPA’s experts to take a close

look at the NESCAUM report. Their review of the full report only reinforces our assessment of the preliminary materials. Having been briefed on the report, I believe

that, had the report been submitted in a timely manner, our analysis of the CAMR

would not have changed in any material way.

The issues raised in the Harvard study are among the issues on which EPA has

granted reconsideration, and we will again address that study and the other comments we received in making our final determination, which we expect to complete

by May 31, 2006.

Question 4. I want to give you an opportunity to indicate that you would take air

pollution policy in a different direction if you were confirmed. In that regard, I want

to ask you about a recently released, EPA-funded study which found that 70 percent

of the mercury in rain collected in Steubenville, OH, is from nearby coal-burning

industrial plants. This stunning finding is very much at odds with the rationale that

EPA consistently provided for proposing a cap-and-trade approach to the mercury

problem. Yet EPA’s response to the press regarding the Steubenville study was that

EPA knew all along that the Midwest stands out as a region where mercury emis-
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sions would be driven up by regional sources. This recent acknowledgment of high

regional impacts from regional sources contrasts sharply with the message EPA sent

when it issued the mercury rule, and confirms that trading is a bad idea. Do you

think that citizens of Steubenville should be subject to such high deposition rates

of toxic mercury? Will you commit to withdrawing the mercury trading proposal in

light of the Steubenville study?

Response. EPA’s air quality modeling in support of its rules estimated that about

half of the mercury deposited in the area around Steubenville comes from U.S. powerplants while up to 70 percent of mercury deposition in areas just east comes from

U.S. powerplants. The Steubenville study cannot be directly compared with the

model results in part because the Steubenville study used a different timeframe for

its analysis. However, the results appear to be generally consistent with our modeling in suggesting that a significant fraction of the mercury deposited in the area

comes from powerplants. As powerplants in the area respond to CAIR and CAMR

by installing emission control equipment, this fraction is expected to be significantly

reduced. Based on the modeling used to develop those rules, EPA estimates that

there will be more than an 80 percent reduction in mercury deposition in Ohio and

about a 90 percent reduction in the neighboring States of Pennsylvania and West

Virginia.

Once the Steubenville study is published and available, its research findings will

be incorporated in the Agency’s ongoing efforts to better understand mercury transport and to control utility emissions.

RESPONSES BY WILLIAM L. WEHRUM TO ADDITIONAL QUESTIONS

FROM SENATOR MURKOWSKI

Question 1. Mr. Wehrum, thank you for being here. There are very few agencies

in the center of more controversies than EPA. A number of those controversies seem

to deal with air quality, and you seem to be right in the middle. We in Alaska may

escape some of the interstate issues, but our municipalities and industries are nonetheless affected by the Agency’s regulations.

Before we get into the larger picture, I want to explore your view about situations

in which no violation is occurring, but one interest feels that another interest should

be more strictly regulated regardless, and has asked the Agency to do so.

How do you feel about that? I’d like to know your view on the role that science

should play, and whether you think it’s appropriate for the Agency to defer a decision if the parties in dispute are working to develop a mutually acceptable solution.

Response. I believe that your question refers to our pending review of the Organic

Liquids Distribution (OLD) maximum available control technology (MACT) standard

and the potential effect this may have on the Alyeska Marine Terminal ballast

water treatment facility. As you note, we are not aware of any violations at this facility. Our action underway in this case is a reconsideration of our prior decision

not to establish a MACT standard for air emissions from wastewater collection and

treatment at OLD facilities. This action was triggered by an administrative petition

submitted to us by the Prince William Sound Regional Citizens Advisory Council

(RCAC) and a lawsuit filed by one of its members challenging our previous decision

and asserting that the Alyeska facility has significant uncontrolled air toxics emissions. In a letter dated April 16, 2004, the Agency agreed to reconsider the decision,

and as a result, the parties agreed to a stay of the litigation pending our administrative review.

In situations where parties have a disagreement, we fully support addressing any

issues through a process of dialog and facilitation, where appropriate. In this case,

we have been working collectively with RCAC and Alyeska, as you suggest, and are

encouraged by their efforts to work out a solution that could possibly resolve

RCAC’s concerns.

Thank you. Let’s get back to the MACT issue. We are all concerned about clean

air, and we certainly don’t want to see our air quality getting worse when we’ve expended so much effort on it. I understand that we’re only talking about a draft, not

a plan the Agency has approved, but I’m looking for plain speaking here—your own

words, without any bureaucratese....

Question 2. Do you think the new rule would increase or decrease toxic emissions

as a nationwide total, on a regional basis, and as a factor for individual operations?

Why do you think so?

Response. We have not yet conducted an analysis that would answer your question. But there is good reason to believe that a rule such as the one included in the

draft proposal would create a strong incentive for certain sources to reduce emissions below current levels. Such a rule would also theoretically allow other sources
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to increase emissions. We will seek to determine what this balance is as we proceed

with the rulemaking. Please see the answer to question 9 from Senator Jeffords if

you would like a more detailed explanation.

Question 3. What would prevent a company from letting itself exceed its limit

temporarily, knowing it would not be penalized for doing so? Why wouldn’t it do

that over and over?

Response. Virtually all sources must take effectively enforceable limits on their

potential to emit to qualify as an area source. Sources are expected to meet these

limits on a continuous basis, which will be documented through appropriate monitoring, recordkeeping, and reporting. Deviations or exceedances of the limits will be

treated as enforceable actions as with any other rule.

Qustion 4. Mr. Wehrum, you are being considered for a very important job—one

that requires you not only to be a technical expert, but to be an effective administrator. You obviously have some dissension in the ranks over this new air quality

issue, at least. How do you propose to go about ensuring that you have the confidence and support of EPA’s regional offices and staffs?

Response. EPA has longstanding procedures for involving the Agency’s regional offices in the development of rules of national significance. Regional staff bring valuable experience, perspectives and ideas to the task of designing effective and efficient regulatory programs. With respect to the draft proposed rule regarding the

once-in-always-in policy, the regions were involved in reviewing drafts of the proposal, as their comments indicate. To the extent any regional office has not had an

adequate opportunity to participate in the rule development process, I will certainly

try to provide it with that opportunity as the process moves forward.

RESPONSES BY WILLIAM L. WEHRUM TO ADDITIONAL QUESTIONS

FROM SENATOR CARPER

Question 1. Toxic Release Inventory.—Late last year, EPA announced that it

would like to reduce the burden to industry of the reporting requirements of the

Toxics Release Inventory. The Toxics Release Inventory requires industries to monitor and annually report their emissions of toxic chemicals. In order to reduce the

burden EPA has proposed to raise the threshold for reporting from 500 lbs. to 5000

lbs. and require companies to report every 2 years instead of annually. I understand

that EPA has merely announced its ‘‘intent’’ to propose these changes. Will you rescind this notice of intent?

Response. The Toxics Release Inventory program is implemented by EPA’s Office

of Environmental Information (OEI). Upon your request, I would be pleased to forward your inquiry to OEI.

Question 2. Clean Air Mercury Rule.—During the hearing you mentioned the merits of the Clean Air Mercury Rule. It is my understanding that a large portion of

the reductions assumed in the Mercury Rule are the result of co-benefits from the

Clean Air Interstate Rule. Please explain how much mercury will be removed from

powerplant emissions as a direct result of the Mercury Rule, and when those reductions will be realized.

Response. EPA examined the incremental impact of the Clean Air Mercury Rule

(CAMR) on top of the Clean Air Interstate Rule (CAIR) during the CAMR rulemaking process. EPA projects that CAMR will result in an annual incremental mercury emissions reduction of 6.7 tons in 2010, 6.5 tons in 2015, and 9.7 tons in 2020.

Cumulatively, over the years 2010 to 2020, EPA estimates that CAMR will provide

about 80 additional tons of mercury emissions reductions relative to CAIR alone.

RESPONSES BY WILLIAM L. WEHRUM TO ADDITIONAL QUESTIONS

FROM SENATOR LIEBERMAN

Question 1. Following the February 8, 2006 oral argument in New York v. EPA,

D.C. Circuit Case No. 03–1380, you told a reporter that you were optimistic and

‘‘confident of success on the merits’’ in the case. Less than 6 weeks later, the panel

issued a unanimous decision vacating the rule and declaring that EPA’s attempted

defense of it would make sense ‘‘[o]nly in a Humpty Dumpty world.’’ How, if at all,

has the court’s unequivocal opinion changed your view of the Equipment Replacement Provision and the EPA legal theory underlying it?

Response. While we are certainly disappointed that the Court vacated the Equipment Replacement Provision (ERP), EPA respects the opinion of the court and we

will act in accordance with their decision unless the decision is reversed. We are
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considering options for how to proceed in light of the decision, and have not ruled

out requesting panel rehearing or rehearing en banc and/or seeking certiorari. We

also plan to continue to work on efforts to improve and streamline the NSR program

in accordance with the Court’s opinion.

Question 2. At a June 10, 2004 American Bar Association Event entitled, ‘‘Update:

Clean Air Act—Satellite Seminar,’’ you stated that, notwithstanding the D.C. Circuit’s stay of EPA’s Equipment Replacement Provision, the Office of Air and Radiation would continue to apply the legal interpretation expressed in that rule, ‘‘about

how we think routine maintenance, repair, and replacement ought to be implemented,’’ to EPA’s preexisting four-factor test for determining whether a given physical activity should be considered ‘‘routine’’ and thus not ‘‘any physical change.’’ In

light of the D.C. Circuit’s recent vacatur of the Equipment Replacement Provision,

and considering the legal interpretation expressed in the panel’s unanimous opinion,

do you commit that, under you, EPA’s air office will no longer implement, in any

way, the legal interpretation expressed in the Equipment Replacement Provision?

Response. EPA respects the opinion of the Court on the Equipment Replacement

Provision and will act in accordance with that decision unless it is reversed.

Question 3. In August 2003, the General Accounting Office found that ‘‘EPA relied

primarily on anecdotal information from industry in concluding that the NSR program, prior to the final rule, discouraged some energy efficiency projects—such as

upgrades to industrial boilers—including some projects that would have reduced air

emissions. . . . [B]ecause EPA relied on anecdotal information rather than a statistically valid sample or industry-wide survey, the Agency’s findings do not necessarily represent NSR’s effect on energy efficiency projects throughout the industries subject to the program.’’ In September 2004, EPA’s own inspector general

found that the Agency’s ‘‘October 2003 NSR rule change has seriously hampered

[Office of Enforcement and Compliance Assurance’s] settlement activities, existing

enforcement cases, and the development of future cases.’’ What, specifically, have

you done to ensure that EPA’s air office will not produce any more regulations that

are based on self-serving, unsubstantiated anecdotes and that cripple EPA’s enforcement of congressional mandates contained in the Clean Air Act?

Response. The Office of Inspector General’s (OIG) September 30, 2004 report

made findings about the Equipment Replacement Provision (ERP), and made several recommendations to address these findings. In comments we submitted to the

OIG, we identified several major flaws in that draft which, if not corrected, would

in our view result in an inaccurate, misleading, incomplete, and superficial report.

While some of our comments were incorporated, we believe the major flaws that we

identified were not satisfactorily addressed. As a result, we believe that the conclusions in the report—that the final rule seriously hampered NSR enforcement and

will nullify the reductions that will result from NSR enforcement activity—are not

justified.

Also, while the OIG Report was narrowly focused to consider the effect of the ERP

on pending enforcement cases, it failed to consider whether the Rule is appropriate

on a cross-industry basis going forward, as did EPA. Moreover, the Report specifically did not compare the merits of CAIR and non-utility programs to the NSR utility enforcement initiative. Thus, the OIG Report’s recommendations do not reflect

a complete weighing of the factors EPA considered in adopting the ERP.

Question 4. Under your watch at the air office, EPA has proposed to allow electric

utility units ‘‘to use the same maximum achievable hourly emissions tests we apply

under NSPS to determine whether a physical change in or change in the method

of operation of. . . results in an emission increase of either NOx or SO2 emissions

under the major NSR program.’’ 70 Fed. Reg. 61081, 61088/2 (Oct. 20, 2005). Do you

acknowledge that such a provision would contravene the D.C. Circuit’s holding that

‘‘Congress intended to apply NSR to changes that increase actual emissions instead

of potential or allowable emissions’’ (New York v. EPA, 413 F.3d 3, 40 (D.C. Cir.

2005))?

Response. The opinion by the U.S. Court of Appeals for the District of Columbia

in New York v. EPA, 413F.3d 3 (D.C. Cir June 24, 2005), held that ‘‘the plain language of the CAA indicates that Congress intended to apply NSR to changes that

increase actual emissions instead of potential or allowable emissions.’’ Id., slip op

at 40. I respect the decision of the Court. Unless the decision is altered or reversed,

I will be sure that our final rule is consistent with that decision.

Question 5. On February 3, 2005, EPA’s inspector general found that ‘‘EPA senior

management instructed EPA staff to develop a Maximum Achievable Control Technology (MACT) standard for mercury that would result in national emissions of 34

tons annually, instead of basing the standard on an unbiased determination of what
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the top performing units were achieving in practice.’’ What, specifically, have you

done to ensure that EPA’s air office will never again short-circuit and suppress internal technical inquiry in furtherance of a scheme to disobey a congressional mandate?

Response. In considering a MACT standard for mercury, it was important for EPA

to pay careful attention to the capability of the power sector to achieve mercury

emission reductions within the 3- or 4-year compliance period for MACT standards.

EPA compiled extensive information about utility mercury emissions and control

techniques in the process of developing MACT standards and analyzing the Administration’s Clear Skies initiative. That information led us to conclude that while

mercury reductions could be achieved in the power sector within the MACT compliance period, for the most part those reductions would not come from mercury-specific controls such as activated carbon injection. Consequently, we based the proposed MACT on air pollution controls designed to remove SO2 or NOx. In particular,

as part of the Clear Skies effort, EPA had extensively studied the capacity of the

power sector to install SO2 and NOx controls during the period up to 2010. That

work showed that 34 tons per year was the lowest level of mercury emissions that

we could reasonably expect the power sector to achieve through the aggressive application of SO2 and NOx controls up to 2010.

Question 6. Do you believe that EPA’s December 13, 2005 letter to E3 Consulting,

in which the Agency interprets the Clean Air Act to exclude integrated gasification

combined cycle technology from the required search for the best available control

technology for a new coal-fueled powerplant, qualifies as a ‘‘regulatory approach[]

that will encourage advancements in environmental technology’’ at coal powerplants

(Report of the National Energy Policy Development Group, Ch. 5, at 15)?

Response. Yes, we believe this approach is consistent with the goal of encouraging

advancements in environmental technologies while maintaining diversity of electricity generation across the country. In particular, this approach encourages improved control technology for plants fueled with pulverized coal.

RESPONSES BY WILLIAM L. WEHRUM TO ADDITIONAL QUESTIONS

FROM SENATOR LAUTENBERG

Question 1. Were you ever advised by your General Counsel’s Office that the

‘‘Equipment Replacement Rule’’ was at odds with the Clean Air Act?

Response. EPA’s Office of General Counsel (OGC) is responsible for providing authoritative legal advice to Agency management, and that Office prepared the legal

analysis on which the Equipment Replacement Rule was based. OGC’s legal advice

was integral to our development of the rule. Information regarding legal advice from

OGC is covered by the attorney-client privilege.

Question 2. Were you advised by the Enforcement Office that the ‘‘Equipment Replacement Rule’’ would undermine the Agency’s existing lawsuits against polluting

powerplants?

Response. It is EPA’s long-standing policy not to comment on enforcement-sensitive aspects of ongoing cases. Advice received from the Office of Enforcement and

Compliance concerning rules being developed by the Agency is privileged.

Question 3. Did you read, or were you aware of, the August 2005 memo from

EPA’s Air Enforcement Division Director warning that the Emissions Increase rule

you proposed in October would ‘‘adversely impact our enforcement cases and is

largely unenforceable as written’’?

Response. I was aware of the August 2005 memo from EPA’s Air Enforcement Division Director, but I did not review the Kushner memorandum prior to release of

the NSR–EGU proposal. The memorandum was reviewed by my staff. The NSR–

EGU proposal reflects the Agency’s determination regarding this matter.

Question 4. If your answer to the previous question is affirmative, why did you

go forward with the rule in the face of that warning from the head of Air Enforcement?

Response. The Office of Enforcement and Compliance Assistance concurred with

the NSR–EGU proposal issued on October 13, 2005, and we proceeded with the proposal since the rule will remove unnecessary regulatory obstacles to achieving significant clean air and public health advancements. The public has had an opportunity to comment on the proposed rule, and we are in the process of developing

a supplemental proposal providing enforceable regulatory language. We will carefully review the comments received in making decisions about the final rule.
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RESPONSES BY WILLIAM L. WEHRUM TO ADDITIONAL QUESTIONS

FROM SENATOR BOXER

PROPOSED NATIONAL AMBIENT AIR QUALITY STANDARDS FOR PARTICULATE MATTER

Question 1. The Environmental Protection Agency must ensure the Clean Air

Act’s National Ambient Air Quality Standards (NAAQS) protect public health using

the best scientific information. On February 3, 2006, I wrote to Administrator Johnson regarding EPA’s proposed NAAQS for Coarse Particulate Matter. As I mentioned then, I have deep reservations about the legality and wisdom of EPA’s proposed approach, which would effectively eliminate the coarse particulate standard

in many rural areas, and which would undermine the overall integrity of these longstanding, health-based air standards.

The Clean Air Scientific Advisory Committee also voiced concern over EPA’s actions and has asked the Agency to reconsider its PM proposal in significant respects.

According to CASAC ‘‘The CASAC neither foresaw nor endorsed a standard that

specifically exempts all agricultural and mining sources, and offers no protection

against episodes of urban-industrial PM10–2.5 in areas of populations less than

100,000.’’

Evidence appears to demonstrate that many of the unscientific changes to the

coarse particulate standard were made by the Office of Management and Budget

(‘‘OMB’’), which struck language that would have provided a protective standard.

The OMB also made edits that emphasize alleged scientific uncertainty in a way

that was not reflected in the draft document that EPA provided to OMB. During

this Administration, OMB’s role in altering scientific conclusions and information

provided by Federal agencies has been highly controversial.

Have you served as a primary or major contact point with OMB in regard to EPA

Clean Air Act rulemakings? If so, please provide a list and description of such

rulemakings.

Response. Yes. I have served as a primary point of contact with OMB in regard

to the following EPA Clean Air Act rulemakings:

(1) The New Source Review (NSR) I Final Rule (published 12/31/02), which reformed the NSR program by establishing or revising provisions for plant wide applicability limits (PALs), pollution control and prevention projects, clean units, and the

emissions calculation test methodology.

(2) The Equipment Replacement Provision (ERP) Proposed Rule (published 12/31/

2002), which proposed changes to the ‘‘routine maintenance, repair and replacement’’ provisions of the NSR regulations.

(3) The ERP Final Rule (published 10/23/2003), which made changes affecting

when routine equipment replacement activities require a detailed permit review.

(4) The Clean Air Mercury Proposed Rule (published 1/30/2004), which proposed

mercury emission reduction requirements for utilities.

Question 2. Have you attended meetings with OMB regarding EPA rules alone or

accompanied only by other political appointees? If so, please provide a list and description of such rules.

Response. Yes. Please find enclosed a list of all rules on which I had any substantive involvement since joining EPA. I do not have a complete recollection of

which of these rules involved meetings with OMB where I attended alone or only

with other EPA political appointees.

Question 3. Please provide me with all documents, including calendar entries,

meeting notes, memoranda, e-mails and other documents that relate to any meeting

with OMB regarding rules in which you served as the primary or major contact

point, including the proposed particulate matter rule.

Response. Please find enclosed the documents responsive to your request that are

not privileged. The documents were obtained by conducting a search with respect

to the four rules listed in my answer to question 1a above. Please note that all responsive calendar entries have been printed and enclosed. For the remaining documents, we have provided an index which lists the docket numbers of responsive materials (in the case of the NSR Final and ERP Final and Proposed Rules), and a

CD containing responsive documents (for the Clean Air Mercury Proposed Rule).

Question 4. Please provide me with all documents that reflect your review, approval or editing of rulemaking documents while at EPA, including handwritten annotations of rules, e-mails, notes, and other documents.

Response. The documents you request are, by nature, deliberative and thus privileged. In my capacity as one of the Administrator’s principal advisors on

rulemakings under the Clean Air Act, I frequently review, approve or edit rulemaking documents drafted by OAR staff for the Administrator’s ultimate approval
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or disapproval. As such, my contributions to the rulemaking process are part of the

Agency’s deliberative process.

Question 5. Did you review some or all of OMB’s comments and indicate to EPA

career staff that you found OMB’s edits and suggestions acceptable?

Response. I review many of the comments that OMB submits on rules as part of

the interagency review process, and I indicate to EPA staff on various occasions

which of those edits are acceptable. Other EPA managers, both career and political,

also perform this role as part of their responsibilities in the rule development process.

Question 6a. Did you review and approve all of OMB’s changes to the coarse particle standard, including those referenced in my previous letter?If not, who did?

And, whoever reviewed and approved such changes, did that person seek approval

from you to approve those changes or did you delegate approval authority to that

person?

Response. I reviewed most but not all of OMB’s recommended changes to the draft

proposed standard for coarse particles. I concurred on the final draft proposal that

was signed by the EPA Administrator.

The interagency review of the coarse particle standard involved EPA staff and

management at virtually every level. Ultimately, I concurred on the final draft proposal that was signed by the Administrator.

Question 6b. What process did you undertake to determine the effect and advisability of these changes?

Response. EPA staff and management involved in the development of the proposal

collaborated extensively in determining which changes were appropriate. Ultimately, the proposal reflects the Administrator’s preliminary judgment regarding

what standards are requisite to protect public health with an adequate margin of

safety.

Question 7. Please provide all documents and comments in your possession relating to the proposed coarse particulate standard, including all documents related to

OMB and any changes suggested or required by OMB.

Response. I have enclosed all non-privileged documents and comments in my possession that are responsive to your request.

Question 8. The OMB’s reported decision to strike the words ‘‘not enriched with

contaminants typical of urban sources’’ in the EPA’s proposed NAAQS for particulate matter means that rural areas will not have the same protection as urban areas

from contaminants that EPA admits are harmful to public health. As you know,

EPA may not consider costs in establishing the NAAQS, but can consider costs as

a factor in determining how entities comply with these standards. Thus, what is the

public health basis for accepting this changes suggested by OMB?

Response. The change in language was intended to help clarify the precise nature

of the indicator for PM10–2.5 that is being proposed by the Agency. As noted in the

preamble to the proposed rule outlining EPA’s decision on the PM NAAQS, the Administrator ‘‘sought to define the indicator in a way that more clearly focuses on

the nature of the mix of thoracic coarse particles intended to be included and the

sources that principally generate that mix’’ (71 FR 2667). The indicator, which is

qualified so as to include any ambient mix of PM10–2.5 that is dominated by resuspended dust from high-density traffic on paved roads and PM generated by industrial sources and construction sources, and to exclude any ambient mix of PM10–2.5

that is dominated by rural windblown dust and soils and PM generated by agricultural and mining sources, ‘‘is not defined by nor limited to any specific geographic

area, but includes the mix of PM10–2.5 in any location that is dominated by these

sources’’ (71 FR 2668). We are taking comment on whether there are other classes

of sources that should be included or excluded from the indicator, and on this general approach to defining the indicator in terms of both particle size and categories

of named sources.

Question 9. Is monitoring the only way to be sure that no coarse particulate matter of concern is present in rural areas? If not, please provide me with a list and

description of other effective means of ensuring such protections for public health.

Response. In general, EPA will rely on ambient concentration and speciation data,

emissions inventory information, and weather data to assess the strength of different sources’ contributions to elevated PM concentrations in any location. As noted

in response to your previous question, EPA’s proposed indicator of coarse particles

is intended to regulate ‘‘any ambient mix of PM10–2.5 that is dominated by resuspended dust from high-density traffic on paved roads and PM generated by industrial sources and construction sources, and to exclude any ambient mix of PM10–2.5
135

that is dominated by rural windblown dust and soils and PM generated by agricultural and mining sources’’ (71 FR 2667–8, emphasis added). Thus, it is quite likely

that some particulate matter of concern will be present in rural areas, just as it is

possible that some windblown dust and soils, or PM generated by agricultural and

mining sources, will be found in urban areas. EPA’s monitoring efforts will focus on

distinguishing when the ambient mix is dominated by one type of particle or the

other. The proposed 5-part suitability test for the siting of required monitors is designed to ensure placement of monitors in locations that are likely to be dominated

by coarse particle matter of concern. We think it is generally unlikely that coarse

particulate matter of concern would dominate the ambient mix in rural areas. However, we have requested comment on alternative approaches to monitor siting that

would examine areas where States may wish to place non-required monitors that

do not meet the proposed 5-part suitability test, but are locations of industrial emissions or high density traffic on paved roads which create the potential for ambient

mixes of coarse particles of the type intended to be included in the indicator.

Question 10. Please provide me with all documents, including but not limited to

memos, briefing papers, e-mails, meeting notes and other records that describes

your participation in the development of the PM proposal.

Response. Enclosed please find the non-privileged documents that describe my

participation in the development of the PM proposal.

EPA’S RULES TO CONTROL MERCURY EMISSIONS FROM POWER PLANTS

Question 11a. Cap and trade program for mercury.—The EPA’s Children’s Health

Protection Advisory Committee wrote four letters to the Agency voicing concerns

and presenting data that a cap and trade program for mercury might create contamination hotspots that endanger public health. The advisory committee members

also met with you personally in September, 2004 to discuss their concerns over

EPA’s proposal to address mercury emissions from powerplants. A recent EPA-funded study found that nearly 70 percent of mercury in rain collected in the Ohio River

Valley comes from nearby coal-fired powerplants. Were you aware of studies showing that mercury from powerplants could be deposited locally prior to EPA’s proposal of its rule to address mercury emissions from powerplants?

Response. During the development of the Clean Air Mercury Rule (CAMR), I was

aware of studies and modeling indicating that some mercury emitted by utilities is

deposited near the source. I was also aware that the relative proportion of mercury

that deposits close to a utility source is highly variable and depends on many factors.

Question 11b. What activities did you participate in related to EPA’s development

of its rule to control mercury emissions from powerplants?

Response. I was extensively involved in many aspects of EPA’s development of the

Clean Air Mercury Rule, not limited to but including reviewing drafts of the proposed and final rules, participation in some Federal Advisory Committee proceedings and involvement in the interagency review process.

Question 11c. Please provide me with all documents, including meeting notes,

memoranda, e-mails, briefing material, and other documents that describe your participation in EPA’s development of a mercury emissions rule for powerplants.

Response. Please find enclosed the documents responsive to your request that are

not privileged. All responsive calendar entries have been printed and enclosed. For

the remaining documents, we have provided a CD containing all non-privileged documents that describe my participation in the development of the mercury emissions

rule for powerplants.

Question 12a. EPA’s decision not to conduct a comprehensive assessment of children’s health in relation to the Agency’s mercury rule.—The New York Times reported that you told EPA staffers at a meeting held in the Spring of 2003 that EPA

would indefinitely postpone doing comparative studies of proposals to reduce mercury emissions from coal-fired powerplants, including studies on public health and

economic effects. The Times quoted one staffer who had served under several administrations as saying, ‘‘ ‘I was floored . . . We pointed out that the studies were required . . .’ ’’

The Agency’s Children Health Protection Advisory Counsel and EPA’s Inspector

General recommended that EPA conduct such a study on children’s health. The EPA

did produce a document that assessed the rule’s benefits to children’s health. However, the Agency failed to put this document out for public comment prior to the

final rule and, moreover, the document is not the comparative study recommended

by EPA’s children health advisors and Inspector General. Did you tell EPA staffers
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that such a comparative analysis would be indefinitely postponed in the Spring of

2003?

Response. I do not recall making that statement, although I did attend and actively participate in a series of meetings held at or about that time regarding analysis related to the Clean Air Mercury Rule (CAMR). In developing the final rule,

the Agency analyzed several policy options and the respective health benefits, including to children, of those options. These policy options included the Clean Air

Interstate Rule (CAIR) alone; the CAMR as finalized with a first phase cap set at

38 tons in 2010 and a second phase cap set at 15 tons in 2018; two options involving

moving up the date of the second phase cap; and a hypothetical bounding case of

zeroing out all mercury emissions from powerplants. These options are detailed in

the final Regulatory Impact Analysis (RIA) and other supporting documents to the

CAMR. EPA did not analyze a particular MACT option for the final rule because

the Agency determined that it was neither appropriate nor necessary to regulate

powerplants under section 112 of the CAA. Our analyses quantify the neurological

health benefits to children as a result of this rule based on reduced inutero exposure

mercury from freshwater, recreationally caught fish. EPA considered all potential

benefits, even those we concluded could not or should be quantified (e.g., effects for

which the weight of the evidence is not as strong as it is for childhood neurological

effects.)

Question 12b. Please provide me with all documents, including meeting notes,

memoranda, e-mails, briefing material, and other documents that describe EPA’s rationale for failing to conduct the requested study on children’s health.

Response. As indicated above, since we believe we conducted an analysis that,

among other things, compared the relative benefits to children of several regulatory

options, we do not have documents responsive to your request.

EPA’S RULES TO WEAKEN EMISSIONS OF HAZARDOUS AIR POLLUTANTS FROM THE WOOD

PRODUCTS INDUSTRY

Question 13a. Questions related to your involvement in EPA’s decision to produce

a risk-based maximum achievable control technology rule for the wood products industry.—The American Forest and Paper Association provided EPA with memoranda proposing a rule that uses estimated risk levels to exempting facilities that

emit formaldehyde, a substance that we know causes cancer, from controls required

by the Clean Air Act’s hazardous air pollution program.

A draft internal EPA enforcement memo dated March 4, 2002 states that a riskbased exemption for such facilities was contrary to Clean Air Act’s language and the

law’s legislative history. The memo concludes by saying, ‘‘EPA would have a difficult

time articulating any rational basis to defend such a risk-based . . . scheme.’’ However, in February 2004, EPA issued a risk-based rule that went against its own internal advice.

Prior to EPA’s issuance of the rule, did you know that the EPA’s Office of General

Counsel had conducted an analysis that concluded such a risk-based rule was contrary to the Clean Air Act’s requirements?

Response. The analysis referenced above was in a draft staff memorandum that

was never finalized and that did not purport to represent the views of the General

Counsel. Advice of OGC personnel given to me or to other Agency officials is privileged communication.

Question 13b. What activities did you participate in related to EPA’s development

of a maximum achievable control technology rule for the wood products industry?

Response. With respect to EPA’s maximum achievable control technology rule for

the wood products industry, I focused primarily on the development of the rule’s

risk-based provisions.

Question 13c. Please provide me with all documents, including meeting notes,

memoranda, e-mails, briefing material, and other documents that describe your participation in EPA’s development of a maximum achievable control technology rule

for the wood products industry.

Response. I have enclosed the non-privileged documents that describe my participation in the development of the MACT rule for the wood products industry.

Question 13d. What is the detailed basis for your assertions that the scientific

findings related to leukemia risk and formaldehyde should not be considered at this

time.

Response. There is a significant body of evidence relating to the potential linkages

between formaldehyde and leukemia that is still growing and under discussion within the scientific community today. At the time of the rulemaking, we made the determination that the best-available scientifically credible information concerning the
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carcinogenicity of formaldehyde did not include the still-evolving information regarding leukemia. However, we acknowledged at that time that the EPA was in the

midst of a complete scientific review of the carcinogenicity of formaldehyde and that

the provisions of the rule would encompass the results of that work once it is completed. Currently, that scientific review is scheduled for completion in the summer

of 2007.

CREATION OF THE CLEAN AIR INTERSTATE RULE

Question 14. In EPA’s preamble to the Clean Air Interstate Rule (CAIR), EPA indicates that as a precondition of ‘‘calling in’’ a State Implementation Plan under section 110(a)(2)(D), its interpretation of the Clean Air Act is that such future action

must ‘‘bring a significant number of areas into attainment.’’ This language is at odds

with the clear language of section 110(a)(2)(D) stating that each SIP must

‘‘prohibit[] consistent with the provisions of this subchapter, any source or other

type of emissions activity within the State from emitting any air pollutant in

amounts which will—(I) contribute significantly to non-attainment in, or interfere

with maintenance by, any other State with respect to such national primary or secondary ambient air quality standard.’’

The EPA has never before suggested that this language means something other

than what it says or, more specifically that it only applies in situations where any

future action would bring a significant number of areas into attainment. Such a requirement constitutes a very high threshold and would preclude most future actions

under this provision. How is this interpretation consistent with the plain language

of the Clean Air Act?

Response. The introduction to the questions above incorrectly characterizes EPA’s

statement in the preamble to the CAIR, which addressed when EPA would consider

issuing future broad multi-state rulemakings under section 110(a)(2)(D) regarding

transported emissions. EPA’s statement in the CAIR does not address the circumstances under which EPA might issue a SIP call to an individual State. Therefore, the responses below relate only to the approach for determining whether a

broad, multi-State transport rulemaking is appropriate.

EPA believes that broad multi-state rules must be justified by a careful evaluation

of the air quality improvement that will result from the controls under consideration. The Agency intends to undertake any future broad, multi-state rulemakings

under section 110(a)(2)(D) regarding transported emissions only when they—as was

the case for CAIR and the NOx SIP call—produce substantial air quality benefits

across a broad area and have beneficial air quality impacts on a significant number

of downwind nonattainment areas, including bringing many areas into attainment.

EPA is not adopting this as a statutory interpretation, but as a policy about when

to initiate broad multi-state rulemakings under section 110(a)(2)(D). The notice rejected an alternative suggestion, supported by some commenters, that would have

created a quantitative criterion specifying a minimum percentage of nonattainment

areas before invoking this section.

Question 15. What is the purpose of including this discussion in the CAIR?

Response. The discussion was intended to clarify EPA’s position on the most appropriate circumstances for issuing broad multi-state rules to address interstate

transport issues.

Question 16. Is this language simply included in the CAIR as a means of imposing

an additional, non-statutory hurdle on future SIP calls?

Response. No. This is a clarification of our position and is wholly consistent with

the Agency’s prior use of section 110(a)(2)(D) in CAIR (2005) and the NOx SIP call

(1998).

Question 17. Is there a public health based reason for doing so?

Response. The NAAQS must be attained by specified deadlines whatever implementation strategy is ultimately adopted. The issue here is related to the efficiency,

effectiveness, and timing of implementation actions to protect public health. The

issuance and implementation of regulations under section 110(a)(2)(D) calls for a

substantial effort on the part of EPA, affected States, and source categories. It is

incumbent upon the Agency to ensure that the scale and nature of the pollution

problem to be addressed is commensurate with the implementation approach. Depending upon the circumstances, risk reduction may be more effectively and rapidly

addressed by local as opposed to widespread regional controls.

Question 18. Will this language make it easier or more difficult for a future EPA

Administrator to issue a SIP call under this section?
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Response. Neither. As stated in the response to question 1 above, this language

reflects EPA’s preference for future rulemakings of this type. EPA rejected suggestions that it develop specific quantitative criteria.

Question 19a. What is the origin of this idea? Did this idea originate with you

or another political appointee at EPA?

Response. To the best of my knowledge, this idea originated at the Department

of Energy during interagency review of the draft proposed CAIR rule. Douglas

Carter (retired) of DOE was primarily involved in developing these ideas. On EPA’s

part, negotiations with DOE on the topic for both the proposal and final rules were

led by then Assistant Administrator Jeffrey Holmstead. I became involved in the

discussions on the specific language for the final rule. EPA career staff reviewed and

provided comments on language for both proposal and final CAIR actions. As part

of these negotiations, we agreed to solicit public comment on DOE’s original, more

expansive suggestion in the CAIR proposal.

Question 19b. Did this idea originate outside the EPA? If so, please describe the

organization and/or individual that originally suggested this idea.

Response. To the best of my knowledge, this idea originated at the Department

of Energy during interagency review of the draft proposed CAIR rule. Douglas

Carter (retired) of DOE was primarily involved in developing these ideas. On EPA’s

part, negotiations with DOE on the topic for both the proposal and final rules were

led by then Assistant Administrator Jeffrey Holmstead. I became involved in the

discussions on the specific language for the final rule. EPA career staff reviewed and

provided comments on language for both proposal and final CAIR actions. As part

of these negotiations, we agreed to solicit public comment on DOE’s original, more

expansive suggestion in the CAIR proposal.

Question 19c. Did you solicit this idea or similar ideas from outside the EPA?

Response. To the best of my knowledge, this idea originated at the Department

of Energy during interagency review of the draft proposed CAIR rule. Douglas

Carter (retired) of DOE was primarily involved in developing these ideas. On EPA’s

part, negotiations with DOE on the topic for both the proposal and final rules were

led by then Assistant Administrator Jeffrey Holmstead. I became involved in the

discussions on the specific language for the final rule. EPA career staff reviewed and

provided comments on language for both proposal and final CAIR actions. As part

of these negotiations, we agreed to solicit public comment on DOE’s original, more

expansive suggestion in the CAIR proposal.

Question 20. Have you ever solicited ideas regarding ways in which future EPA

Administrations could be prevented from taking certain actions to control air pollution?

Response. No, I have not solicited such ideas.

Question 21. Have you ever had meetings with people outside EPA regarding such

a subject?

Response. No, I have not had such meetings.

Question 22. Please provide me with all documents, including meeting notes,

memoranda, e-mails, briefing material, and other documents that relate to this concept, or any concept intended to limit or constrain the ability of a future Administration to act to reduce air pollution under the Clean Air Act.

Response. Please find enclosed the non-privileged documents that relate to the

concept addressed by your question.

Question 23. Please provide me with all documents, including meeting notes,

memoranda, e-mails, briefing material, and other documents that relate to any of

the questions asked above.

Response. The documents I am providing you in response to question 9 are also

responsive to the other questions asked above.

EPA’S DRAFT PROPOSED RULE THAT WEAKENS PUBLIC HEALTH PROTECTIONS ON THE

EMISSION OF HAZARDOUS AIR POLLUTANTS

Question 24. The Washington Post and New York Times have recently reported

that a draft EPA rule would weaken nearly 100 toxic air pollution standards and

allow facilities to increase toxic air emissions, such as arsenic, mercury and lead,

by up to 50,000 pounds a year. An internal EPA memo dated December 13, 2005

shows that seven of ten EPA Regional Administrators said that the proposal would

allow polluters to ‘‘virtually avoid regulation and greatly complicate any enforcement action against them’’ and eliminate the ability to adequately enforce safeguards against polluters.
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Reports are that EPA officials dismissed regional officials’ concerns by saying that

polluters would not increase their emissions because they feared ‘‘negative publicity’’

and because they wanted to ‘‘maintain their appearance as responsible businesses.’’

Do you believe that fear of negative publicity or maintaining appearance as a responsible business ensures that facilities will not increase emissions and can substitute for enforceable requirements?

Response. The press reports concern a preliminary draft of a proposed rule, and

we are still examining the issues. I believe there are several factors, though, that

would tend to minimize those increases in many cases. For example, some sources

want to be a good corporate citizen and would choose not to change current emission

levels. Other companies would want to avoid the negative publicity associated with

increases in toxic air pollutants. Additionally, at many sources, emissions reductions

are needed for other reasons, such as netting, trading or meeting criteria pollutant

standards, and thus may not be increased for those reasons. Last, I believe most

sources would want to establish ‘‘potential to emit’’ emission limits well below the

major source threshold so as not to jeopardize their area source status.

Question 25. EPA Regional personnel have complained that they have been excluded from full participation in the formulation of this and other proposals. You

indicated in the hearing that you conduct a collaborative process. What do you intend to do to increase the collaborative nature of the draft rulemaking process? Do

you agree with the Regions that their participation could be increased?

Response. The Agency has well established procedures for internal review and

comment. The regions have reviewed the first complete draft of these amendments

as well as a second draft. Numerous revisions have been and will be made as a result of their input and comments. The normal collaborative rulemaking process has

been followed.

YUCCA MOUNTAIN ISSUES

Question 26. Do you believe that naturally occurring background levels of radiation that result in thousands of deaths annually is a safe level of radiation to apply

as a regulatory standard for human exposure?

Response. Given the complexities present at Yucca Mountain, and the extremely

long time periods contemplated for regulation, potential exposures in the range of

natural background radiation represent a reasonable level of safety. From a global

perspective, doses in the range of natural background radiation do not threaten life

or limit the ability of future generations to pursue their interests. It is important

to note that the proposed dose standard would apply only to the hypothetical Reasonably Maximally Exposed Individual, who is among the most highly exposed

members of the population. This level would not represent exposures for the population as a whole.

Question 27a. EPA looks at a range of risk, starting with a risk of one additional

death in 1 million and sometimes considering death rates of 1 in 10,000, when contemplating risk for the purpose of establishing regulatory standards. Risk levels

under consideration by EPA for Yucca Mountain are far less protective. Please answer questions a-c with a yes or no and include an explanation.

Do you believe cancer risk levels approaching 1000 times less protective than the

risk range typically employed by EPA (described above) are acceptable?

Response. Starting from a figure of 1 in 10,000, EPA’s current risk estimate for

radiation-induced cancers is an order of magnitude smaller than the values cited in

your question. The current U.S. baseline cancer risk is about 22 percent, or 1 in

5. Using EPA’s current cancer risk coefficients, we estimate that members of a population receiving an extra 350 mrem/yr for their whole life would have an additional

cancer mortality risk of 1 to 2 in 100. It is important to note that these estimates

of cancer incidence relate to the dose standards proposed to apply only to the hypothetical Reasonably Maximally Exposed Individual, who is among the most highly

exposed members of the population. Therefore, these estimates do not represent a

prediction of increased cancer incidence for the population as a whole. Given the

complexities present at Yucca Mountain, and the extremely long time periods contemplated for regulation, potential exposures in this range represent a reasonable

level of safety.

Question 27b. Are the cancer deaths that would be associated with the proposed

Yucca risk standard acceptable in your view?

Response. Given the complexities present at Yucca Mountain, and the extremely

long time periods contemplated for regulation, potential exposures in the range of

natural background radiation represent a reasonable level of safety. The current

U.S. baseline cancer risk is about 22 percent, or 1 in 5. Using EPA’s current cancer
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risk coefficients, we estimate that members of a population receiving an extra 350

mrem/yr for their whole life would have an additional cancer mortality risk of 1 to

2 in 100. It is important to note that these estimates of cancer incidence relate to

the dose standards proposed to apply only to the hypothetical Reasonably Maximally

Exposed Individual, who is among the most highly exposed members of the population. Based on potential pathways of contamination, most of the population near

Yucca Mountain would be exposed at much lower levels, if at all.

Question 27c. Is there a cancer risk level that you consider unacceptable—such

as greater than 1 in 100? 1 in 25? 1 in 12, or must the risk of cancer be even higher

than that?

Response. Each situation requires an assessment of factors specific to that situation. EPA works to maintain exposures within the risk range; however, site cleanups and other actions recognize exceptions and mitigating factors, such as cost and

technological capability. The complexities present at Yucca Mountain and the extremely long time periods contemplated for regulation represent such mitigating factors.
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