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S. HRG. 113–716 

HEARING ON THE NOMINATIONS OF KENNETH 

KOPOCIS TO BE ASSISTANT ADMINISTRATOR 

FOR THE OFFICE OF WATER OF THE U.S. 

ENVIRONMENTAL PROTECTION AGENCY (EPA), 

JAMES JONES TO BE ASSISTANT ADMINISTRATOR FOR THE OFFICE OF CHEMICAL SAFETY AND POLLUTION PREVENTION OF THE 

EPA, AND AVI GARBOW TO BE GENERAL 

COUNSEL FOR THE EPA 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

JULY 23, 2013 

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

( 

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

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

MAZIE K. HIRONO, Hawaii 

DAVID VITTER, Louisiana 

JAMES M. INHOFE, Oklahoma 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

MIKE CRAPO, Idaho 

ROGER WICKER, Mississippi 

JOHN BOOZMAN, Arkansas 

DEB FISCHER, Nebraska 

BETTINA POIRIER, Majority Staff Director 

ZAK BAIG, Republican Staff Director 
(III) 

C O N T E N T S 

Page 

JULY 23, 2013 

OPENING STATEMENTS 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 1 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 2 

Crapo, Hon. Mike, U.S. Senator from the State of Idaho ..................................... 4 

Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode Island ......... 5 

Vitter, Hon. David, U.S. Senator from the State of Louisiana ............................ 7 

Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland ................ 8 

Barrasso, Hon. John, U.S. Senator from the State of Wyoming .......................... 9 

Udall, Hon. Tom, U.S. Senator from the State of New Mexico ............................ 11 

Fischer, Hon. Deb, U.S. Senator from the State of Nebraska ............................. 11 

WITNESSES 

Kopocis, Kenneth, nominated to be Assistant Administrator for the Office 

of Water, U.S. Environmental Protection Agency ............................................. 13 

Prepared statement .......................................................................................... 16 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 18 

Senator Vitter ............................................................................................ 21 

Senator Inhofe ........................................................................................... 38 

Senator Barrasso ....................................................................................... 41 

Senator Sessions ........................................................................................ 44 

Senator Wicker .......................................................................................... 47 

Senator Boozman ....................................................................................... 48 

Senator Fischer ......................................................................................... 53 

Jones, James, nominated to be Assistant Administrator for the Office of 

Chemical Safety and Pollution Prevention, U.S. Environmental Protection 

Agency ................................................................................................................... 62 

Prepared statement .......................................................................................... 64 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 66 

Senator Carper .......................................................................................... 67 

Senator Vitter ............................................................................................ 69 

Senator Fischer ......................................................................................... 79 

Senator Fischer with Senator Crapo ....................................................... 80 

Garbow, Avi, nominated to be General Counsel, U.S. Environmental Protection Agency ........................................................................................................... 82 

Prepared statement .......................................................................................... 84 

Responses to additional questions from: 

Senator Boxer ............................................................................................ 87 

Senator Vitter ............................................................................................ 89 

Senator Inhofe ........................................................................................... 111 

Senator Fischer ......................................................................................... 115 

ADDITIONAL MATERIAL 

Materials from the U.S. District Court for the Southern District of Florida— 

New Hope Power Company and Okeelanta Corporation (plaintiffs) vs. U.S. 

Army Corps of Engineers and Steven L. Stockton (defendants): .....................
Page

IV 

—Continued 

Order granting in part plaintiffs’ motion for preliminary injunction and 

for summary judgment; denying defendants’ cross-motion for summary 

judgment ........................................................................................................ 134 

Order denying defendants’ motion pursuant to Rule 59(e) to alter or 

amend judgment; granting third party motions to intervene ................... 153 
(1) 

HEARING ON THE NOMINATIONS OF KENNETH KOPOCIS TO BE ASSISTANT ADMINISTRATOR FOR THE OFFICE OF WATER OF 

THE U.S. ENVIRONMENTAL PROTECTION 

AGENCY (EPA), JAMES JONES TO BE ASSISTANT ADMINISTRATOR FOR THE OFFICE 

OF CHEMICAL SAFETY AND POLLUTION 

PREVENTION OF THE EPA, AND AVI 

GARBOW TO BE GENERAL COUNSEL FOR 

THE EPA 

TUESDAY, JULY 23, 2013 

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

The committee met, pursuant to notice, at 9:58 a.m. in room 406, 

Dirksen Senate Office Building, Hon. Barbara Boxer (chairman of 

the committee) presiding. 

Present: Senators Boxer, Vitter, Cardin, Whitehouse, Udall, 

Inhofe, Barrasso, Crapo, Boozman, and Fischer. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. The committee will come to order. The Senate 

Committee on Environment and Public Works will consider the 

nomination of Ken Kopocis to be Assistant Administrator for the 

Office of Water at the EPA, and Jim Jones to be Assistant Administrator for the Office of Chemical Safety and Pollution Prevention, 

and Avi Garbow to be General Counsel of the EPA. 

The confirmation of qualified individuals to lead agencies is one 

of the Senate’s most important responsibilities, and I am happy to 

say that last week we voted to confirm Gina McCarthy as the Administrator of the EPA and, as Administrator, she is responsible 

for ensuring the EPA fulfill its critical mission of protecting public 

health and the environment. 

While Gina heads the Agency, she does rely on her assistant administrators and general counsel to help make the day-to-day decisions that keep the Agency on track. Each of the nominees here 

today brings essential experience and expertise that will help the 

Administrator implement programs that reduce pollution in the air 

we breathe, remove contamination from the water we drink, and 

clean up toxic wastes threatening communities. 
2 

Ken Kopocis is well known to this committee. From 2006 to 2008, 

he served on the EPW Committee Majority Staff as Deputy Staff 

Director for Infrastructure; helped us get through some very important legislation. Very difficult, but he was so good at this. He 

worked on a number of water issues, he played that key role in 

WRDA of 2007, and he has held multiple positions on the House 

Transportation and Infrastructure Committee. Ken’s work on water 

issues in the Congress spans over 25 years. 

Jim Jones brings more than two decades of experience working 

for the EPA. He is currently the Acting Assistant Administrator for 

EPA’s Office of Chem Safety and Pollution Prevention. From 2007 

to 2011, Mr. Jones was Deputy Assistant Administrator for this office, and from 2003 to 2007 he served as Director of the Office of 

Pesticide Programs at the EPA. Before that, he held several management positions at EPA and was Special Assistant to the Assistant Administrator for toxics. 

His depth of experience on chem regulation policies will help us 

move forward on these critical issues. 

Avi Garbow has worked in the legal field for more than 25 years. 

He was an attorney-advisor at EPA from 1992 to 1997; he worked 

for the U.S. Justice Department from 1997 to 2002, where he 

served in both the Environmental Crimes Section and the Wildlife 

and Marine Resources Section. After gaining additional legal experience in the private sector, he came back to the EPA in 2009, 

where he has worked as Deputy General Counsel for the Agency. 

His legal expertise will be valuable to us and to the Administrator. 

So this hearing is an important step in the Senate’s open and 

transparent process of considering and confirming people who will 

work every day to make our lives better. I believe this committee 

and the full Senate should act quickly on these nominees and provide Administrator McCarthy with the qualified people she needs 

in order to do her job, and I look forward to the nominees’ testimony. 

With that, I would turn to Senator Inhofe. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Thank you, Madam Chairman, and welcome all 

three gentlemen here today. 

First, I am concerned that the EPA has a bias in its interpretation of Federal court cases. In a recent case involving Summit Petroleum, the EPA required the company to combine or aggregate 

the emissions of multiple oil and gas wells spread out over 42 

square miles in Michigan and consider them as though they were 

one source. This triggered an expensive permitting requirement 

that would have given the EPA a foothold of additional regulation 

over this entity. Litigation ensued; Summit Petroleum won in the 

6th Circuit Court of Appeals late last year. The court said the EPA 

could not combine sources unless they are truly right next to one 

another, adjacent. 

On December 21st, 2012, the EPA issued a memo explaining how 

the Agency would apply this decision moving forward and, instead 

of applying it nationwide, the Agency said it would be limited to 
3 

just those within the 6th Circuit. This is problematic to me because 

it underscores the adversarial nature of the Agency toward oil and 

gas industry. 

But it was easy for EPA to apply this decision, even if only in 

the 6th Circuit. All EPA did was essentially revive a 2007 memo 

on the same topic. This memo is important because it was first appealed by Administrator McCarthy when she was head of the Air 

Office in September 2009. While the previous administration had 

interpreted the law correctly, Administrator McCarthy made a policy decision that was intended to require more EPA permitting of 

oil and gas wells in inappropriately combining the emissions of 

multiple sources into one. 

The EPA lost in court, after reversing in appropriate policy in 

2009, but EPA is not applying this decision nationwide simply because it doesn’t like it. The EPA has done the opposite in cases 

where it does like the outcome of the court, quickly applying a circuit or a district court’s decision nationwide. 

I had asked my staff to come up with an example of how this is 

different, the case that they are using currently. In a Colorado District case involving Louisiana Pacific, the court adopted a highly 

constrained view of what it takes to establish federally enforceable 

emission limitations. Had the court respected a more broad view of 

these limitations, it would have lowered the total emissions of certain facilities and eliminated their need to receive major source 

permits from the EPA. But because the EPA wanted to increase 

the number of sources requiring permitting, it issued a new guidance document applying the district court’s decision nationwide, 

just the opposite of what we have today, soon after the decision 

was made, at great cost to the affected entities. 

I am also concerned about the Agency’s use of highly unreliable 

and objectionable methods to calculate the benefits of rules it is 

putting together. Most notably, the Water Office’s 316(b) cooling 

water rule relies on a stated preference survey to justify its high 

cost. This survey asks respondents to name a price they are willing 

to pay to keep fish from being killed. These surveys are notorious 

for not being well constructed, and in this case it does not provide 

respondents with a true picture of the tradeoffs being made. But 

the EPA is in the process of using this rule to inflate the benefits 

of a rule so that it can justify one that is more costly to the power 

generation and manufacturing sectors in the economy. 

Finally, the EPA’s pursuit of guidance over waters of the U.S. 

continues to be a major concern of mine. Congress flatly rejected 

the proposals of expanding the Agency beyond the navigation waters when the Clean Water Restoration Act was considered in the 

111th Congress. And, of course, you remember that, Ken, because 

you were there, actually working with Congressman Oberstar. At 

that time I think he was the ranking member. Anyway, that was 

taking place at that time. And not only did we beat that, but we 

also, the two authors, Oberstar and Feingold in the Senate, were 

both defeated in the next election. So I can see that there was a 

lot of enthusiasm for stopping that. 

So that is right, you are about to hit that. Go ahead and do it. 

I am looking forward to this hearing. 

Senator BOXER. As am I. 
4 

Senator INHOFE. As am I. And I know all three of the witnesses, 

so that is kind of unusual, isn’t it? 

Senator BOXER. That is good. That is excellent. 

OK, so the order of arrival: Senator Crapo, Barrasso, Fischer. Is 

that right? OK. 

OPENING STATEMENT OF HON. MIKE CRAPO, 

U.S. SENATOR FROM THE STATE OF IDAHO 

Senator CRAPO. Thank you, Madam Chairman. I appreciate this 

hearing today, as well. I want to thank the nominees for being here 

with us to discuss your nominations, and I appreciate your willingness to serve. 

There is no doubt that this Agency faces considerable challenges, 

and as you are going to hear from a lot of us today, there are issues 

that we have. I think that the positions which the three of you 

have been nominated to are important not only to Idaho, but to the 

Nation. As the members of this committee are well aware, if you 

are confirmed, you will be directly involved in setting policies that 

have far-reaching effects for all Americans. 

I just want to make a couple observations and talk about a couple of specifics that maybe we can get into further in the questions. 

But I have to say that, in Idaho, probably the agency that is 

most brought up to me by those who visit me, whether it is individual citizens, farmers, ranchers, county commissioners, mayors, 

or what have you, is the EPA, and the reason is because of the 

EPA’s reach into every aspect of the life of individuals, businesses, 

and communities, particularly small communities that don’t have 

the economies of scale to deal with a lot of the issues that are being 

brought to them. There is no agency that has, I think, a greater 

reach, unless maybe it is the IRS. 

Actually, sometimes I joke only to think that perhaps maybe the 

EPA and the IRS are competing to be the one most feared by the 

people through their enforcement activities. And I am sorry to say 

that, but I have to say that just in terms of the input to my office 

from people from across the spectrum, there is probably not an 

agency that is more frequently brought up than the EPA because 

of its far reach, and many of us believe that it is not necessary; 

that there is an enforcement mentality that is extreme, and that 

rather than trying to work to find solutions, instead we have an approach at the EPA to force compliance and to utilize very heavyhanded techniques in order to do so. 

Now, if that is not fair or correct, I would love to understand 

that. But I can tell you that it is not what my constituents understand today. And let me just give a couple of examples. 

Probably everybody is familiar with the Sackett case, where a 

family, and if you have seen the photographs, I don’t think anybody 

could reasonably believe that they were acting in anything but 

good faith, tried to build their dream home near a lake in Idaho, 

and after they started it was determined by the EPA that this was 

a wetland, even though it wasn’t on any wetlands designations or 

anything like that. 

The bottom line is that in order to deal with this issue, what 

happened was the EPA threatened this family with fines up to 

$75,000 a day. They accumulated up to the millions of dollars, I 
5 

think. I don’t know what the final total was before they finally got 

to go to court. And the EPA wouldn’t even let them challenge the 

compliance order that was issued in court; claimed that they had 

no legal avenue to do anything but to comply. And if they didn’t 

comply, they had to face these unbelievable fines that no individual, in fact, probably not many businesses in Idaho could have 

lived with. 

Ultimately the case went to court. The court said that the EPA 

was wrong and, in fact, that the Sacketts did have a right to challenge the compliance order, and now that case is, I think, still in 

litigation as they make that challenge. 

But it is the aggressive act of basically demanding compliance, 

threatening phenomenal fines and penalties, and being rigid about 

allowing the Agency’s actions to even be reviewed. 

One other example and then I will quit; I know I am running out 

of time here. 

And that is the Clean Water Act. Mr. Kopocis, I know you are 

involved with this, but we have been fighting over whether navigable waters truly mean waters that are navigable or whether it 

includes ditches and ponds and any other water that accumulates; 

and courts have now ruled that navigable does have meaning and 

there were efforts to overturn that here in committee and in this 

Congress which were rebuffed. The word navigable is still in the 

statute and yet it is my understanding that there is a guidance, 

and perhaps rules to follow, that essentially undercuts that and 

does what Congress would not do; and that is an issue that I hope 

we can get into in the questions and answers. 

I see my time is now down to 5 seconds, so I better wrap it up, 

but, again, thank you, Madam Chairman, for holding this hearing. 

Senator BOXER. Thank you so much. 

I wanted to say, you know, your people are afraid of the EPA. 

That is what you said, they fear the EPA. 

Senator CRAPO. Yes. 

Senator BOXER. I want you to know in the polls our favorable approval in the Senate is 9 percent, and the EPA is 70 percent favorable. But maybe the 30 percent all live in your State. 

Senator CRAPO. They probably do. 

Senator BOXER. In my State, people happen to really appreciate 

clean air and clean water more than I could tell you in California, 

because we have gone through such a bad period of horrible smog. 

So it is just so interesting. What I love about the Senate is the different perspectives we each bring from our States. 

Senator CRAPO. Well, Madam Chairman, let me just say that the 

mandate of the EPA under the statute to protect our water and our 

air and our environment is one that is deeply appreciated by the 

people of Idaho. It is the way that it is being done and the heavyhanded manner that is causing these troubles. 

Senator BOXER. Fair enough. 

Let’s move to Senator Whitehouse. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 

U.S. SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Thank you, Chairman. I am glad to see 

these nominees moving forward. We have some important issues to 
6 

work through with Congress and the EPA in the President’s second 

term, and I think these are some very, very well qualified public 

servants who will help EPA fulfill its mission to protect human 

health and the environment. 

We have recently come to a bipartisan agreement confirming Administrator McCarthy, and I hope we can continue the bipartisan 

spirit. Some of these nominees have been around for a while. Mr. 

Kopocis was nominated for his position more than 2 years ago, so 

it is about time we got going on this, and I hope our bipartisan 

streak can continue. 

Mr. Kopocis is nominated to oversee the Office of Water, which 

was responsible for keeping our water safe for drinking and swimming and fishing. That office protects and restores aquatic and marine habitats like wetlands that support fisheries and recreation, 

and provides protection from flooding and storms. They have a very 

important piece of work before them that Rhode Island cares very 

much about, which is the rule to address stormwater discharge. 

Obviously, an issue like that requires a lot of balancing of interests 

of various stakeholders, and Mr. Kopocis has plenty of experience 

doing exactly that, balancing of interests and working together 

with stakeholders. 

In Rhode Island, our dominant physical feature and a feature 

that is enormously important to our economy is our Narragansett 

Bay. Well, 60 percent of Narragansett Bay’s watershed is out of 

state, it is in Massachusetts; and if they are not taking care of 

their stormwater runoff in Massachusetts, we pay the price in 

Rhode Island. And it is very important that EPA be active in this 

area. We can have a heavy rainfall dump as much as 90,000 

pounds of nitrogen into Narragansett Bay. So look forward to working with Mr. Kopocis and with our friends from Massachusetts on 

that. 

Obviously, the jurisdictional issue that Senator Crapo raised is 

an important one, and I think we need to resolve that so that there 

is not uncertainty for people who are out there wondering whether 

regulations apply. 

Mr. Jones has served the American public and five presidents in 

26 years at the EPA, and he has had a very impressive career. Now 

EPA needs to help us work to overhaul the Toxic Substances Control Act, and I don’t think there could be a better candidate from 

EPA than Mr. Jones to help this committee move forward. 

Senator Vitter, our ranking member, has been working in a bipartisan fashion with Senator Lautenberg to introduce the Chemical Safety Improvement Act. With the loss of Senator Lautenberg, 

we need to find a way to continue forward to find a way to overhaul the TSCA statute. 

I want to just take a moment and say that our friend, Senator 

Lautenberg, was a lifelong champion on this issue and had a 95 

percent lifetime score from the League of Conservation Voters, but 

of all the conservation and environmental issues he championed, 

none was dearer to him than the chemical safety issue. So, in his 

name and memory, we want to work forward to solve that problem 

and, Mr. Jones, I am sure you can be very helpful in that. 

The Office of General Counsel is obviously vital. I have been executive department counsels before, myself, and I know how wide- 
7 

ranging the experience and energy that is required in such a position. Mr. Garbow has more than two decades of legal experience, 

including serving as the deputy to the position that he has now 

been nominated for for the past 4 years. He has been a partner in 

private practice; he has been a trial attorney at DOJ. 

Madam Chairman, these are people whose experience and whose 

expertise will be an asset for the EPA and for the American people, 

and I welcome them. I look forward to advancing their nominations, and I hope they can be moved forward quickly in the new 

spirit that we have developed regarding executive nominees. 

Senator BOXER. Thank you so much, Senator. 

If it is OK with everyone, since Senator Vitter just came, is it 

all right if we call on him next? 

OPENING STATEMENT OF HON. DAVID VITTER, 

U.S. SENATOR FROM THE STATE OF LOUISIANA 

Senator VITTER. Thank you, Madam Chairman. I apologize and 

U.S. Airways apologizes for my being a little late, but it is great 

to be with all of you and the nominees. These are certainly three 

very pivotal positions with regard to EPA and regulatory policy. 

I would like to particularly focus this morning on the President’s 

nomination of Ken Kopocis as Assistant Administrator for EPA’s 

Office of Water. As a senior policy advisor for the Office of Water, 

Mr. Kopocis is already part of a team that is currently engaged in 

what we all think is a troubling expansion of regulatory authority 

under Section 404 of the Clean Water Act. Any individual or business requiring a permit to dredge or fill wetlands under Section 

404 must now worry, because of recent events, that EPA might preemptively veto a project even before a permit application is even 

submitted, or that the Agency may suddenly revoke a Section 404 

permit years after it has been issued. 

This is exactly the type of uncertainty that has been threatening 

and putting a halt on a broad spectrum of economic activity, particularly recently, including housing, development, job creating, 

mining projects, and essential flood control. 

It also appears that the Office of Water is attempting to dictate 

when a business should submit a Section 404 permit application, 

a decision that should be left entirely to the entity seeking the permit. 

I look forward to hearing Mr. Kopocis’ perspective on EPA’s unprecedented reading of Section 404 in this regard, as well as other 

issues. 

Mr. Jim Jones has worked at EPA for more than two decades 

and has served as both Deputy Assistant Administrator, as well as 

Acting Assistant Administrator for the Office of Chemical Safety 

and Pollution Prevention at EPA. Again, this is a very important 

position and I echo Senator Whitehouse’s comments and look forward to his playing, hopefully, a constructive role as we try to 

bring forward a bipartisan TSCA reform. 

And Mr. Avi Garbow has been nominated to replace Scott Fulton 

as General Counsel of EPA. Mr. Fulton departed the agency 4 days 

after Congress first questioned EPA on the former administrator’s 

use of the Richard Windsor alias email address. His resignation 

also came on the heels of the resignation of Region 6 Administrator 
8 

Al Armendariz and was subsequently followed by the resignation 

of Region 8 Administrator James Martin. Mr. Martin resigned 

shortly after this committee uncovered he had been using his personal email address to conduct agency business, in violation of EPA 

policy. 

These issues represent only a fraction of the problems at EPA 

that the committee has uncovered. I mention these today because 

these disappointments emanate from the same core: an EPA that 

does not place sufficient focus on transparency and accountability. 

As a result, the EPA inspector general is investigating these and 

other instances of wrongdoing. 

Through the course of negotiations surrounding Gina McCarthy’s 

confirmation, EPA leadership has agreed to issue new guidance for 

implementing the IG’s recommendations. 

If confirmed as general counsel, Mr. Garbow will play an instrumental role in restructuring EPA policy to improve the Agency’s 

compliance with fundamental transparency statutes such as the 

Freedom of Information Act, the Privacy Act, and the Federal 

Records Act. Moreover, he will be the final arbiter of whether EPA 

intends to commit to any level of transparency nearing what is so 

often espoused by the President. It is my real hope that he will 

take to heart improving EPA’s record on transparency, that it is a 

nonpartisan and shared and important goal. Ideally, we will be 

able to reach across the aisle and work together with the Agency 

to help better comply with the law, and I think our agreements 

reached during the McCarthy nomination process is a very substantial and very important part of that. 

And I look forward to hearing from all of these nominees. 

Thank you, Madam Chair. 

Senator BOXER. Senator Cardin. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, 

U.S. SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. Thank you, Madam Chair. 

Let me just concur with your initial observation about the importance and public support for the mission of the Environmental Protection Agency. People want to make sure that, when they turn on 

their tap at home, the water that they get is safe for them to drink, 

and they rely upon the Environmental Protection Agency and our 

Federal framework of laws for that to be true. They expect that 

when their children are swimming in a lake, that it is safe for 

them to be in that lake swimming. They expect that when they 

breathe the air, that the air will be safe and that their children, 

who perhaps have respiratory issues, will be able to go out and 

parents won’t have to stay home from work, lose a day of pay, because of air quality being such dangerous for them to be out and 

breathing. And they expect that our toxics and our chemicals are 

handled in a safe manner in order to protect the welfare of our 

community. 

That is what they expect and, quite frankly, the Government has 

done a reasonable job in making that a reality. And I think some 

of the proudest moments in the history of America is that the 

Democrats and Republicans, working together to pass the Clean 

Water Act, to pass the Clean Air Act, to work together to set up 
9 

sensible scientific-based laws to protect the safety of the people in 

our community. 

Ken Kopocis was there as we created those laws. I first got to 

know him in 1987, when I was elected to the House of Representatives, and worked with him back on those days on the House side. 

I worked with him on the Senate side. He has spent his entire career in public service in order to advance public laws that make 

sense and public policy that makes sense. 

Now, it is very interesting. Two years ago, Madam Chair, when 

you had this hearing, when we were talking about Ken Kopocis, I 

was proud to hear my Democratic and Republican colleagues praise 

him for his commitment to public service but, just as importantly, 

his ability to work with people of different views in order to try to 

bring about harmony and policy. That was our view 2 years ago, 

and I was quite surprised that we never were able to confirm Ken 

Kopocis for this position. 

I look at the other nominees that are here, Jim Jones, who has 

a very distinguished career in serving the Environmental Protection Agency, critically important position in dealing with chemicals. 

We need a confirmed position. I look at Avi Garbow, who I was 

privileged to recommend to the President for this appointment because of his distinguished career. An outstanding attorney who understands the responsibilities in that Agency. 

We have three nominees whose qualifications are beyond question. And now, Madam Chair, I want to just comment on what Senator Whitehouse said, I hope this new spirit of cooperation, we may 

differ on the final vote. I hope we don’t differ on the final vote. I 

hope all three are confirmed by the margins that they deserve. But 

it is our responsibility to make sure that the Senate takes up these 

positions for up or down votes. The EPA is an important agency. 

Some in this committee may disagree with the law. OK, try to 

change it. That is the democratic process. Let’s use regular order 

to deal with those policy judgments. But the President and the 

American people are entitled to have the positions that are provided by law filled and confirmed, and we are certainly entitled to 

have up or down votes on these nominations. 

So, Madam Chair, I hope we will have a constructive hearing 

where we can talk about the qualifications of these individuals and 

their commitment to carrying out the law; not their views, the law 

that has been passed by Congress, which the American people support us enforcing those laws. But allow us to have up or down 

votes. Stop the delay. Two years for this position to be filled is outrageous. It is time for Congress to carry out our responsibility. My 

colleagues talk about the responsibilities of the people before us. 

How about our responsibility to vote and allow the Senate to have 

an up or down vote on these three nominees? 

Senator BOXER. Thank you, Senator Cardin. 

Senator Barrasso, followed by Senator Fischer. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM THE STATE OF WYOMING 

Senator BARRASSO. Thank you, Madam Chairman. Thanks for 

holding the hearing. I would like to welcome all the nominees. I 

would also like to focus on one of the specific positions, and that 
10 

is the nomination of Ken Kopocis to be the head of the EPA’s Office 

of Water. 

If confirmed, he would be in charge of implementing the Clean 

Water Act, the Safe Drinking Water Act, and other statutes. In the 

previous Congress, I expressed concerns with regard to this nomination. I am still concerned with the depth of this nominee’s past 

involvement to change the scope of the Clean Water Act beyond 

congressional intent, and we have heard that from other Republican colleagues today who have made their statements. I believe 

this nominee has still failed to explain his views on public and 

stakeholder input on regulations that he would be in charge of and 

explain his understanding of the role of Congress versus the EPA 

in terms of who makes the laws in this Nation. 

We should not be taking making law through guidance, as is the 

case with the pending clean water jurisdictional guidance that is 

currently with the Office of Management and Budget. This is the 

guidance that essentially expands the scope of Federal authority to 

cover all wet areas within a State. Agriculture, commercial and residential, real estate development, electrical transmission, transportation, energy development and mining will be affected and thousands of jobs will be lost. By issuing a guidance document, as opposed to going through the regular rulemaking process, EPA and 

the Corps are bypassing the necessary public outreach required 

under the Administrative Procedure Act and failing to fully consider the legal, the economic, and the unforeseen consequences of 

their actions. 

EPA and the Corps affirm that this guidance will result in an increase in jurisdictional determinations which will result in an increased need for permits. Additional regulatory costs associated 

with changes in jurisdiction and increases in permits will erect bureaucratic barriers to economic growth, will negatively impact 

farms, small businesses, commercial development, road construction, and energy production, just to name a few. 

In addition, expanding Federal control over intrastate waters will 

substantially interfere with the ability of individual landowners to 

use their property. 

The guidance also uses an overly broad interpretation of the 

Rapanos decision. The effect is virtually all wet areas that connect 

in any way to navigable waters are jurisdictional. Both the plurality opinion and Kennedy rejected this assertion of Rapanos. 

I am not the only Member of Congress to address these concerns 

and to express these concerns. We had a vote during the Water Resources Development Act, WRDA, to block this guidance. A clear 

bipartisan majority, 52 Senators, opposed this guidance on that 

vote. This should send a clear signal to the nominee and the Administration to not pursue this course of action. 

Madam Chairman, I look forward to getting more clarification of 

my concerns, and thank you for holding the hearing. 

Senator BOXER. Thanks, Senator. 

Senator Udall. 
11 

OPENING STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM THE STATE OF NEW MEXICO 

Senator UDALL. Thank you, Madam Chair. Pleasure to be here 

with you today. 

Let me thank the nominees for their service, and congratulations 

on your nomination. It must be a particularly exciting atmosphere, 

I think, at the EPA right now, knowing that Gina McCarthy has 

been confirmed. As many of you know, she is a very solid, good, 

hardworking person. I had experience in New Mexico with her 

problem-solving abilities. She took a situation which was in litigation; you had coal-fired plants, you had the Governor of New Mexico, a lot of contentious parties, and she resolved that. So I think 

her ability to just focus on good common-sense solutions is very, 

very important and I am very excited that she is now in the job 

and going to be working with you. 

I think each of your offices are extremely important to the work 

that is done at EPA and I wish you well with your confirmation. 

I would like to take a second to highlight the links between your 

offices and the State of New Mexico. 

With regard to Mr. Kopocis and the Office of Water, I will be 

very interested in hearing your views on water issues. The entire 

State of New Mexico is in a severe drought, with 86 percent of the 

drought considered extreme. We are in first place when it comes 

to suffering from drought. We aren’t proud of this designation. The 

Office of Water is therefore incredibly important to us to ensure 

that our drinking water is safe and our watersheds are restored 

safely to protect human health, support economic and recreational 

activities, and provide healthy habitats for wildlife. 

With regard to Mr. Jones and the Office of Chemical Safety and 

Pollution Prevention, your office’s mission is to protect families and 

the environment from potential risks from pesticides and toxic 

chemicals. Your position and office is of further interest right now 

given the ongoing debate about reforming TSCA, the Toxic Substances Control Act of 1976. 

And, of course, Mr. Garbow nominated to the General Counsel’s 

Office. This office provides the chief legal advice to the EPA, providing legal support for Agency rules and policies. This will be particularly important as the President and EPA proceed down the 

path to writing global warming rules and regulations to comply 

with the President’s new strategy. 

Madam Chair, I look forward to hearing from the nominees and 

I hope I will be able to stay through all of them, but there are several other things going on this morning. 

But thank you very much for your service and appreciate having 

you here today. 

Thank you. Yield back, Madam Chair. 

Senator BOXER. Thank you, Senator. 

Senator Fischer. 

OPENING STATEMENT OF HON. DEB FISCHER, 

U.S. SENATOR FROM THE STATE OF NEBRASKA 

Senator FISCHER. Thank you, Madam Chairman, and thank you, 

Ranking Member, for holding this hearing. And I would like to 

thank all the nominees for your willingness to serve the public. 
12 

I am pleased that we have a native Nebraskan here today, Ken 

Kopocis, before the committee, and I was grateful for the opportunity to meet with you before today’s hearing to discuss some of 

the concerns that we have in our State about water issues, and to 

talk about the successes and the challenges EPA has had under the 

Clean Water Act. I appreciated your acknowledgment that for any 

given problem generally EPA’s first inclination to address it is with 

more regulation, and that is not always very productive. 

In Nebraska, particularly in agriculture, we have made tremendous environmental progress because of collaborative efforts. Farmers’ and ranchers’ application of new technology and conservation 

practices, for instances, has resulted in incredible improvements to 

our land, air, water quality. These environmental gains are not the 

result of a permit or a mandate or a paperwork requirement from 

a Federal bureaucracy; they are result of cooperation between producers and local extension educators and conservation agents. 

These are folks who farmers trust to help them implement sciencebased solutions that improve our efficiency and reduce our environment impact. 

Nebraskans need an EPA that understands this and that will 

look for ways to collaborate, rather than regulate, whenever possible. Nebraskans also need an EPA that realizes people are the 

most important resource, and the goal of environmental protection 

should not be pursued at the expense of all others, including housing, jobs, economic development, and individual rights. When it 

comes to measuring our success, especially under the Clean Water 

Act, we need an agency that won’t factor people out of the equation. 

I am particularly concerned about the EPA’s proposed guidance 

to defined waters of the United States, which would broaden the 

number and kinds of waters subject to regulation. Expanding the 

Clean Water Act scope imposes costs on States and localities as 

their own actions, such as transportation improvements, flood control projects, and drainage ditch maintenance, become subject to 

these new requirements. I am hopeful EPA will formally withdraw 

its proposed guidance and proceed with a formal rulemaking process that does respect the limits of law. 

Another important issue that crosscuts the potential work of all 

the nominees before us today is stakeholder involvement. Whether 

it is in the context of providing small businesses a meaningful opportunity to participate in the stormwater discharge rulemaking, 

bringing together stakeholders to fix the dysfunctional process of 

Endangered Species Act’s consultation for pesticides approvals, or 

seeking input of property owners and other affected parties when 

EPA intends to settle a lawsuit, the Agency must do a better job 

of conducting its work in a transparent and inclusive manner. 

Again, I would like to thank you all for being here, and I look 

forward to the questions. Thank you. 

[The prepared statement of Senator Fischer follows:] 

STATEMENT OF HON. DEB FISCHER, 

U.S. SENATOR FROM THE STATE OF NEBRASKA

Thank you, Chairman Boxer and Ranking Member Vitter, for holding today’s 

nomination hearing. Thank you, nominees, for being here and for your willingness 

to serve the public. 
13 

I am pleased that we have a native Nebraskan, Ken Kopocis, before the committee today. I was grateful for the opportunity to meet with him ahead of today’s 

hearing to discuss some of the concerns we have in our State about water issues 

and to talk about the successes and challenges EPA has had under the Clean Water 

Act. 

I appreciated Mr. Kopocis’s acknowledgment that for any given problem, generally 

EPA’s first inclination to address it is with more regulation, and that is not always 

very productive. In Nebraska, particularly in agriculture, we have made tremendous 

environmental progress because of collaborative efforts. Farmers’ and ranchers’ application of new technology and conservation practices, for instance, has resulted in 

incredible improvements to our land, air, and water quality. 

These environmental gains are not the result of a permit or a mandate or a paperwork requirement from a Federal bureaucracy. They are a result of cooperation between producers and local extension educators and conservation agents. These are 

folks who farmers trust to help implement science-based solutions that improve our 

efficiency and reduce our environmental impact. Nebraskans need an EPA that understands this and that will look for ways to collaborate—rather than regulate— 

wherever possible. 

Nebraskans also need an EPA that realizes people are the most important resource and the goal of environmental protection should not be pursued at the expense of all others, including housing, jobs, economic development, and individual 

rights. When it comes to measuring our success—especially under the Clean Water 

Act, we need an agency that won’t factor people out of the equation. 

I am particularly concerned about EPA’s proposed guidance to define ‘‘waters of 

the United States,’’ which would broaden the number and kinds of waters subject 

to regulation. Expanding the Clean Water Act’s scope imposes costs on States and 

localities as their own actions—such as transportation improvements, flood control 

projects, and drainage ditch maintenance—become subject to new requirements. I 

am hopeful EPA will formally withdraw its proposed guidance and proceed with a 

formal rulemaking process that respects the limits of the law. 

Another important issue that crosscuts the potential work of all the nominees before us today is stakeholder involvement. Whether it is in the context of providing 

small businesses a meaningful opportunity to participate in the stormwater discharge rulemaking, bringing together stakeholders to fix the dysfunctional process 

of Endangered Species Act consultations for pesticide approvals, or seeking input of 

property owners and other affected parties when EPA intends to settle a lawsuit, 

the agency must do a better job of conducting its work in a transparent and inclusive manner. 

Mr. Kopocis, Mr. Jones, and Mr. Garbow, thank you again for being here today. 

I look forward to questioning you about how we can work together to address these 

important objectives. 

Senator BOXER. Thank you. 

Thank you all for your comments. We will go now to the panel. 

Mr. Kopocis, this is de ́ja` vu all over again, I hope with a happy 

ending this time. This is a rewrite and we are so happy to see you 

here. Again, I want to thank you for your work in this committee, 

and I just would pray and hope that just given your goodwill and 

the way you work with both sides of the aisle, that hopefully this 

will have a better outcome for you. So please proceed. 

STATEMENT OF KENNETH KOPOCIS, NOMINATED TO BE ASSISTANT ADMINISTRATOR FOR THE OFFICE OF WATER, U.S. 

ENVIRONMENTAL PROTECTION AGENCY 

Mr. KOPOCIS. Thank you. Thank you, Chairman Boxer. Good 

morning to you, Ranking Member Vitter, and other members of the 

committee. 

Before I begin my prepared remarks, I would like to acknowledge 

who are with me here today. My wife Chris. She has been my wife 

for 33 years. My daughter Kim, who is the mother of the most delightful 3-year-old little girl you would ever want to meet, or at 

least I would ever want to meet, and Hayden Payne. My son Jeff 

and his wife Taylor are not able to be with us today, and they are 
14 

the parents of the cutest 6-week-old little girl that you would ever 

want to meet. 

I am honored and humbled to appear before you today. I have 

many memories of sitting in this very room as either a Senate or 

a House committee staffer, and that was during my nearly 27 years 

on Capitol Hill. While I have sat at this table many times in deliberations and discussions, this is a distinct perspective. 

The greatest rewards in my career have been in assisting both 

Senators and Representatives in developing bicameral, bipartisan 

legislation to address the Nation’s critical water resources and 

water quality needs. 

However, despite those accomplishments and their many rewards, it is my greatest privilege to sit before you as the President’s nominee for the Assistant Administrator for EPA’s Office of 

Water. If I am confirmed, I hope that I can fulfill both the President’s and Administrator McCarthy’s confidence in me. 

I have spent the majority of my professional life working to address the Nation’s most serious water needs. These include successfully working on eight Water Resources Development Acts; the 

Water Quality Act of 1987, which Senator Cardin mentioned, to 

strengthen the Nation’s commitment to clean water; protecting and 

restoring the Everglades and the Florida Keys; ending the practice 

of using our oceans as dumping grounds for sewage sludge and garbage; the oil pollution prevention, preparedness and response activities following the tragic spill of the Exxon Valdez in 1989; and 

developing targeted programs for the Great Lakes, Chesapeake 

Bay, Long Island Sound, California’s Bay-Delta estuary, Lake Pontchartrain and the Gulf of Mexico, the Tijuana River Valley, San 

Diego’s beaches, and the U.S.-Mexico border region. 

I am proud to have had a role in protecting the Nation’s beaches 

and restoring our economically vital estuaries, addressing the impacts of invasive or non-indigenous species, and cleaning up hazardous waste and returning our Nation’s industrial legacy to productive use through the Nation’s Brownfields program. 

Now, the Nation has made great strides in protecting public 

health and enhancing the environment while simultaneously growing the economy, but we have yet, as a Nation, to achieve the objective established by Congress in 1972 of restoring and maintaining 

the chemical, physical, and biological integrity of the Nation’s waters. If approved by this committee and confirmed by the Senate, 

it is my intent to work with all toward achieving that objective for 

this and future generations. 

In my work on the Hill, I had the privilege of working on legislation that, while sometimes controversial, always enjoyed bipartisan 

support. I learned that true success requires ensuring cooperation 

and collaboration among all interested and necessary parties. I 

have always attempted to approach issues with an open mind, 

interacting with members of the public, State and local officials, 

and interest groups on legislative and program development and 

implementation issues; and analyzing facts and the law to develop 

solutions to national and local problems. 

Chairman Boxer and Ranking Member Vitter, your recent work 

on the Water Resources Development Act of 2013 is a tangible 

demonstration of working together for a common goal. 
15 

I learned on Capitol Hill that your allies do not always have the 

correct answer, and that the advocates on the other side of an issue 

are not always wrong. It should be possible to achieve one’s stated 

goals and respect the legitimate perspective of others in the debate. 

I have observed too often that people hear, but do not listen. If approved and confirmed, you can count on me to listen to all perspectives and views in the debate. 

I believe that we all share a common goal of clean and healthy 

waters. We demand the confidence that when we turn the tap anywhere in the United States, that there will be an abundant and 

safe supply of drinking water. We can restore and protect our precious resources such as the California Bay Delta, Everglades, 

Chesapeake Bay, Lake Pontchartrain and the Gulf Coast, the 

Great Lakes, and the Long Island Sound. We can swim at our 

beaches and eat the fish that we catch. And we can create opportunities for the next generation that exceed those that were present 

for us. 

Thank you, and I welcome any questions that you may have. 

[The prepared statement of Mr. Kopocis follows:] 
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Senator BOXER. Thank you so much, Mr. Kopocis. 

Mr. Jones. 

STATEMENT OF JAMES JONES, NOMINATED TO BE ASSISTANT 

ADMINISTRATOR FOR THE OFFICE OF CHEMICAL SAFETY 

AND POLLUTION PREVENTION, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. JONES. Good morning Chairman Boxer, Ranking Member 

Vitter, and other members of the committee. 

I am greatly honored to appear before you today as President 

Obama’s nominee for Assistant Administrator of the Office of 

Chemical Safety and Pollution Prevention at EPA. 

With me today are my wife, Amalia, and our daughter Lena. Our 

son Marcellus is away at soccer camp, so he is unable to be with 

us here today, but I am sure his sister will fill him in on all the 

excitement. 

For 26 years, I have served as a career employee of EPA. The 

majority of this time has been spent in furthering chemical safety. 

Over 17 years ago, I was engaged in the development of the Food 

Quality Protection Act. This law, which passed with bipartisan support, required EPA to evaluate all food use pesticides against a risk 

based standard within 10 years. Although few thought the Agency 

would be able to meet such an ambitious schedule, we did just that. 

Although some pesticides were completely eliminated from use in 

the U.S., for many others, EPA, working with stakeholders, was 

able to find common sense, cost-effective ways to reduce exposure 

and meet the rigorous safety standard. I am proud to have played 

a role, along with many other dedicated and talented EPA staff, in 

ensuring food safety in the United States. Some of the most salient 

lessons I learned in this experience were the importance of sound 

science as the underpinning of our decisions and the power of 

transparency in our processes. 

More recently, my efforts in furthering chemical safety have focused on the implementation of the Toxic Substances Control Act, 

or TSCA. At the beginning of the Obama administration, I was an 

active participant in the development of the Administration’s principles for TSCA reform. It has been very encouraging to see similar 

principles articulated by industry and public interest stakeholders. 

I look forward to working with this committee on modernizing 

TSCA to ensure the safety of chemicals in consumer and commercial products. 

As important as TSCA reform is to a robust chemical safety program in the U.S., I believe it is important for EPA to use the existing tools it has to ensure chemical safety. We are assessing the risk 

for those chemicals which we know present hazards and to which 

we know people are exposed. We have developed a workplan for 

these chemicals and have published the first five draft risk assessments. More risk assessments are coming. We are also increasing 

the availability and the accessibility of information so that manufacturers, their customers, and the public can make informed 

choices about chemicals and products. Last year we published the 

first ever Safer Chemicals Ingredients List, which now has over 

600 chemicals, and we are adding to this list. In the coming weeks, 
63 

we will launch a website that will allow industry and the public 

easier access to health, safety and other data on TSCA chemicals. 

I also believe that preventing pollution in the first place is a preferable approach to achieving chemical safety. Over the years, I 

have promoted and participated in programs that work with industry and the public to make environmentally preferable choices. 

These programs have payoffs that far exceed the minimal resources 

used to initiate them. 

I am proud to have had a role in furthering chemical safety of 

this Nation. Ensuring chemical safety, maintaining public confidence that EPA is protecting the American people and our environment, and promoting our global leadership in chemicals management remain top priorities for me. If confirmed, I look forward 

to working with this committee, especially in the area of TSCA reform. 

Thank you, and I appreciate your questions. 

[The prepared statement of Mr. Jones follows:] 
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Senator BOXER. Thank you. 

And Mr. Garbow. 

STATEMENT OF AVI GARBOW, NOMINATED TO BE GENERAL 

COUNSEL, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. GARBOW. Thank you, Chairman Boxer. 

I would first like to express my appreciation to you and Ranking 

Member Vitter for holding the hearing. I am also grateful to those 

committee members and their staff who met with me in anticipation of this hearing. 

I would like to take a moment to recognize and thank members 

of my family, some of whom are here with me today. My wife, 

Nancy Anderson, my son Tai, my daughter Cady. My oldest son 

Dylan is hopefully having a great time at sleep-away camp, so is 

not here today. My folks, Mel and Dene, and my sister Rachel. To 

each of them, I am grateful for their love, support, and sacrifice for 

allowing me to do what I think is important and worthy of my kids. 

I am also honored that President Obama has nominated me to 

serve as General Counsel for the U.S. Environmental Protection 

Agency and, if confirmed, will do my utmost in helping the Agency 

keep the promise of its vital mission, with fidelity to the law, and 

will always strive to earn and hold the confidence of the President 

and of Administrator McCarthy in leading the Office of General 

Counsel. 

My legal career has spanned over 20 years, with a focus on environmental law, and I have held numerous positions in both government service and in the private sector. I should say that every client I have had and every stop I have made along the way has 

made me a better lawyer, a better manager, and a better public 

servant. 

In 1992, I joined EPA’s Office of Enforcement and from that 

perch learned about the inner workings of Agency rulemakings and 

saw both the challenges of implementing many provisions of our 

environmental laws, but also the many successes that result from 

working with Federal, State, and local partners and other stakeholders to ensure that the benefits and protections of our environmental laws are more fully realized. 

In 1997 I joined the Justice Department and because a prosecutor in the Environmental Crimes Section. I thought then, as I 

do now, that serving in that capacity carried with it an awesome 

responsibility: to prosecute cases on behalf of the United States 

with integrity, with constant attention to detail, but also to decline 

matters when justice so required. 

When I left the Department of Justice in 2002, I then worked as 

a Junior Partner and a Partner, respectively, at two law firms. I 

had the opportunity to represent individuals, small and large businesses; I provided legal counsel in the homes, businesses, and 

board rooms of clients; I advocated in courts across the Country, 

and the opportunity to work in the private sector, for me, enhanced 

my professional growth. I gained a better understanding of how 

and why the legal issues that I confronted, whether large or small, 

were consequential for each of the individuals and businesses with 

whom I worked, and that is a lesson I carry with me today. 
83 

In 2009 I had the privilege of returning to EPA, where I presently serve as Deputy General Counsel. I should note that, upon 

my return, I received an email from a colleague that simply said, 

‘‘Welcome home.’’ And it was a sentiment that reminded me of my 

deep commitment both to the mission of EPA and makes even more 

humbling the occasion of my nomination. 

In the past 4 years, I have worked on significant matters with 

nearly every office in the Agency, on issues that have touched each 

of its regions and all of your States. We have worked closely with 

our esteemed colleagues in the Justice Department to defend the 

Agency’s actions when challenged in the courts of law and, above 

all, it has been my pleasure and privilege to work with and help 

to lead the extraordinarily talented and dedicated lawyers and 

other professionals who work in EPA’s Office of General Counsel. 

In every instance where I or the Office have been called upon to 

render legal advice, we have adhered to the principles that our 

legal analysis and judgment must be presented with candor, be unvarnished, and always directed to the faithful implementation and 

administration of our Nation’s environmental laws. The key environmental laws are, by design, confining in certain respects regarding Agency action, but other provisions of law allow for greater discretion, placing great weight on scientific findings and the judgment of the Administrator. But in either case, I think the Office 

of General Counsel must continually challenge itself to confront 

and account for any ideas, interests, or perspectives that may shed 

light on both well-trodden and new legal paths available to achieve 

the goals of our laws. 

So, if confirmed, I look forward to engaging constructively with 

Congress, with stakeholders, and with members of the general public on matters that are within the purview of the Office of General 

Counsel. I commit to listen carefully to all who may seek to advance legal arguments or interpretations that can help our Office 

provide sound legal advice to Administrator McCarthy, our clients 

within EPA, and others within the Administration. 

Thank you again, Chairman Boxer, Ranking Member Vitter, and 

the other distinguished members of the committee, and I welcome 

any questions that you might have. 

[The prepared statement of Mr. Garbow follows:] 
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Senator BOXER. Thank you so much. So I just want to thank colleagues for being here today because I just can’t imagine how anyone here listening to each of you could question your qualifications, 

your experience, and, frankly, your humility that you bring to the 

table; and it is so refreshing and I am so hopeful we can make this 

work for you and for your families. 

I also want to ask the families and the friends who are here with 

our nominees to stand, if they would, for a moment. Please stand 

up, family and friends. And to the young people who are here, we 

are just so proud of your family member for taking on this challenge, and I thank all of you for being here today because you 

make your sacrifices. Please sit, and thank you very much. 

I want to start with our legal counsel. 

Mr. Garbow, what impresses is the breadth of experience that 

you have, particularly as I listen to my colleagues on the other 

side, their concerns, because I think the fact that you did take a 

break and you did go to the private sector should give them a good 

feeling that you know how life looks from that side. And I place 

into the record—I know you worked for Wilmer Hale—the breadth 

of their clientele, some of whom were Boeing, Citi Group, Chrysler, 

General Electric, Monsanto, Kodak, and banks, etcetera. And I do 

feel, this is very critical, that when you do your recommendations, 

you said it well yourself, you have to be, of course, confined to the 

law, but there are times when you will make a decision that is your 

best reading of it and how it will work best. 

So I am going to ask you this question: Is it the job of the general 

counsel to make policy or to advise policymakers on the applicable 

legal requirements when implementing our Nation’s environmental 

laws? 

Mr. GARBOW. Thank you, Chairman Boxer. I don’t think that it 

is the general counsel’s position, if you will, to make policy at the 

Agency. I think lawyers function best, and certainly the general 

counsel, I think, functions best at the Agency when he or she is 

able to provide legal advice to inform and guide policy decisions. 

But I do not view our office as being a house, if you will, for making such decisions. 

Senator BOXER. That is very important to our colleagues and to 

all of us, because that is the point, and that is why we need someone there with your type of background who sees it from all the 

various lenses, and I am hopeful that you will gain support for this 

position. 

Mr. Jones, as you heard, we are going to take a look at reforming 

TSCA. There are two recent bills that were introduced, both by 

Senator Lautenberg, and other bills that have been reported on 

TSCA in other committees. We are going to have an all-day hearing 

next week. And I know you don’t take position on any of the bills, 

but will you be ready to give us the technical advice? Because we 

will be crafting a compromise and we are going to need your help. 

Would you be ready, willing, and able to help us through that, 

given all your experience? 

Mr. JONES. Thank you, Chairman Boxer. I very much look forward to providing the committee any technical advice that you 

need as you craft a TSCA reform bill. 

Senator BOXER. Thank you. 
117 

And Mr. Kopocis, I just want to say you should be voted out of 

this committee with enthusiasm. And I know people are very concerned, and they should be, and so am I, about the definition of waters of the United States. We could all come up with our own definition. I know what I would like mine to be, given my State. I am 

sure Senator Fischer knows what she would like it to be, and on 

and on. Each of us would have our own definition of where there 

should be some Federal regulation. At the end of the day, it is 

going to be done, after you review many, many comments, as I understand it, that are coming in by the hundreds, if not by the thousands. 

I am not going to ask you a question. I am going to keep the 

record open and I am going to have some written questions for all 

of you to answer, please; about a total of 10 for all combined. 

But when I go back to 2007 and the breakthrough work that 

Senator Inhofe and I were able to do on the WRDA bill, I have to 

tell the committee something. It was Ken Kopocis who said Louisiana is in trouble. It was Ken Kopocis who said we need to look 

at how we can help them post-Katrina. You know, it wasn’t easy 

for a lot of us, we all have our problems, but it was Ken Kopocis 

who said this is what you really need to do. It had nothing to do 

with partisanship or anything else. 

And I remember your work getting that done, it was so difficult, 

and working with all of us to get it done. So I would just hope, 

again, that when we come down to—people can vote no in protest. 

Lord knows I have done that enough times in my life, voted no in 

protest. But we need to move these through. Right now I know, 

Ken, you are working as a consultant, as I understand it, to the 

EPA, and we have an acting person. That is terrific, but I think 

when there is frustration—and I feel it here in the committee, and 

I don’t have any problem with it because, indeed, these are very 

important issues—you want someone that you can go to who has 

that confirmation behind him or her so you can hold them accountable. So I am hopeful that we will move all of these quickly, these 

nominees. 

Senator Vitter. 

Senator VITTER. Madam Chair, Senator Inhofe has to go to another engagement, so I am going to let him go now. 

Senator BOXER. Sure. 

Senator INHOFE. Thank you, Madam Chairman, and thank you, 

Senator Vitter. 

Mr. Garbow, in our meeting that we had in my office, we had the 

opportunity to discuss the 6th Circuit Court decision I mentioned 

in my opening statement. I trust you have had an opportunity to 

review that case since that time. Now, since the letter of the law 

and the court’s opinion are so clear, what is your position now? Are 

you going to be willing to expand the 6th Circuit decision nationwide so that there is a clear regulatory standard? And the reason 

I ask that, I mentioned that in my opening statement, I also mentioned that there are other cases where the reverse was true. So 

what is going to be your attitude now in that case? 

Mr. GARBOW. Senator, thank you for the question, and I do recall 

discussing this at our meeting and I did, as I said I would, undertake to find out more about both the case and the memo that you 
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describe. As you know, the case dealt with the circuit court’s interpretation of an Agency regulation dealing with the relationship, if 

you will, between an oil and gas sweetening plant and some wells 

for purposes of a determination; and there was, I think, after that 

circuit decision, with counsel of the Justice Department and obviously discussions with the client, a decision made, as evidenced by 

a memo that you referenced, to only apply that decision within the 

6th Circuit. 

I should point out that I don’t think that that practice, if you 

will, is limited to either our Agency or, for that matter, this Administration; it, I think, finds support as well in just the general notion 

of the Federal system, where different circuit courts approach 

things differently, as you may have heard, a law of a circuit, things 

are different. 

So what I can commit, Senator, to do is to go back to that memo. 

I understand that it was to be conveyed to States and potential 

permit applicants to see how it is being implemented, if you will, 

elsewhere in the Country. Certainly, in future instances like this, 

if confirmed, I would look very carefully at the pros and cons for 

taking this approach. I think, above all, my concern, Senator, if 

confirmed, would be not only to ensure that we got some consistency and a good understanding of why we are applying decisions 

one way versus the other, but primarily to make sure that the 

Agency operates, again, as Senator Vitter has pointed out, in a 

transparent way; that we communicate with clarity. 

Senator INHOFE. OK, I am really sorry, but my time has almost 

expired just on this one answer. Is it yes or no? 

Mr. GARBOW. I will go back and look at the memo, Senator, and 

explore the case. I cannot commit right now. 

Senator INHOFE. OK. That is fine. 

Senator Cardin mentioned, Mr. Kopocis, you and I, actually, we 

came in the same year, so we were with you in 1987. It has been 

a long friendship, I might add. You are aware that agencies tried 

to link the hydraulic fracturing to groundwater contaminations 

three different times. I mentioned this, Pavilion in Wyoming, 

Debbick in Pennsylvania, Range Resources. And then, of course, 

Senator Crapo talked about the most egregious case out there. And 

this is the same question that I asked Lisa Jackson some time ago. 

Are you aware of any documented cases of groundwater contamination being definitively caused by hydraulic fracturing? Short answer, if you would, please. 

Mr. KOPOCIS. No, I am not. 

Senator INHOFE. Thank you very much. 

I have a question for all three of you having to do with the sue 

and settle issue. It has really been concerning to me, but I was encouraged that the Agency recently allowed the National Association 

of Manufacturers to be at least somewhat involved in a recent lawsuit involving the development of the new ozone standard. The 

question for all three of you, and, if you would like, you can go 

ahead and answer it for the record, but be really definitive. Will 

you commit to engaging with industry groups that will be affected 

by settlement agreements with non-Governmental organizations 

before those agreements have been entered into? If you would like 
119 

to give me a short answer now, that is fine; if not, for the record 

would be fine. 

Mr. GARBOW. If I may, Senator, with respect to your question, I 

will commit to have, if confirmed, an open door and respond to any 

requests to meet and—— 

Senator INHOFE. OK, that is a good answer. That is a good answer. 

Anybody else agree with that? 

Mr. KOPOCIS. Well, I would say that that has been my track 

record. I have always been willing to listen to anybody’s point of 

view, and that would certainly continue if I were confirmed. 

Senator INHOFE. I appreciate that very much. 

Mr. Jones. 

Mr. JONES. Same answer applies to myself. Thank you, sir. 

Senator INHOFE. Very good. 

Thank you very much, Madam Chairman. 

Senator BOXER. Thank you so much, Senator. 

Senator Whitehouse. 

Senator WHITEHOUSE. Just to follow up on Senator Inhofe’s questioning. I assume that in the case of litigation that is brought by 

corporations and by industry and by polluters and so forth, that 

you would be equally willing, on a reciprocal basis, to make sure 

that whatever courtesies are offered industry in environmental litigation, the same courtesies are offered to environmental organizations in corporate-driven litigation. 

Mr. GARBOW. Senator, I can commit to basically look with neutrality, if you will, as to each complaint. It really doesn’t matter, 

I think, to the Agency, nor would it to me, if confirmed as general 

counsel, whether a plaintiff comes from an industry trade association or an environmental group. I think that, in applying the law, 

we need to both, in rendering our own legal judgments and working with the Justice Department, be both impartial and treat each 

side, if you will, with equal respect. 

Senator WHITEHOUSE. Mr. Kopocis, as you know from our discussion in my office, I am concerned about the problem of stormwater 

runoff into Narragansett Bay. We have spent, I don’t have the 

number ready to mind, but I want to say north of $160 million in 

our State to build a combined sewer overflow facility that can protect the Bay. We are now seeing significant improvements. The line 

above which you are not allowed to keep shellfish you have caught 

has moved north. The line above which it is not safe to swim has 

moved north. The Blackstone River and the Providence River have 

been opened to fishing. So we are moving in the right direction, but 

we have virtually all of Narragansett Bay, but only 40 percent of 

the watershed. And if our friends in Massachusetts continue to 

dump stormwater runoff into the rivers that flow through Rhode 

Island and into our Bay, they get the benefit of not having to spend 

the money; we pay the price with our Bay. It is a little bit like 

being a downwind State under the Clean Air Act, where the dirty 

States upwind enjoy burning cheap goal, they build great big 

smokestacks so that their people are protected and they dump their 

pollution on my State and we end up with kids in the hospital in 

my State. Not a great circumstance. 
120 

So on the water side, particularly in light of the delays we have 

seen in the Chesapeake rule that had been the subject of an agreement with an organization down here, where do we stand and how 

are we going to move forward on stormwater runoff? 

Mr. KOPOCIS. Well, thank you very much for the question, Senator Whitehouse, and I do recall our good discussion when we met 

in your office. The Agency is actively working on revisions to its 

stormwater rule. It is trying to take a new look at the stormwater 

issues and develop new approaches that can provide not only the 

water quality benefits that I believe everybody seeks, but also understand that there are additional benefits associated with controlling stormwater, in some instances which create an incentive for 

these upstream communities that you have in your circumstance to 

undertake efforts to address stormwater. 

The Agency has been working with communities, been working 

with the national associations associated with communities, 

etcetera, to try to develop this suite of options. The Agency is looking to move from the more traditional, what we call the grey infrastructure, which for years was basically how quickly can you have 

a pipe that takes the stormwater and throws it downstream, with 

little regard for the impacts downstream, and, instead, looking at 

green infrastructure, which retains more of that stormwater onsite, 

lessens downstream flows, and, of course, reduces the amount of 

pollution that might be introduced downstream. 

The Agency has identified a lot of ancillary benefits associated 

with that. As you said, reducing stormwater, but also for CSOs. If 

less water is introduced into the system, there are fewer problems 

with combined sewer overflows. It can also serve benefits such as 

groundwater recharge, reduced flooding, reduced erosion and siltation. Recreational values. Many communities are moving back to 

the water and they want to take advantage of those kinds of values. Improved air quality, reduction—— 

Senator WHITEHOUSE. So what will you be doing to achieve those 

values with the stormwater runoff rules? 

Mr. KOPOCIS. Well, in the stormwater runoff rule, what we are 

trying to do is fashion a way to encourage those kinds of activities 

that will keep stormwater where it falls, rather than have it be 

rapidly sent downstream. In your instance, I know a good deal of 

the runoff for Rhode Island comes from Massachusetts. 

Senator WHITEHOUSE. Short of filing an original action in the 

U.S. Supreme Court and suing them directly under the Constitution, you are all we have got. That is why EPA is important and 

I look forward to working with you on this. My time has expired. 

Mr. KOPOCIS. Thank you very much. 

Senator BOXER. Senator Vitter. 

Senator VITTER. Thank you, Madam Chair. 

Mr. Kopocis, would you agree that this waters of the United 

States issue is certainly very significant and important by any 

standard and is a significant threshold jurisdictional issue? 

Mr. KOPOCIS. Yes, sir, I would. 

Senator VITTER. Given that, what is the argument for deciding 

this by mere guidance? What is the advantage, apart from ease for 

EPA, apart from minimizing legal ability to challenge whatever 

EPA comes up with? 
121 

Mr. KOPOCIS. Well, thank you for the question, Senator. I think 

that the decision of the Agency to move forward on guidance was 

made with the belief that it would most benefit both the regulated 

community and the regulators to provide some greater clarity in 

the application of the jurisdiction of the Clean Water Act following 

the two decisions of the Supreme Court in SWANCC and Rapanos. 

Senator VITTER. I don’t want to interrupt you; you can certainly 

finish your answer, but I want to be cognizant of the time. But my 

specific question is why guidance and not a formal rulemaking, 

given the clearly significant nature of this decision? 

Mr. KOPOCIS. Senator, the decision to move forward on the guidance was made before I was with the Agency, and the Agency has 

also been simultaneously moving to develop a rule. I should always 

point out that both the guidance and the rule would be an action 

done jointly by both EPA and the Army Corps of Engineers, since 

it is a program which is jointly administered by the two agencies. 

But the agencies are moving forward to develop a rule to submit 

to OMB that would then be put out for public notice and comment. 

Senator VITTER. What is your understanding of the reason they 

are doing this by guidance, at least first? Even though it predates 

you, what is the advantage of doing that versus what would seem 

to be natural for something this significant, which is a rulemaking? 

Mr. KOPOCIS. The use of guidance, of course, is not unusual. Following the two Supreme Court cases, the prior administration 

issued guidance to try to help the regulated community understand 

the impact of those decisions. It is administratively easier to issue 

guidance, and my understanding was that both agencies were seeking to provide greater clarity in a more timely fashion, and then 

would follow up with formal rulemaking action. 

Senator VITTER. What is the specific legal authority for doing 

something this significant by guidance? 

And I would ask Mr. Garbow to answer the same question. 

Mr. KOPOCIS. Well, the Agency has general authority to issue 

guidance or to issue other interpretive documents associated with 

both the statutes or the regulations that it administers, so that 

would have been the authority. I am unaware, and I will defer to 

our Office of General Counsel, but I am unaware of any specific 

statutory authority in the Clean Water Act in relation to guidance. 

There is specific authority in the Clean Water Act for the Agency 

to issue regulations. 

Senator VITTER. Mr. Garbow, what is the specific authority for 

doing something this significant by guidance? 

Mr. GARBOW. Senator Vitter, I don’t have a different answer than 

Mr. Kopocis gave. My understanding is that the authority to issue 

the guidance can be found in part perhaps in the Administrative 

Procedure Act. But I am unaware of anything, for example, in the 

Clean Water Act that speaks directly to the selection of a guidance 

versus a rulemaking as a mechanism. 

Senator VITTER. There is certainly specific language in the Clean 

Water Act regarding rulemaking, correct? 

Mr. GARBOW. I believe that is correct, of course. 

Senator VITTER. OK. Well, again, this is extremely troubling for 

all of us on the Republican side, and I think you hit the nail on 

the head when you said, in your last answer, Mr. Kopocis, that it 
122 

is easier for the EPA. It sure is. There is a lot less opportunity for 

input and challenge, and it is easier for the EPA. That is not compelling, in my mind. 

Mr. Kopocis, on the issue of Pebble Mine, we are also very, very 

troubled by this preemptive watershed assessment, which is completely unnecessary, not mandated by the law. How much money 

has EPA spent to date on this preemptive watershed assessment? 

Mr. KOPOCIS. Senator, my understanding is that the agency, through earlier this year, has spent approximately $2.4 million in 

external costs. I do not know of an estimate of internal cost to the 

Agency. 

Senator VITTER. OK. That is the figure I have for external contract work. Also, $170,000 on a conference for peer reviewers. But 

you are right, that doesn’t include anything internal. That is very 

significant, so what is the rationale for doing something that is not 

mandated, that is not necessary, and that is preemptive? 

Mr. KOPOCIS. Well, approximately 3 years ago the Agency was 

petitioned by a number of residents and entities in Alaska to exercise its authority under 404 to stop a permit from being issued for 

a proposed Pebble Mine. The agency chose to not favorably respond 

to that petition, but instead decided to take up the assessment, 

which is currently underway. It was based in part upon the level 

of interest associated with that proposed mine, the size of the proposed mine, and the significance of the resources in the Bristol Bay 

watershed that could be affected. 

Senator VITTER. Well, again, in closing, Madam Chair, let me 

just say that this is completely preemptive and unnecessary, and 

we think it would be far more constructive for the EPA to do what 

is in the law, react to a specific permit application. 

Senator BOXER. Thank you, Senator. 

Senator Fischer. 

Senator FISCHER. Thank you, Madam Chair. 

Mr. Kopocis, I am sure that you understand the concerns that 

our farmers have with the guidance proposal that Senator Vitter 

was talking about. I would like to ask you about a document that 

I found on your website that states that agricultural exemptions 

will remain under the proposed guidance. Are you familiar with 

that document? It is the Agricultural Exemptions Remain. 

Mr. KOPOCIS. OK. I am not sure exactly what document, but I 

am very familiar with the agricultural exemptions that are in the 

Clean Water Act, yes. 

Senator FISCHER. OK. 

Madam Chair, if I could have that entered into the record, the 

document. 

Senator BOXER. Without objection, so ordered. 

[The referenced document follows:] 
123 
124 
125 

Senator FISCHER. Thank you so much. 

The document states in part, ‘‘The guidance does not address the 

regulatory exclusions from coverage under the CWA for waste 

treatment systems and prior converted crop land, or practices for 

identifying waste treatment systems and prior converted crop 

land.’’ 

So, based on that statement, I am not clear whether the well-recognized regulatory exemption for prior converted crop lands would 

remain in place under this proposed guidance. Can you tell me if 

the guidance is going to affect that in any way for the prior converted crop lands exemption? 

Mr. KOPOCIS. Well, I can say, of course, a final guidance document has not been issued, but there has been no attempt in either 

the draft guidance or in the documents that are currently under 

consideration to in any way adversely affect the current exemptions 

for prior converted crop land. 

Senator FISCHER. So you are telling me that exemption would 

still remain for that prior converted crop land, in your opinion right 

now? 

Mr. KOPOCIS. Yes. That is the current working theory within the 

Agency, yes. 

Senator FISCHER. OK. What if you have prior converted crop land 

and it is converted to a non-agricultural use? Would the farmer 

lose that exemption just because he decides that he is going to use 

his property in another manner? 

Mr. KOPOCIS. Well, the nature of the exemption would depend on 

what that post-crop activity might be. There might be a need for 

a permit or it may be an activity which continues to not need a permit. 

Senator FISCHER. Can you give me an example of what an activity would be that wouldn’t require a permit? 

Mr. KOPOCIS. Well, there are a number of exemptions from the 

permit program from the 404 permit program that are in Section 

404(f). They are a variety of activities associated, a lot of them substantially associated with agriculture, but others have to deal with 

maintenance of stormwater ditches. Those kinds of things are also 

activities which would not need a permit, irrespective of whether 

the land was in an agricultural use or not. 

Senator FISCHER. Thank you. In February, the EPA released a 

draft of its national rivers and stream assessment, and it attempts 

to survey the ecological conditions of streams and rivers throughout 

the Country. As EPA’s headline in a press release announced to the 

American public, the Agency found in the assessment that more 

than half of the Nation’s rivers and streams are in poor condition, 

and the EPA’s Office of Water Acting Assistant Administrator 

Nancy Stoner stated that America’s streams and rivers are under 

significant pressure, although she didn’t elaborate, necessarily, on 

who or what is putting pressure on these waterways. The implicit 

suggestion, from reading that report, is that agriculture and industry are the culprits. 

I have a problem with that assessment. I think to determine 

water quality conditions across the Country, when we looked at 

that, EPA compared the sampling results with conditions at least 

disturbed sites around the Country in different regions, and accord-
126 

ing to the EPA, this least disturbed benchmark standard is defined 

as those sites that are least disturbed by human activities, so it is 

water bodies where humans really aren’t. I think that creates a 

problem on how the assessment is made. 

Do you think that that needs to be looked at, on what benchmark 

we are using so it gives us a more realistic assessment? 

Mr. KOPOCIS. Senator, thank you. I know that there have been 

a number of questions raised about the way EPA developed its 

benchmarks for conducting the water quality assessment. If confirmed, I can commit to going back, asking our people to take another look at that and reconfirming what is the appropriate way for 

EPA to set benchmarks for conducting this assessment. But as we 

all know, it has been very important for many years to answer the 

question of how well are we doing, and I think that was a big component of what the Agency was trying to do. I think it is very valuable information and I can commit to working with you on that. 

Senator FISCHER. Thank you so much. I appreciate it. 

Thank you, Madam Chair. 

Senator BOXER. Thanks. Coming from my great State, that has 

so much agriculture, a huge amount, probably 600 different specialty crops at this point, when land is converted for other uses, for 

example, Senator Fischer, in our case we lose the land, the ag land 

to heavy development. They move right under the county and they 

have to abide by those rules. But if they are going to continue with 

the kind of uses that you describe, I think they can retain the benefits of that zoning. But I thought that question was very important. 

Senator Boozman. 

Senator BOOZMAN. Thank you, Madam Chair. 

We appreciate all of you being here. It is especially good to see 

you, Mr. Kopocis. I enjoyed very much working with you on the 

House side. 

I think the guidance thing really is important. Have past administrations used guidance when it comes to something like waters of 

the United States in the past, with such high stakes? 

Mr. KOPOCIS. Yes. Both of the Supreme Court cases came out 

during the prior administration, and they twice issued guidance. 

One I believe was in 2003 following the SWANCC decision, and 

then there was another one in 2008 following the Rapanos decision 

of 2006. 

Senator BOOZMAN. OK. I do think that from a public policy perspective it certainly would be good to have stakeholder input, those 

that you are regulating, as you bring something out of the importance of the guidance concerning the waters of the United States. 

In the past there has been a real effort to try and pass a law that 

would do what the guidance says. Congress was not able to do that, 

and it does appear that this is just a way to circumvent the will 

of Congress and I think the will of the public without getting stakeholder input. 

Mr. Kopocis, the one thing that is a bother to me is it always 

seems like the Agency really touts the fact that they are open to 

the States and the States make the decision, and yet when it seems 

to be a decision that the State doesn’t agree with, then the EPA 

comes down and says, well, this is the way it is going to be. Can 

you talk a little bit about cooperative federalism and maybe give 
127 

some examples of decisions that when the States do disagree, that 

they should be allowed to go ahead with that disagreement? 

Mr. KOPOCIS. Well, thank you very much for the question. Our 

environmental laws are set up with State partners. As you are 

probably aware, for example, the Clean Water Act, the permitting 

authority for that rests in 46 of the 50 States. So they are the 

front-line entity that administers that Act. There are comparable 

numbers for the Safe Drinking Water Act in terms of ensuring that 

our water supplies are safe. 

EPA and its regional offices, we like to think we work collaboratively with the States. I will not suggest to you that I haven’t 

heard many instances over the years of some frustration on the 

part of the States, but EPA is committed to addressing the unique 

needs of the individual States. I know that there are variabilities 

among our regions and among the States in how the interaction exists between EPA and the individual States, and, if I am confirmed, 

I am committed to continuing in expanding those availabilities of 

flexibility and a willingness to consider the circumstances of each 

of the States. 

Senator BOOZMAN. So if the State of Arkansas, community in Arkansas, working with the State, came up with a different nutrient 

requirement than EPA, then the State would have the ability to go 

forward with their requirement? 

Mr. KOPOCIS. Actually, nutrients is an example where EPA has 

been very interested in working with States to tailor the nutrient 

requirements for that particular State. As you may know, the 

Agency has been asked to come up with nationwide criteria associated with nutrients and so far has chosen not to do so. The Agency 

believes that there are opportunities for the individual States to 

address their needs. 

As is the case for the entirety of the Clean Water Act, EPA does 

establish and publish national water quality criteria for a variety 

of pollutants, but States are free to make modifications to that. 

EPA does have an approval role for that, but there are States that 

have chosen to do something other than what EPA may have recommended. As I said, nutrients is one that is a current issue that 

is of great importance to the States and to water quality nationally, 

and we are working with that. 

Senator BOOZMAN. I don’t mean to interrupt, but one of the frustrations I have, in fact, the administrator of D.C. Water was in testifying not too long ago and he was talking about the requirements 

put on them and the situation of possibly having to implement another requirement that would cost $1 billion for really what I think 

everyone agrees would be very, very little good in the sense of increasing the quality of the water. That is a huge problem; not only 

here, but throughout the Country. Are you aware of that? Will you 

commit to addressing—and, again, you have the difference within 

the regions. 

Mr. KOPOCIS. Yes, Senator. If confirmed, I can commit to continuing the dialog. I have had the pleasure of sitting in on a meeting with the head of D.C. Water. He has a compelling case which 

he has been making and now, of course, that situation is subject 

to a consent decree which would require participation beyond just 

EPA. 
128 

Senator BOOZMAN. Thank you, Madam Chair. 

Senator BOXER. Thank you. 

Senator Cardin, your turn for questions. 

Senator CARDIN. Thank you, Madam Chair. 

I thank all of our witnesses for their response to the questions 

that have been asked by the members of the committee. It is interesting. There is going to be different views on this committee on 

the interpretation of laws. On navigable waters, put me down for 

the Senator who believes that traditional understanding is what 

should be done. We should regulate the waters that are appropriate 

for public safety and health and that the Administration is trying 

to move in that direction. 

I also want to just underscore the point, Madam Chairman, that 

I hear Senators on both sides of the aisle talk about the importance 

of predictability, of getting guidance. They say even if we don’t like 

what the rules are, the public has to know what the rules are; and 

I think this Administration is trying to move in that direction to 

give some predictability to the laws. 

But on navigable waters, to me, what we always thought the law 

to be, what the rule should be, made sense, and I would hope that 

we would allow the Environmental Protection Agency to carry out 

its responsibility. 

The three individuals that are before us, their qualifications have 

not been challenged by any member of this committee. The record 

hasn’t been challenged. They are in public service because they believe in public service, and they want to continue in public service. 

So none of that has really been challenged. 

The challenge appears to be in different interpretations on how 

our laws should be applied. And that is legitimate. It is legitimate 

for us as oversight to deal with that. But we are in much stronger 

position, as the legislative branch of Government, when we have a 

confirmed head of an agency to deal with, rather than acting head 

of an agency. 

And we can go through this again and continue to just have acting heads, and we will continue to hear from the public their outrage about the uncertainty and the lack of accountability. We are 

in better shape if we carry out our responsibility. And our responsibility is twofold here, Madam Chairman. One is for us to consider 

these nominations based upon their qualifications. And unless 

there is an extraordinary reason to the contrary, none of which 

have been shown on these three nominees, to allow an up or down 

vote on the floor of the U.S. Senate in a timely manner. 

Then, second our responsibility, and here is where I am going to 

concur with my friends on the other side of the aisle, we have an 

oversight responsibility. We have a responsibility to challenge the 

way that the Administration is administering the laws. We also 

have an opportunity to change those laws, and we should take advantage of it. And I want to compliment the Chair of this committee because she has been open to that during her chairmanship. 

She has given every opportunity for us to carry out our responsibilities. 

But I get a little testy on this case because one of the nominees 

has been waiting 2 years. He was nominated 2 years ago. It is not 

like a person we don’t know. We know him well and we respect 
129 

him greatly on both sides of the aisle. And the challenge has been 

that some don’t like the Agency. Not the person, not the person’s 

view, not the person’s competency; we don’t like the Agency and we 

still believe that we can affect that through the nomination process 

by holding up nominees, which to me makes very little sense. 

So, Madam Chair, I don’t have any specific questions, but I just 

wanted to underscore the point that I think we should carry out 

our responsibility, and I strongly support the three nominees and 

I hope that we can move them promptly to the floor. 

Senator BOXER. Thank you. 

So I am going to ask each of you now to respond yes or nay to 

each of these three questions. 

Senator BOOZMAN. Madam Chair. Madam Chair, could I just ask 

that I have some additional questions? 

Senator BOXER. We are going to have all the questions—— 

Senator BOOZMAN. Not now, but to be submitted. 

Senator BOXER. Oh, I am going to lay that out. We have to get 

all the questions in by Thursday at 5 p.m. I am going to ask the 

nominees please to answer them very quickly. I have begun discussions staff-to-staff with Senator Vitter. We are hoping, if those answers come back and there is some satisfaction here, that we can 

move to a vote. We are hopeful, very hopeful. 

The answers from you, 10 a.m. on Monday. 

But let me close by saying this. I know you are going to laugh 

at this, but for this committee, both sides of the aisle, you are a 

dream team, because Mr. Kopocis has worked on WRDA 2007 and 

worked in the most bipartisan fashion I have ever seen to that 

point. Mr. Jones has served with, I believe, five different Presidents—is that right?—over the years, Republicans, Democrats. And 

Mr. Garbow has shown his interest in public sector/private sector, 

working with some of the biggest corporations. So there is no reason to hold it up. 

So I am going to ask each of you do you agree, if confirmed, to 

appear before this committee or designated members of this committee and any other appropriate committees of the Congress and 

provide information subject to appropriate and necessary security 

protection with respect to your responsibilities? 

Mr. KOPOCIS. Yes, I do. 

Mr. JONES. Yes. 

Mr. GARBOW. Yes. 

Senator BOXER. Do you agree to ensure that testimony, briefings, 

documents, and electronic and other forms of communication of information are provided to this committee and its staff and other appropriate committees in a timely fashion? 

Mr. KOPOCIS. Yes. 

Mr. JONES. Yes. 

Mr. GARBOW. Yes. 

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

may not have disclosed that might place you in any conflict of interest if you are confirmed? 

Mr. KOPOCIS. No. 

Mr. JONES. No. 

Mr. GARBOW. No. 
130 

Senator BOXER. OK. I am going to turn the gavel over to Senator 

Cardin because there are colleagues that still want to do some 

more questions. I just want to say, and you can tell from what I 

have said, that I am proud of you all, I am proud of your families, 

and I really am going to do everything in my power to personalize 

this, if it gets to that, to make the case that we need you in your 

positions. 

So, with that, I will call on Senator Vitter for his second round 

and I will give the gavel to Senator Cardin, ask him to move over 

here, if he would. 

Senator VITTER. Thank you, Madam Chairman. 

Mr. Garbow, as you know, a big set of concerns of Republicans 

on the committee has been the need for increased transparency and 

accountability. That touches a number of different issue areas affecting your office, including handling FOIA requests. One of the 

most disturbing emails we came across in doing this work was 

about a FOIA request, and out of your office, the top legal office 

of EPA came an email with regard to a FOIA request: ‘‘Unless 

something has changed, my understanding is that there are some 

standard protocols we usually follow in such FOIA requests. One 

of the first steps is to alert the requester that they need to narrow 

their request because it is over-broad and, secondarily, that it will 

probably cost more than the amount of dollars they agreed to pay. 

Unless and until they respond to that and tell us they will pay 

more, we usually tell them in writing that we are suspending our 

response to their request until they get back to us.’’ 

Now, this was not a suggestion about a specific request. As is 

very clear, this is a description of ‘‘standard protocols.’’ Do you 

think that is appropriate? 

Mr. GARBOW. I do not, Senator, and I can tell you that, if confirmed, the only standard of practice with respect to FOIA that I 

will condone and promote in the Office of General Counsel is to 

look at the request and to apply the law. 

Senator VITTER. And in the case of this particular email, what 

was the consequence of this advice and this email coming from this 

individual in your office? 

Mr. GARBOW. I am unfamiliar with the email, Senator, so I don’t 

know what the consequence was. 

Senator VITTER. Well, if you could get back to us regarding any 

negative consequence related to that email because, to date, I know 

of none. 

Mr. GARBOW. I will look into that, Senator. 

Senator VITTER. And that is re-asking a question we sent in writing 4 months ago and has not been responded to. 

Now, pursuant to sort of discussion related to Gina McCarthy’s 

nomination, EPA has agreed to move forward with mandatory retraining of their work force on FOIA, on records management, on 

the use of personal email accounts, and you have agreed to issue 

new guidance pending completion of an audit by the inspector general. Can you apprise us of the progress of all of that and your commitment to it? 

Mr. GARBOW. Senator, I would be happy to tell you what I know. 

With respect to what I think is the inspector general’s audit dealing with electronic records management, it is my understanding 
131 

that we have not yet received a final report from them. Our office 

will certainly carefully review it, and I look forward to seeing whatever recommendations come from that process. 

With respect to FOIA training, it is my understanding though 

the FOIA training is generally administered through a different office at the Agency, that we have committed to you and others to 

do Agency-wide FOIA training by the end of this year. I have not 

heard that we are on any other schedule other than that, but I 

don’t have any further information to provide you at this point in 

time. 

Senator VITTER. OK. And what about your personal commitment 

to these exercises? 

Mr. GARBOW. I am absolutely, Senator Vitter, committed to ensuring that folks in the Agency are well trained, timely trained on 

FOIA and any other matters of legal concern. I will, of course, take 

our responsibilities in the General Counsel’s Office, if confirmed, 

very seriously. So I do think that we ought to pursue these sorts 

of transparency things that I think can enhance the interests of the 

United States. 

Senator VITTER. And will the Office of General Counsel, and you 

personally, be directly involved in all of that? 

Mr. GARBOW. Senator, I will be as involved as I can. I don’t know 

that our office has a pivotal role in each of the items that you have 

mentioned, but I do think we do have a role. We will certainly provide advice and support, both as needed, and I will make it a special effort on my own, if confirmed, to make sure to track and to 

look into those things. 

Senator VITTER. OK, thank you. That is all I have. 

Senator CARDIN [presiding]. Senator Fischer. 

Senator FISCHER. Thank you, Senator. 

I just have a short question for Mr. Jones and Mr. Garbow. I 

didn’t want you to feel left out or that I was slighting you in any 

way, so I wanted you to be included. 

Mr. Jones, I am concerned about the process for granting partial 

exemptions from the chemical data reporting requirements of the 

Toxic Substances Control Act. Although the regulations anticipate 

a review period of 120 days, I know of several people who are still 

waiting for a decision from EPA after more than 600 days. I am 

asking if you will work with the committee to find ways where we 

can reduce this problem, and will you assure timely consideration 

of these petitions? 

Mr. JONES. Thank you, Senator Fischer. Yes, the situation that 

you are describing came to my attention just a week ago or so. As 

you may know, we were, last year at this time, the reporting was 

being required of manufacturers, and as we were focusing on the 

reporting implementation, we lost sight of someone was requesting 

an exemption for the next reporting cycle, which is actually 2013 

to 2016. It has been brought to our attention and we are going to 

work to make a decision on the exemption requests in front of us 

within the next month. But I would be happy to work with the 

committee to ensure that in the future we do not lose sight of timely requests of any form. 

Senator FISCHER. Thank you. As you know, I am new to the Senate, I am new to the committee, so I find the hearing process need-
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ed for all members to have a chance to ask questions and get the 

responses on the record, so thank you. 

What specifically would you recommend doing to try and expedite that process? 

Mr. JONES. Thank you, Senator Fischer. So in this case I think 

it was really about losing track of something in front of us. The 

other crush of business became a distraction, so it is really about 

ensuring we have appropriate tracking. If this had been in front of 

management, I think we could have disposed of it rather quickly. 

This particular request was not very complex. But having an appropriate tracking system in place would, I think, solve the problem. 

Senator FISCHER. Thank you, sir. 

Mr. Garbow, I do appreciate you coming to my office, and I appreciated the conversation that we were able to have there. At that 

time I talked about the aerial surveillance over a number of livestock operations in the State of Nebraska and the concern that 

those people felt it was a violation of their privacy. But there are 

also concerns because homes are near these operations, so people 

have, I guess, a reasonable expectation of privacy, especially with 

regards to their families and their family home. How would you address those concerns and where do you see this going in the future? 

Mr. GARBOW. Thank you, Senator, and I also appreciate the conversation we were able to have when we last met. 

I think that I and the Agency takes very seriously the privacy 

concerns expressed by you on behalf of your constituents and other 

Americans, and certainly with respect to the issue of aerial overflights the key issue certainly that we in the Office of General 

Counsel need to focus on is what happens, if you will, to any 

records, pictures, etcetera, that result from those activities. I think 

they need to be treated with care. We need to examine, upon any 

request, whether there are any exemptions relating to privacy or 

otherwise that might apply to them, and I think we have to carefully apply the law. 

So in terms of where this is heading, the actual overflights are 

not run out of the Office of General Counsel. I am certain that 

there is an important communication element, an element relating 

to stakeholder involvement and understanding, but I also think 

that we need to be very focused on those very privacy concerns that 

you have addressed. 

Senator FISCHER. I guess I would ask you again, though, where 

do you see it headed? Do you know that there was a release of very 

private information, confidential information, from a number of 

people involved in agriculture and that it was called back? That 

doesn’t make it better. It is not all good that you release the information and you call it back. So what are you going to put in place 

to make sure this doesn’t happen again? 

Mr. GARBOW. Thank you, Senator. The release that I think you 

are referring to, of course, didn’t happen in connection with overflights. 

Senator FISCHER. The overflights, correct. 

Mr. GARBOW. It was a separate information request. 
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Senator FISCHER. But you also commented on the information 

you gained from these aerial surveillance and the privacy concerns 

with those as well. 

Mr. GARBOW. That is right. I think at its core, Senator, the Agency needs to carefully look at its FOIA practices. I should also note 

that aside from the training that the Agency is undergoing with respect to FOIA, including, of course, the lawful of application of any 

and all exemptions, how we have to look at those, that I have recently learned that our Inspector General’s Office will also be looking into Agency’s practices with respect to release of records. So we 

will look forward to the results of that audit. 

Senator FISCHER. Thank you, and thank all three of you gentlemen, and thank you to your families for being here today and supporting them. Thank you so much. 

Senator CARDIN. I repeat our thanks for your patience and your 

willingness to put your names forward to serve our Country in a 

very important agency, the Environmental Protection Agency. 

The chairman has already announced the deadlines when questions can be submitted for the record. We hope members will exercise restraint here so that you can have a somewhat peaceful weekend, but you never know. 

Again, we thank you and, with that, the committee will stand adjourned. 

[Whereupon, at 11:43 a.m. the committee was adjourned.] 

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