U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

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

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

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

94–980 PDF 2015

S. HRG. 114–21 

OVERSIGHT HEARING: THE PRESIDENT’S 

FISCAL YEAR 2016 BUDGET REQUEST FOR 

THE U.S. ENVIRONMENTAL PROTECTION AGENCY 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MARCH 4, 2015 

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

( 

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

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

(III) 

C O N T E N T S 

Page 

MARCH 4, 2015 

OPENING STATEMENTS 

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

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

WITNESSES 

McCarthy, Gina, Administrator, United States Environmental Protection 

Agency, Accompanied By: David Bloom, Acting Chief Financial Officer, 

Environmental Protection Agency ...................................................................... 6 

Prepared statement .......................................................................................... 8 

Response to an additional question from Senator Booker ............................ 14 

Responses to additional questions from: 

Senator Fisher .................................................................................................. 14 

Senator Inhofe .................................................................................................. 17 

Senator Wicker ................................................................................................. 46 

ADDITIONAL MATERIAL 

Articles: 

New York Times: Scientists Warn of Rising Oceans From Polar Melt ........ 147 

UCIrvine News: West Antarctica Melt Rate Has Tripled; UCIrvineNASA ............................................................................................................. 151 

AGU Publications, Geophysical Research Letters; Mass loss of the 

Amundsen Sea Embayment of west Antarctica from four independent 

techniques ...................................................................................................... 154 

Report, Sciencexpress: Ice Shelf Melting Around Antarctica ............................... 163 

(1) 

OVERSIGHT HEARING: THE PRESIDENT’S FISCAL YEAR 2016 BUDGET REQUEST FOR THE 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

WEDNESDAY, MARCH 4, 2015 

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

The committee met, pursuant to notice, at 9:32 a.m. in room 406, 

Dirksen Senate Building, Hon. James Inhofe (chairman of the committee) presiding. 

Present: Senators Inhofe, Vitter, Capito, Boozman, Sessions, 

Wicker, Rounds, Sullivan, Boxer, Cardin, Whitehouse, and Markey. 

OPENING STATEMENT OF HON. JAMES INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. The meeting will come to order. 

We appreciate very much, Administrator McCarthy, your being 

here. We will have a lot of things to talk about, agreements and 

disagreements. 

The EPA is proposing to cut $333 million from the Clean Water 

State Revolving Loan Fund which provides grants and loans for 

wastewater treatment. This is one of the programs that back in my 

State, and I am sure in other States, that is very popular and one 

in which we are very much involved. 

EPA is 3 years behind in reporting to Congress on wastewater 

and storm water needs. However, it doesn’t stop EPA from pursing 

its new waters of the US rule on which we had a hearing. I have 

to say, in my State of Oklahoma, the Farm Bureau and the other 

ag groups find that to be the one that is the most offensive to them 

and is going to be the biggest problem. 

The President’s budget proposes a 66 percent cut in the Diesel 

Emissions Reduction Grant Program, which Senator Carper, who 

will be here shortly, I am sure, and I work to fund each year. Voluntary diesel engine retrofits through matching funds are a cost effective way of reducing diesel engine pollution which EPA estimates causes 15,000 premature deaths each year. 

EPA consistently misses its statutory deadline for proposing and 

finalizing renewable volume obligations for refiners, creating significant uncertainty and volatility buying and selling Renewable 

Identification Numbers or RINs, which are the credits used as 

proof of compliance with the Renewable Fuels Standard. 

2 

The President’s budget cuts Superfund, Homeland Security Preparedness and Response while he is out saying that terrorism is 

less of a threat to the American people than climate change. In 

fact, EPA also intends to pursue a legislative proposal for an additional $4 billion in mandatory spending for EPA to enforce its climate change regulations which 32 States oppose and will result in 

double digit electricity price increases in 43 States. 

Mandatory spending would mean that EPA would hand out 

money with no congressional oversight. The President requests 

$3.5 million for 20 new attorneys because, ‘‘Each EPA action is expected to be challenged in court, which will require skilled and experienced attorneys specialized in the Clean Air Act to devote significant resources to defense of these actions.’’ 

I think that was your quote, Madam Administrator. These attorneys would defend a climate change rule which, according to EPA’s 

own consistent testimony, will not affect climate change. 

In fact, the Clean Power Plan would reduce CO2 concentrations 

by less than 1 percent, reduce global temperature rise by less than 

0.016 degrees Fahrenheit, and reduce sea level rise by the thickness of three sheets of paper. 

If we would like to point to our international agreement with 

China as proof that global concentrations will change, it is important to keep in mind that China emits 800 million tons of CO2 per 

month while the Clean Power Plan reduction would be 550 million 

tons per year. We are talking about 550 million tons per year as 

opposed to 800 million tons a month from China. 

In November, EPA proposed lowering the ozone standard when 

the current standard is not implemented in 40 percent of the Country. Manufacturers will not be able to expand. 

I remember years ago, we did a study in Oklahoma on what it 

would really mean if we had to go into a non-attainment status. 

It would be something very, very damaging. When we had the 

standards of 75 ppm, I will ask you to respond, how many States 

have not complied with the 2008 standards before we even go into 

more stringent standards. 

Members of the committee and I are looking forward to questioning the EPA’s priorities on the regulatory agenda. 

Senator Boxer. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES INHOFE, U.S. SENATOR

FROM THE STATE OF OKLAHOMA

‘‘Administrator McCarthy, thank you for appearing this morning. 

The President’s $8.6 billion proposal to fund the EPA represents a $452 million 

increase from last year’s enacted levels but sacrifices core responsibilities in the pursuit of new regulations. 

EPA proposes cutting $333 million from the Clean Water State Revolving Loan 

Fund which provides grants and loans for wastewater treatment and pollution control. EPA is 3 years behind in reporting to Congress on wastewater and storm water 

needs. However, it doesn’t stop EPA for pursing its new waters of the US rule which 

EPA cannot ensure us doesn’t expand its authority over isolated ponds, storm sewer 

systems, water reuse systems, roadside ditches, rock quarries, farm activities, and 

even backyard creeks. 

The President’s budget proposes a 66 percent cut to the Diesel Emissions Reduction Grant Program which Senator Carper and I work to fund each year. Voluntary 

diesel engine retrofits through matching funds are a cost effective way of reducing 

3 

diesel engine pollution which EPA estimates causes 15,000 premature deaths each 

year. 

EPA consistently misses its statutory deadline for proposing and finalizing renewable volume obligations (RVO) for refiners creating significant uncertainty and volatility buying and selling Renewable Identification Numbers (RINs), which are the 

credits used as proof of compliance with the Renewable Fuels Standard (RFS). 

The President’s budget cuts Superfund Homeland Security Preparedness and Response while he is out saying that terrorism is less of a threat to the American people than climate change. In fact, EPA also intends to pursue a legislative proposal 

for an additional $4 billion in mandatory spending for EPA to enforce its climate 

change regulations which 32 states oppose and will result in double digit electricity 

price increases in 43 states. Mandatory spending would mean that EPA would hand 

out money with no congressional oversight. The President requests $3.5 million for 

20 new attorneys because, ‘‘each EPA action is expected to be challenged in court, 

which will require skilled and experienced attorneys specialized in the Clean Air Act 

to devote significant resources to defense of these actions.’’ These attorneys would 

defend a climate change rule which, according to EPA’s own consistent testimony, 

will not affect climate change. 

In fact, the Clean Power Plan would reduce CO2 concentrations by less than a 

percent, reduce global temperature rise by less than 0.016 degrees Fahrenheit, and 

reduce sea level rise by the thickness of three sheets of paper. If we would like to 

point to our international agreement with China as proof that global concentrations 

will change, it’s important to keep in mind that China emits 800 million tons of CO2

per month while the Clean Power Plan reduce 550 million tons per year. 

In November, EPA proposed lowering the ozone standard when the current standard is not implemented in 40 percent of the country. Manufacturers won’t be able 

to expand and with a non-attainment designation, federally supported highway and 

transit projects, both new capacity and in-progress projects, will be halted. This only 

increases cost of existing expansions, complicates the ability to quickly respond to 

congestion, and reduce states’ competitiveness for additional expansion opportunities. 

The members of this Committee and I are looking forward to questioning EPA’s 

priorities and regulatory agenda.’’ 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. Thank you very much, Senator. 

Welcome, Administrator McCarthy. Thank you for your dedication and devotion to your work, to the American people, to clean 

air, clean water, safe drinking water, and making sure that we 

treat this planet the way it deserves to be treated so that our 

grandchildren can actually have a decent quality of life. 

EPA has a vital mission that affects the well-being of every 

American: implementing our Nation’s landmark laws. I mentioned 

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

water quality in America’s lakes and rivers. The health and safety 

of our children and families depends on the critical work you do 

and the way we support you or fail to support you. 

I am pleased that EPA’s budget request of $8.6 billion includes 

a $452 million increase above the Fiscal Year 2015 enacted level, 

but we need to remember that 6 years ago, EPA’s budget was $10.3 

billion, and the Fiscal Year 2016 budget request that we will discuss today is a 20 percent cut from that level. EPA is being asked 

to do more rather than less. I think it is important for us to keep 

that in mind. 

Yes, I think my colleague is right. The budget does place an important focus on combating dangerous climate change. We are seeing the consequences of climate change all around us, from historic 

droughts to extreme wildfires to vanishing wildlife habitat. We are 

seeing the extreme weather predicted by scientists who sat there 

4 

in 2008 and said, you are going to see more snowfall, more 

droughts and more heat. 

When my friend and colleague went to the floor to show that it 

was cold out and threw a snowball, he said he did it because he 

thinks we are too serious and he wants us to lighten up. 

Senator INHOFE. Since you mentioned my name, I can interrupt 

you here. Yes, we need to lighten up. 

Senator BOXER. Let the record show I quoted him correctly. He 

said ‘‘We need to lighten up.’’ 

Here is the deal. He proved my point and the point of those of 

us who believe climate change is real because we are seeing these 

extreme snowfalls, records are being broken while we are seeing 

extreme heat. That is the weather. The climate is different than 

the weather. We are clearly seeing the rise in overall temperatures. 

This is happening right before us. Last week on the front page 

of the Post, we read that Native villages in Alaska are being 

threatened by deteriorating sea ice. Entire villages will have to be 

moved. One is being moved right now at a cost of upwards of $100 

million. The article warns, ‘‘In the coming decades this could apply 

to numerous other towns.’’ This has happened before. 

Honest to God, I think the only place that doesn’t get it is right 

here but that is the way it is and the way it will continue to be 

for a couple years, that is for sure. 

I want to say EPA is doing essential work on behalf of the American people to address the growing threat of climate change. The 

budget would ensure that State governments have the resources, 

the technical assistance and the incentives to help cut carbon pollution from our Country’s biggest source, power plants. 

I urge you to keep up your good work. You are going to be attacked hard today on this. I know that and I appreciate the fact 

that my colleagues on the Republican side see it differently. I want 

to say that those of us on this committee on our side of the aisle 

feel you have to do this. It is in the law. 

Carbon pollution is pollution. We already know from scientists 

that the co-benefits of reducing carbon mean better health for all 

of our people, regardless of where they live. 

Another important area of EPA’s budget is support for the Nation’s water infrastructure. I commend EPA for proposing funding 

for the Water Infrastructure Financing and Innovation Act, which 

was created last year in the Water Resources Reform and Development Act of 2014. 

I want to thank Senator Vitter, Senator Inhofe, Senator Cardin 

and Senator Carper for going along with this idea. 

This is new financing. It is like TIFIA, it leverages funds. However, I agree with my friend and colleague that this is not a replacement for the State revolving fund. I am very concerned that 

inadequate levels of funding proposed for the State revolving fund 

is going to hurt our people at home. 

Our Nation’s water infrastructure needs far outstrip the funding 

available. The proposed $53.8 million cut to the State revolving 

funds will make this funding gap grow. We are in agreement on 

that, Mr. Chairman. 

EPA is also doing essential work to protect the drinking water 

of 117 million Americans. I believe this clean water rulemakes a 

5 

lot of sense. I want to compliment you and the Corps of Engineers 

for your testimony at the last hearing. It was very contentious. 

The bottom line is we need to make sure that if there is pollution 

upstream, that it does not wind up in the bodies of the people living downstream. We need to protect the Clean, Safe Drinking 

Water Act. One way to do it is by having this rule clarified. 

In closing, EPA has a record that Americans support. You are 

one of the most popular agencies in the Country, whether it is Republicans, Democrats or Independents, because you are fighting for 

the health of the people. 

I think you are doing a great job. I look forward to hearing from 

you later. 

[The prepared statement of Senator Boxer follows:] 

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

FROM THE STATE OF CALIFORNIA

Welcome Administrator Gina McCarthy. EPA has a vital mission that affects the 

wellbeing of every American—implementing our nation’s landmark laws to address 

clean air, children’s health, safe drinking water, toxics, and water quality in America’s lakes and rivers. The health and safety of our children and families depends 

on the critical work you do. 

I am pleased that EPA’s budget request of $8.6 billion includes a $452 million increase above the fiscal year enacted level. But we need to remember that 6 years 

ago, EPA’s budget was $10.3 billion, and the fiscal year budget request that we will 

discuss today is a 20 percent cut from that level. EPA is being asked to do more 

rather than less and it is important to keep that in mind. 

This budget places an important focus on combating dangerous climate change. 

We are already seeing the consequences of climate change all around us—from historic droughts to extreme wildfires to vanishing wildlife habitat. And we are seeing 

extreme weather also predicted by scientists—record snowfalls and record heat. So 

I thank my Chairman for proving that point on the Senate floor recently. That was 

not his intent, but for me he helped my case. 

Last week, on the front page of the Washington Post we read that native villages 

in Alaska are being threatened by deteriorating sea ice. Entire villages will have 

to be moved, which will cost upwards of a hundred million dollars. And the article 

warns that ‘‘in the coming decades [this] could apply to numerous other towns.’’ 

Another important area of EPA’s budget is support for the nation’s water infrastructure. I want to commend EPA for proposing funding for the Water Infrastructure Financing and Innovation Act (WIFIA), which was created last year in the 

Water Resources Reform and Development Act of 2014. This new financing tool will 

help leverage private financing for critical drinking water and wastewater infrastructure projects and can be an important complement to the Clean Water and 

Drinking Water State Revolving Funds. 

However, WIFIA is not a replacement for the State Revolving Funds. I am concerned about the inadequate levels of funding proposed for these programs. Our nation’s water infrastructure needs far outstrip the funding available, and the proposed $53.8 million cut to the State Revolving Funds will make this funding gap 

grow. 

EPA is also doing essential work to protect the drinking water of 117 million 

Americans. The agency’s proposed Clean Water rule will protect those water bodies 

that provide drinking water for 1 in 3 Americans while being clear about which waters are exempt. You have undertaken an open and transparent process that has 

given all sides the opportunity to comment. It is important to incorporate that feedback and finalize this vital rule. 

EPA has a record that Americans support—clean air, clean water, and a healthy 

planet are shared values. I look forward to hearing from Administrator McCarthy 

today. 

Senator INHOFE. Thank you, Senator Boxer. 

Ms. McCarthy, we will recognize you for the reasonable time you 

may take. Then we will open it up to questions. 

6 

STATEMENT OF GINA MCCARTHY, ADMINISTRATOR, UNITED 

STATES ENVIRONMENTAL PROTECTION AGENCY, ACCOMPANIED BY: DAVID BLOOM, ACTING CHIEF FINANCIAL OFFICER, ENVIRONMENTAL PROTECTION AGENCY 

Ms. MCCARTHY. Thank you, Chairman Inhofe, Ranking Member 

Boxer and members of the committee, for the opportunity to appear 

before you to discuss the Environmental Protection Agency’s proposed Fiscal Year 2016 budget. 

I am joined by the agency’s Acting Chief Financial Officer, David 

Bloom. 

The EPA’s budget request of $8.592 billion in discretionary funding for the 2016 Fiscal Year provides resources that are vital to 

protecting human health and the environment, while building a 

solid path forward for sustainable economic growth. 

Since 1970 when EPA was founded, we have seen over and over 

again that a safe environment and a strong economy go hand in 

hand. 

The budget supports essential work to address climate change, 

improve air quality, protect our water, safeguard the public from 

toxic chemicals, support communities’ environmental health, maintain Corps enforcement strengths, support needed research and 

work toward a sustainable future for all Americans. 

Effective environmental protection is a joint effort of the EPA, 

States and our tribal partners. We are setting a high bar for continuing our partnership efforts and looking for opportunities for 

closer collaboration and targeted joint government projects, in planning processes through efforts like E-Enterprise. That is why the largest part of our budget, $3.6 billion or 42 percent, is provided directly to our State and tribal partners. The Fiscal Year 2016 budget request includes an increase of $108 million 

for State and tribal categorical grants. 

This budget requests $1.1 billion to address climate change and 

to improve air quality. These resources will help protect the most 

vulnerable to climate impacts and harmful health effects of air pollution through common sense standards, guidelines, as well as 

partnership programs. 

Climate change is not just an environmental challenge. It is a 

threat to public health, our domestic and global economy and to our 

national and international security. The request supports the 

President’s Climate Action Plan and in particular, the Clean Power 

Plan, which establishes carbon pollution standards for power 

plants. 

In addition, the President’s budget calls for $4 billion for a Clean 

Power State Incentive Fund to support State efforts to accelerate 

carbon pollution reductions in the power sector. 

Protecting the Nation’s water remains a top priority for EPA. In 

Fiscal Year 2016, we will finalize and support implementation of 

the Clean Water rule which will clarify types of waters covered 

under the Clean Water Act and foster more certain and efficient 

business decisions to protect the Nation’s waters. 

Recognizing the need for water infrastructure, the SRF and related efforts are funded at over $2.3 billion. We will work with our 

partners to help communities by focusing on issues such as financial planning for future public infrastructure investments and exVerDate Aug 31 2005 15:24 Aug 13, 2015 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94980.TXT VERN
7 

panded efforts through States to identify financing opportunities 

for resilient drinking water, wastewater and stormwater infrastructure. 

Last month, the agency launched the Water Infrastructure and 

Resilience Financing Center. That is a key component of this expanded effort. We are proposing a multifaceted effort to help our 

communities, including low income neighborhoods, rural communities and communities of color. 

This includes targeted funding and on the ground community assistance through EPA’s regional coordinators and a network of circuit riders. An investment of $16.2 million will help local communities improve safety and security at chemical facilities and prevent 

and prepare for oil spills. 

These efforts represent a shared commitment among those with 

a stake in chemical facility safety and security, ranging from facility owners to first responders. 

The Fiscal Year 2016 budget request will let us continue to make 

a real and visible difference to communities every day. It gives us 

a foundation to improve infrastructure across the Country and it 

will sustain State, tribal and Federal environmental efforts across 

all our programs. 

With this proposed budget, the President is not only sending a 

clear signal about the resources EPA needs to effectively and efficiently work with States and tribes to protect public health and the 

environment, it is also a part of an overall Federal a budget proposal that does not accept the bad public policy embodied in sequestration and does not hold back needed resources and nondefense spending in order to increase needed defense spending or 

vice versa. 

Instead, the President’s proposed Fiscal Year 2016 budget finds 

a path forward to avoid sequestration and properly support both 

domestic and national security interests. 

Mr. Chairman, I thank you for the opportunity to testify and look 

forward to answering questions. 

[The prepared statement of Ms. McCarthy follows:] 

8 


94980.001
9 


94980.002
10 


94980.003
11 


94980.004
12 


94980.005
13 


94980.006
14 

1http://www.gpo.gov/fdsys/pkg/FR–2014–12–24/pdf/2014–30035.pdf 

RESPONSE BY GINA MCCARTHY TO AN ADDITIONAL QUESTION

FROM SENATOR BOOKER

BEACH ACT

Question 1. The BEACH Act authorized the EPA to award grants to eligible 

states, territories, and tribes to develop and implement beach water quality monitoring and notification programs for coastal recreational waters. As a result, EPA’s 

Beach Grants have made nearly $10 million a year available for the past 4 years. 

The program allows for a more standardized approach to the monitoring of water 

quality and the notification of beach goers if the water they are swimming in is unsafe for recreation. 

• What is EPA’s justification for zeroing out funding for the BEACH Act grant 

program? • Given the reduction in EPA’s proposed fiscal year from $10 million to $0, how 

does EPA plan to assist State and local public health officials in identifying, notifying the public of, and ultimately reducing the risk of illness and disease to swimmers at our recreational beaches? 

Response. The agency is proposing to eliminate certain mature program activities 

that are well-established, well understood, and where there is the possibility of 

maintaining some of the human health benefits through implementation at the local 

level. While beach monitoring continues to be important to protect human health, 

states and local governments now have the technical expertise and procedures to 

continue beach monitoring without Federal support, as a result of the significant 

technical guidance and financial support the Beach Program has provided. 

RESPONSES BY GINA MCCARTHY TO ADDITIONAL QUESTIONS

FROM SENATOR FISCHER

Question 1. In your budget justification document you say: 

‘‘In support of the President’s Climate Action Plan, the EPA will work to assist 

other Federal agencies to improve the analysis of climate change issues under 

NEPA, including estimating greenhouse gas emissions associated with Federal actions and consideration of mitigation measures, as well as fostering climate resiliency.’’ 

Are you already implementing CEQ’s draft guidance that would require all Federal agencies to address global climate change in NEPA reviews? 

Response. NEPA currently requires that agencies consider greenhouse gas emissions and climate change in the NEPA process as it would other pollutants. The 

draft CEQ guidance will help promote consistency and efficiency in meeting NEPA 

obligations.1 Our ongoing comments to other agencies reflect the concepts outlined 

in the draft guidance, and are meant to help agencies meet their existing NEPA responsibilities. As noted in the draft guidance, ‘‘Climate change is a fundamental environmental issue, and the relation of Federal actions to it falls squarely within 

NEPA’s focus.’’ 

Question 2. In your role as a reviewer of Environmental Impact Statements developed by other agencies, do you believe you can require other agencies to adopt measures to mitigate global climate change? 

Response. The EPA does not have authority to require other agencies to adopt 

mitigation measures as part of the NEPA process. However, NEPA does require that 

agencies consider appropriate mitigation measures for the environmental impacts 

associated with their proposed actions, and the agency will continue to recommend 

that agencies consider ways to reduce greenhouse gas emissions associated with 

their actions. 

Question 3. Do you think that the draft CEQ guidance would give you the power 

to second-guess a decision by another Federal agency that any effect on global climate change is insignificant and no EIS is needed? 

Response. The EPA’s role is to make recommendations for the other agencies to 

consider as they make their decisions on actions that may impact the environment. 

NEPA requires agencies to carry out their NEPA responsibilities in a manner that 

is reasonable, and the same rule of reasonableness applies to the consideration of 

climate impacts. Embedded in implementing NEPA are the rule of reason, proportionality, and flexibility to provide the agency preparing the analysis and documentation to focus on the issues that are important, hear from all stakeholders and 

consider their input based upon the substance and expertise provided, and exercise 

15 

their professional judgment in projecting the potential environmental—including all 

elements of the human environment which encompass ecological, social, and economic effects of the proposal and any reasonable alternatives. The CEQ’s draft guidance seeks to provide greater clarity to agencies as they carry out their NEPA responsibilities. 

Question 4. Have you done any outreach to stakeholders on the draft CEQ guidance? 

Response. CEQ, as the drafter of the guidance, is managing the public input process. The EPA has not conducted any independent stakeholder outreach. 

Question 5. How will the new guidance affect how EPA complies with NEPA for 

its own actions, such as issuing Clean Water Act permits or developing regulations? 

Response. The EPA is working to ensure that NEPA compliance for our own actions consider, as appropriate and consistent with the draft CEQ guidance, the extent to which the proposed action has associated greenhouse gas emissions, and the 

extent to which adaptation and resilience measures may be necessary in light of expected climate change. Some of the specific actions included in this question, such 

as some Clean Water Act permits and issuing of regulations, do not fall within the 

scope of NEPA because they are specifically exempted by statute, e.g., see Section 

511 (c) of the Clean Water Act. 

RENEWABLE FUELS STANDARDS (RFS)

Question 6. In 2007, Congress put the Renewable Fuel Standard in place for 15 

years, setting a stable policy environment to drive investment and growth in renewable fuel. This approach has guided billions of dollars from around the world and 

here at home toward innovation inside the United States. American agriculture has 

also responded to this investment signal. For example, just this year, 3 cellulosic 

biofuel refineries opened, each co-located with a corn ethanol facility. Each biorefinery is producing clean, cellulosic biofuel. Using specially designed equipment, 

all three facilities use corn stover, an agricultural waste material collected from the 

very same fields that provide corn to ethanol facilities. This didn’t happen by accident. Farmers make planting decisions based on the RFS. Equipment manufacturers’ invest million in R&D perfecting new equipment that can be available to serve 

this market. Congress made a promise in 2007, and it is the EPA’s responsibility 

to uphold that promise with a regulatory process that meets our intent. The 2014 

RVO proposal would have stranded billions of dollars of investment and ripped the 

rug out from under those in the private sector who responded to the investment signals of the RFS. Will your new proposal retain the commitment to American agriculture that we made nearly a decade ago? 

Response. The EPA understands the importance of the RFS program, and is committed to the program’s goals, namely, reducing emissions of greenhouse gases from 

the transportation sector and increasing American energy security. The agency is 

aware that the agricultural community, as well as renewable fuel producers and 

other stakeholders, have invested significant time, energy, and resources into ensuring that the objectives of the RFS program become a reality. Renewable fuel use 

has increased substantially over the past decade, and we have seen significant advancements in renewable fuel production capacity and efficiency, including recent 

advancements in the commercial-scale production of cellulosic biofuel. Congress designed the RFS program to rely primarily on growth in conventional biofuel beginning with its inception in 2006, but then to transition to growth primarily in cellulosic and other advanced biofuel growth for 2015 and beyond. Our proposed standards are consistent with this intent of Congress. 

The annual rule-setting process under the statute has proven to be very challenging, and we recognize that the delay in issuing the 2014 standards has exacerbated uncertainty in the market for both renewable fuel producers and obligated 

parties. However, the EPA is committed to getting this program back on the statutory timeline to provide needed market certainty and support the development and 

use of renewable fuels by completing a rulemaking for the 2014, 2015 and 2016 RFS 

standards by November 30, 2015. 

Question 7. Your staff has recently stated that you anticipate putting out RFS volumes by late June. Do you see that as acceptable? Given that we have biodiesel producers across the country shutting down or idling their plants, why do we need to 

wait another 4 months? If we wait until June we’ve lost another half of a year. 

Response. The EPA recognizes that delays in issuing the rule have contributed 

to uncertainty in the market. We proposed volume standards for 2014, 2015, and 

2016 on June 10, 2015 (80 FR 33100) and are committed to finalizing these standards by November 30, 2015. The agency also will finalize the applicable volume of 

16 

biomass-based diesel for 2017 along the same timeline. By doing so we will get the 

program back on the statutory timeline and establish a more stable footing for the 

program’s future. 

Question 8. Your staff also recently stated that 2014 numbers will be based on 

actual production. What does that mean exactly? Does that mean the volumes will 

be set at the levels that were actually produced under the RFS in 2014? And can 

we assume that we will see growth from there in the biodiesel category in 2015 and 

2016? 

Response. The EPA has proposed 2014 standards that reflect the volumes of renewable fuel that were actually used in 2014, as it is those volumes that are eligible 

to be used to meet applicable standards under the RFS program. The agency did 

so because the 2014 compliance year is now over, and any standard the EPA sets 

for 2014 can no longer influence renewable fuel production or use in that year. Details of how we calculated the 2014 volumes are addressed as part of the proposal 

(80 FR 33100, June 10, 2015). 

Question 9. You recently approved an application from Argentinian companies to 

essentially streamline biodiesel imports from Argentina under the RFS. Why would 

you do that when the overall RFS hasn’t been set for 2 years and the U.S. industry 

is in disarray? It almost shows a disregard for the U.S. companies that we know 

are struggling as a direct result of the delays on the RFS. Can you explain why you 

would do that at this time? Why not wait until the RFS volumes are set and then 

make a decision on the Argentina imports? 

Response. The agency notes that under the existing regulations, biofuels were already being imported from Argentina. The CARBIO plan provides for even more 

oversight to ensure that feedstocks used to produce compliant renewable fuels under 

the program are coming from qualifying land. CARBIO’s plan includes a robust 

tracking program that requires that an independent third party conduct an annual 

survey of the entire biofuel supply chain, from soybean production through intermediate processing, to biodiesel production. This approved plan enhances existing 

regulatory oversight requirements currently applied to qualifying renewable fuels 

being imported from Argentina. 

Question 10. I understand that in setting the annual biodiesel volumes you are 

required under the law to look at production capacity and other factors. So now that 

we know this extra production exists and is likely coming to the United States, how 

will you account for that as you set annual RFS standards for biodiesel? In other 

words, will you increase volumes more aggressively to allow U.S. producers to continue to grow, so that they’re not displaced by these Argentinian imports? 

Response. The proposed biomass-based diesel standards establish minimum volumes for biomass-based diesel to provide additional certainty to the biodiesel and 

renewable diesel industries. The proposed biomass-based diesel standards ensure 

steady growth through 2017. 

All of the RFS standards that we proposed take into consideration domestic production, imports and exports. The market will determine the precise mix of fuels 

and their sources for complying with the standards, as a result of a number of market forces and national biofuel or related policies both here in the U.S. and in other 

countries. Since those market forces and policies change over time, we did not attempt to estimate precisely the resulting volumes that would be imported from specific countries. The proposed standards provide ample room for the growth of biodiesel volumes from domestic production in addition to potential import volumes. 

EPA REGION 7

Question 11. Private Nebraska building contractor entities have shared inquiries 

and questions regarding EPA Region 7, Kansas City, and the utilization of resources 

and personnel enforcing lead paint regulations against Nebraska home and building 

contractors. In particular, private building contractors have expressed concerns involving the manner and rationale of investigations conducted by Region 7 and the 

protocol for fines pursued for stated violations. 

Response. We interpret this to be a statement to provide context to Question 13. 

Question 12. In order to address concerns expressed by Nebraska private contractor interests, I request that EPA provide the following information involving Region 7, Kansas City and the regulation of lead paint in private homes and commercial businesses: 

Response. We interpret this to be a statement to provide context to Question 13. 

Question 13. Please provide a budget breakdown of: 

17 

• The amount of Region 7 funds expended for outreach and education to the building contractor community in Nebraska. • The amount of funds directly tied to educating property owners and building 

contractors on EPA lead paint rules and regulations. • What amount of Region 7’s Budget is dedicated to investigations and pursuit 

of fines? 

Response. Region 7 has responsibilities for various Toxic Substance Control Act 

regulations related to lead-based paint including TSCA Section 402(c), 15 U.S.C. 

Section 2682, Renovation, Repair, and Painting Program (RRP) which addresses 

lead-based paint hazards created by renovation, repair, and painting activities that 

disturb lead-based paint in housing and child occupied facilities built before 1978. 

Within Region 7, the states of Iowa and Kansas have requested and been approved 

for implementing the RRP Program. Neither Nebraska nor Missouri have sought 

such approval and, as such, Region 7 is responsible for direct implementation of the 

regulation in these two states. Additionally, Region 7 is responsible for direct implementation of the TSCA Section 1018, Lead-based Paint Disclosure Rule, in Iowa, 

Nebraska, Kansas and Missouri. This rule is not delegable to states. 

Region 7 implements all agency enforcement and compliance programs (which includes supporting many environmental statutes such as Resource Conservation and 

Recovery Act; Clean Water Act; Safe Drinking Water Act; Clean Air Act; Residential 

Lead-Based Paint Hazard Reduction Act; etc.) and for the Lead Risk Reduction program (which includes supporting the RRP and Disclosure Rule, providing education 

and outreach, implementing lead-based paint activities, and other program-related 

activities). In fiscal year 4, Region 7 dedicated 4.3 FTE and $314,000 to support 

RRP and Disclosure Rule activities (which includes State grant oversight, State 

technical support, outreach/compliance assistance, enforcement, and other related 

activities). In fiscal year 5, Region 7 has allocated 4.3 FTE and approximately 

$275,000 to support RRP and Disclosure Rule activities. While Region 7 receives 

funding for the agency’s programs, Region 7 does not allocate its funding on a stateby-State basis or at an activity level. 

Question 14. Does Region 7 contract with private or commercial entities to investigate reported violations? And Does Region 7 offer financial incentives to individuals who report violations? 

Response. The EPA, through a cooperative agreement with the National Older 

Worker Career Center (NOWCC), utilizes the NOWCC personnel for various activities (i.e. inspections, outreach, administrative support, etc.). The NOWCC is a national non-profit organization which helps to identify and place older workers with 

the EPA through the Senior Environmental Employment Program. Region 7 is a 

participant and provides funding to the SEE Program to obtain support for leadbased paint related inspections and other activities. The personnel provided by the 

NOWCC for the program are considered grant enrollees with the NOWCC. These 

personnel would conduct both routine inspections and inspections assigned as a result of a tip or complaint. 

Region 7 does not offer incentives to individuals who report violations. Individuals 

frequently contact Region 7 to report suspected violations. These individuals are 

generally contractors concerned that non-compliance by others may place them at 

a competitive disadvantage; families concerned about the risks of lead dust to children created through painting or renovation activities in their home; and/or, local 

agencies who have identified painting or renovation activities which they perceive 

to be non-compliant and which may pose risks to children. 

RESPONSES BY GINA MCCARTHY TO ADDITIONAL QUESTIONS

FROM SENATOR INHOFE

OZONE

Question 1. In the proposed rule, you State that EPA will take a series of actions 

in the next year to implement the new standard. (EPA says it will issue guidance 

for State designations within 4 months of finalizing the rule, provide guidance for 

infrastructure SIPs, and propose any needed implementation rules within 1 year.) 

• Approximately how much money, resources, and staff will be required to complete this work in fiscal year 6? 

• Has EPA requested the resources needed to complete all of this work? 

• Where in the budget are these resources requested? 

Response. Within the levels in the fiscal year President’s Budget, the agency requests the resources and FTE necessary to continue its Clean Air Act-prescribed responsibilities to administer and implement the NAAQS. This includes funding for 

18 

review of the ozone NAAQS and for implementation of a potentially revised ozone 

standard, including development of transition guidance and area designation guidance, within current statutory and resource limitations. The agency also will continue consulting with states to determine additional methods to improve the SIP development and implementation process that are within current statutory limitations. 

Question 2. The proposal relies heavily on ‘‘unknown technologies’’ for compliance 

(Table 4–10 in the draft RIA: 66 percent of NOx controls in the East are unknown 

and 70 percent in the West are unknown). However, only ‘‘extreme’’ nonattainment 

areas can include unknowns in their SIPs. 

• How do you expect states to comply with a standard when your agency can’t 

even identify ways to make it feasible? 

• Do you expect states to have to choose between extreme sanctions or self-designating themselves as ‘‘extreme’’ nonattainment areas, accepting all the extreme stationary source requirements that go along with that designation? 

• Your RIA already assumes in the ‘‘known controls’’ that the existing source proposal will be complied with fully, so how is it even remotely possible to achieve your 

proposed standard? 

Response. The EPA’s application of unknown control measures reflects the agency’s experience that some portion of controls to be applied in the future may not 

be currently available but will be deployed or developed over time. The EPA’s application of unknown control measures does not mean the agency has concluded that 

all unknown control measures are currently not commercially available or do not 

exist. Unknown control technologies or measures can include existing controls or 

measures for which the EPA does not have sufficient data to accurately estimate 

engineering costs. In addition, there will likely be some emissions reductions from 

currently unknown control technologies as a result of state-specific rules that are 

not yet finalized. 

Question 3: How much of future attainment relies on ‘‘unknown controls’’? How 

does EPA calculate the cost these future ‘‘unknown controls’’? Why has EPA lowered 

the cost of those unknown controls by half since developing the 2011 ozone rule? 

Response. Following advice from the EPA Advisory Council on Clean Air Compliance Analysis (COUNCIL), in the 2014 analysis EPA relied on a methodology to estimate the cost of unknown controls that used an average cost-per-ton for the needed emissions reductions. The agency agrees with the COUNCIL that the approach 

is both transparent and strikes a balance between the likelihood that some unidentified abatement would be achieved at costs that are lower than average and that 

some would be achieved at costs that are higher than average. 

Question 4. In 2011, President Obama pulled the plug on this same proposal due 

to ‘‘regulatory burdens and regulatory uncertainty.’’ Our economy was still struggling to recover from the recession, and the $90 billion price tag was something even 

he was unable to justify. 

• o you really think that our economy is in better shape now to handle a $3 trillion rule than it was in 2011? 

• What has changed since the President’s decision that signals now is an appropriate time to radically revise the standard before the benefits of the last one have 

been fully implemented? 

Response. Sections 108 and 109 of the Clean Air Act (CAA) govern the establishment, review, and revision, as appropriate, of the NAAQS to protect public health 

and welfare. The CAA requires the EPA to periodically review the air quality criteria the science upon which the standards are based and the standards themselves. 

This rulemaking is being conducted pursuant to these statutory requirements. 

The EPA sets the National Ambient Air Quality Standards at a level that is requisite to protect the public health and welfare, based on the best available science. 

The U.S. Supreme Court ruled in Whitman v. American Trucking Associations, 531 

U.S. 457 (2001), that under Section 109 of the Clean Air Act, the EPA may not consider the costs of implementation in setting standards. 

Under the Clean Air Act, states ultimately determine what local measures may 

be required to address local sources of air pollution. For that reason, the EPA presents an illustrative estimation of the costs and benefits of complying with proposed 

revisions to a NAAQS. EPA estimates that reducing pollution to meet a revised 

ozone NAAQS in 2025 will yield health benefits of $6.4 to $13 billion annually for 

a standard of 70 ppb, and $19 to $38 billion annually for a standard of 65 ppb, except for California, which was analyzed separately. Nationwide costs, except California, are estimated at $3.9 billion in 2025 for a standard of 70 ppb, and $15 billion 

19 

for a standard of 65 ppb. The estimated benefits of a strengthened ozone standard 

outweigh the estimated costs by as much as a ratio of $3.33 to $1. 

For decades, ozone pollution has been reduced by the combined efforts of Federal, 

state, tribal and local governments. The costs and benefits of Federal rules are evaluated during the public process for each rule. More than forty years of experience 

with the Clean Air Act has shown that America can build its economy and create 

jobs while cutting pollution to protect the health of our citizens and our workforce. 

Question 5. Compared to just 4 years ago, EPA has lowered cost estimates for the same stringent ozone standards by as much as $51 billion. Have compliance costs 

for ozone controls really dropped by over 80 percent since 2010? 

Response. The cost estimates for the 2014 proposal are different than the 2010 

reconsideration proposal because we are analyzing changes between different current and proposed standards, air quality, and needed emissions reductions. In part 

because of recent improvements in air quality and Federal and State actions that 

will come into effect over the next decade, meeting the proposed standards will require fewer emissions reductions than the reconsideration, meaning the estimated 

costs are lower. 

Question 6. Over the last 4 years, EPA has slashed its cost estimates for the same 

stringent ozone standards. 

• Has the cost of compliance technologies gone down, or did EPA change the assumptions in its cost-benefit analysis? 

• How much of that reduction is due to projected air quality improvements versus 

changes in EPA’s control cost assumptions? 

Response. The cost estimates for the 2014 proposal are different than the 2010 

reconsideration proposal because we are analyzing changes between different current and proposed standards, air quality, and needed emissions reductions. In part 

because of recent improvements in air quality and Federal and State actions that 

will come into effect over the next decade, meeting the proposed standards will require fewer emissions reductions than the reconsideration, meaning the estimated 

costs are lower. 

Question 7. In 2010, EPA projected that the same ozone standards that EPA is 

now proposing could cost as much as $44 billion per year. These are straight-up, 

added costs to American manufacturing. I’m concerned that, during this slow economic recovery, we are driving manufacturing out of the U.S., to other countries 

with lax environmental standards. In analyzing these proposed regulations, does 

EPA consider the effects of driving manufacturing offshore, to countries with little 

or no environmental controls? 

Response. The EPA sets the National Ambient Air Quality Standards at a level 

that is requisite to protect the public health and welfare, based on the best available 

science. The U.S. Supreme Court ruled in Whitman v. American Trucking Associations, 531 U.S. 457 (2001), that under Section 109 of the Clean Air Act, the EPA 

may not consider the costs of implementation in setting standards. 

Under the Clean Air Act, states ultimately determine what local measures may 

be required to address local sources of air pollution. For that reason, the EPA presents an illustrative estimation of the costs and benefits of complying with proposed 

revisions to a NAAQS. EPA estimates that reducing pollution to meet a revised 

ozone NAAQS in 2025 will yield health benefits of $6.4 to $13 billion annually for 

a standard of 70 ppb, and $19 to $38 billion annually for a standard of 65 ppb, except for California, which was analyzed separately. Nationwide costs, except California, are estimated at $3.9 billion in 2025 for a standard of 70 ppb, and $15 billion 

for a standard of 65 ppb. The estimated benefits of a strengthened ozone standard 

outweigh the estimated costs by as much as a ratio of $3.33 to $1. 

For decades, ozone pollution has been reduced by the combined efforts of Federal, 

state, tribal and local governments. The costs and benefits of Federal rules are evaluated during the public process for each rule. More than forty years of experience 

with the Clean Air Act has shown that America can build its economy and create 

jobs while cutting pollution to protect the health of our citizens and our workforce. 

Question 8. High levels of natural background ozone may cause many otherwise 

clean states, especially in the West, to be unable to meet EPA’s stringent ozone proposal even with costly emission controls. 

• EPA says it can deal with these concerns through its ‘‘exceptional events’’ program. Yet, since 2008, Utah has submitted 12 exception event demonstrations, and 

EPA has yet to approve one. Historically, how many times has the exceptional exceedance policy been used by the states and EPA? How long and what was the cost 

to taxpayers each time it was used? How many times annually do you expect it to 

be needed going forward? 

20 

• EPA also says it can deal with these concerns through ‘‘Rural Transport Areas.’’ 

Yet EPA has no track record for Rural Transport Areas under an 8 hour ozone 

standard like in the proposal. Why should we think the Agency can use Rural 

Transport Areas to provide regulatory relief to states with high background ozone? 

Response. Existing and upcoming EPA regulations and guidance will assist states 

in ensuring background ozone does not create unnecessary control obligations as 

they continue their work to improve air quality. 

Assuming a State can provide an adequate assessment or demonstration to legally 

invoke regulatory relief, there are a few types of CAA-authorized relief that are described in the ozone NAAQS proposal. As examples, an area may be able to rely 

upon the exceptional events provisions of the Act to exclude certain emissions data 

from consideration during the process of area designations under the possible revised NAAQS, which could impact whether an area is designated nonattainment. An 

area also may be able to rely on the international emissions provisions of the Act 

when making attainment demonstrations, which could limit their ultimate control 

requirements. Finally the Administrator can determine that certain qualifying nonattainment areas are Rural Transport Areas, thus eliminating the need for states 

to develop an attainment plan. All of these CAA-authorized provisions have been 

used in the past for implementing ozone standards. 

The states typically submit exceptional events demonstrations between the promulgation of a new or revised NAAQS and the initial area designations for that 

NAAQS, in order avoid designation as a nonattainment area through exclusion of 

data affected by exceptional events. The EPA recognizes the challenges associated 

with developing, submitting and reviewing exceptional events demonstration packages and is actively developing Exceptional Events Rule revisions and additional 

guidance on demonstrating ozone-related exceptional events associated with wildfire, which we anticipate proposing in the fall of 2015 and finalizing in the summer 

of 2016. This schedule will ensure the final rule revisions and ozone-related guidance are available in advance of implementation activities (e.g., Governors’ designation recommendations) for any potential new or revised ozone NAAQS. Because 

states submit exceptional events demonstration packages directly to their reviewing 

EPA regional office, the EPA does not have a national tracking system for the submission, review, and expended resources associated with the exceptional events 

process. Some air agencies and EPA regions have developed their own processes, 

systems, and criteria to track exceptional event-related information. 

Question 9. Yellowstone national park’s current ozone level is 66ppb—— 

• Is the Agency considering setting a standard that is below the current ozone 

levels at Yellowstone National Park? • I understand EPA has been criticized regarding the way background ozone concentrations are calculated and used. What steps is the agency taking to improve 

that process? 

Response. Based on a significantly expanded body of scientific evidence, including 

more than 1,000 new studies since the last review of the standards, the EPA is proposing that the current primary ozone standard set at a level of 0.075 ppm is not 

requisite to protect public health with an adequate margin of safety, and that it 

should be revised to provide increased public health protection. This proposed conclusion is supported by the independent group of science experts who form the Clean 

Air Science Advisory Committee (CASAC). Specifically, the EPA is proposing to revise the level of that standard to within the range of 0.065 ppm to 0.070 ppm to 

increase public health protection, including for ‘‘at-risk’’ populations such as children, older adults, and people with asthma or other lung diseases, against an array 

of ozone-related adverse health effects. For short-term ozone exposures, these effects 

include decreased lung function, increased respiratory symptoms and pulmonary inflammation, effects that result in serious indicators of respiratory morbidity such as 

emergency department visits and hospital admissions, and non-accidental mortality. 

For long-term ozone exposures, these health effects include a variety of respiratory 

morbidity effects and respiratory mortality. 

Existing and upcoming EPA regulations and guidance will assist states in ensuring background ozone does not create unnecessary control obligations as they continue their work to improve air quality. 

Question 10. I understand that EPA does not exclude Mexican and Canadian 

ozone emissions when it determines background levels of ozone. What could a county in my district due to control emissions in a foreign country? 

Response. Existing and upcoming EPA regulations and guidance will assist states 

in ensuring background ozone does not create unnecessary control obligations as 

they continue their work to improve air quality. For purposes of implementing the 

ozone standards, sources of ozone precursor emissions emanating from outside the 

21 

U.S. are considered background sources. The CAA contains attainment planning 

provisions that allow states to account for international emissions that are beyond 

their control. If used appropriately, these provisions could limit the ultimate control 

requirements that would apply to local sources. These CAA provisions have been 

used in the past in implementing the ozone standards. 

Question 11. High levels of ozone transported from Asia and Mexico may mean 

that many otherwise clean states, especially in the West, will be unable to meet 

EPA’s stringent ozone proposal even with costly emission controls. EPA says it can 

deal with these concerns through Clean Air Act provisions on international transport. 

• EPA has been notoriously slow in providing states similar regulatory relief for 

natural ozone under the Exceptional Events Program. Why should states believe 

that EPA will be any better in approving regulatory relief for international ozone 

transport? 

• Will EPA commit to not designate as nonattainment any counties that fail the 

proposal’s ozone standards because of international transport? 

Response. Existing and upcoming EPA regulations and guidance will assist states 

in ensuring background ozone does not create unnecessary control obligations as 

they continue their work to improve air quality. 

Assuming a State can provide an adequate assessment or demonstration to legally 

invoke regulatory relief, there are a few types of relief that are included in the proposal. As examples, an area may be able to rely on existing CAA-authorized provisions to obtain relief from designation as a nonattainment area, or relief from adopting additional controls to demonstrate attainment. 

Question 12. EPA halted implementation of the 2008 ozone standard from 2010– 

2012 while it reconsidered that standard. That delay put State implementation of 

the 2008 ozone standard well behind the normal schedule. States are now committing time and money to catch up on the 2008 ozone standard. In fact, EPA just 

issued the implementation rules for the 2008 standard on February 13, 2015. Why 

is EPA proposing new ozone standards when it hasn’t given states a chance to implement the current ones? 

Response. Sections 108 and 109 of the Clean Air Act (CAA) govern the establishment, review, and revision, as appropriate, of the NAAQS to protect public health 

and welfare. The CAA requires the EPA to periodically review the air quality 

criteriathe science upon which the standards are based and the standards themselves. This rulemaking is being conducted pursuant to these statutory requirements. 

Question 13. EPA chose to project the costs of its proposed ozone standard to 

2025, 8 years after counties will be designated as nonattainment areas under the 

proposal. 

• What consequences will those counties face while designated nonattainment? 

• Does EPA’s modeling capture the cost of lost economic activity that counties in 

nonattainment areas will experience during those 8 years? 

Response. The Clean Air Act provides for a range of actions to take place when 

an area is designated nonattainment. The specifics are discussed in further detail 

in section VII.4 of the preamble to the proposed rule (Nonattainment Area Requirements beginning on 79 FR 75373). 

Consistent with Executive Order 12866, and OMB guidance, the EPA prepared a 

Regulatory Impact Analysis accompanying the proposed updates to the ozone 

NAAQS that shows the benefits and costs of illustrative control scenarios that states 

may choose in complying. Because states have flexibility in how to meet their goals, 

the actions taken to meet the goals may vary from what is modeled in the illustrative scenarios. Specific details, including information about how costs and benefits are estimated for these illustrative scenarios are available in the RIA (http:// 

www.epa.gov/ttn/ecas/regdata/RIAs/20141125ria.pdf). 

Question 14. EPA chose to project the costs of its proposed ozone standard to 

2025, saying that would be the year in which most counties would have to attain 

the standards if granted compliance extensions. 

• Since EPA bases its entire economic analysis on these assumed extensions, will 

the Agency commit to extending compliance deadlines to the maximum extent possible when finalizing the ozone standards? 

• If EPA assumed longer compliance deadlines, shouldn’t it write those compliance 

extensions into the final rule? 

Response. The EPA intends to take action to provide for compliance flexibility 

similar to what has been provided under prior standards. 

22 

Question 15. EPA reassures that counties won’t be designated as nonattainment 

areas under its proposed stringent ozone standards for another 3 years. But won’t 

those new standards be immediately effective on PSD permits, making it harder for 

business to build and expand facilities to create new jobs? 

Response. New or modified major stationary sources that must get a PSD permit 

must show that the project will not cause or contribute to a violation of a revised 

ozone standard upon the effective date of that standard. The EPA has proposed a 

grandfathering provision for PSD permit applications that are administratively complete before the new NAAQS is signed, or where a draft permit or preliminary determination has been published before the effective date of a revised standard. 

Those in-pipeline permit applications meeting the qualification criteria in EPA’s 

final rule would not need to be revised in order to be approved. 

Question 16. EPA has said that most counties won’t need to attain its stringent 

ozone standards until 2025. But counties in nonattainment areas will face severe 

regulatory consequences in just 3 years, and the new standards become immediately 

effective for permits to expand business. EPA seems to want us to think these proposed standards are a ‘‘next decade’’ problem, but aren’t they a now problem? 

Response. Approximately 2 years after a standard is revised, the EPA is required 

to determine attainment and nonattainment areas. For areas designated nonattainment, additional preconstruction permitting requirements must be implemented 

and, depending on the severity of the poor air quality in the area, the State must 

begin developing attainment plans for the area. The first attainment deadline under 

the Act is 3 years following designation, which would be by the end of 2020 if areas 

are designated in the fall of 2017. This attainment deadline would apply only to 

those areas with air quality closest to the standard at the time of designation and 

such areas would not be required to develop an attainment plan. 

Question 17. EPA can’t even point to controls capable of almost half the emissions 

reductions needed in the east and all of the reductions required in California to 

meet its stringent proposed ozone standard. This sounds like shoot first, ask questions later rulemaking. Should we be imposing this much burden on the American 

people when EPA doesn’t even know how this rule can be accomplished? 

Response. The U.S. Supreme Court ruled in Whitman v. American Trucking Associations, 531 U.S. 457 (2001), that under Section 109 of the Clean Air Act, the EPA 

may not consider the costs of implementation in setting National Ambient Air Quality Standards. The Court indicated specifically that EPA was not to consider potential job losses due to implementation of a standard, even if such job losses ‘‘might 

produce health losses’’. 531 U.S. at 466. Moreover, if EPA were to consider such 

costs, it would be ‘‘grounds for vacating the NAAQS, because the Administrator had 

not followed the law’’. Id. at n. 4. 

Under the Clean Air Act, states ultimately determine what local measures may 

be required to address local sources of air pollution. For that reason, the EPA presents an illustrative estimation of the costs and benefits of complying with proposed 

revisions to a NAAQS. EPA estimates that reducing pollution to meet a revised 

ozone NAAQS in 2025 will yield health benefits of $6.4 to $13 billion annually for 

a standard of 70 ppb, and $19 to $38 billion annually for a standard of 65 ppb, except for California, which was analyzed separately. Nationwide costs, except California, are estimated at $3.9 billion in 2025 for a standard of 70 ppb, and $15 billion 

for a standard of 65 ppb. The estimated benefits of a strengthened ozone standard 

outweigh the estimated costs by as much as a ratio of $3.33 to $1. 

For decades, ozone pollution has been reduced by the combined efforts of Federal, 

state, tribal and local governments. More than forty years of experience with the 

Clean Air Act has shown that America can build its economy and create jobs while 

cutting pollution to protect the health of our citizens and our workforce. 

Question 18. EPA’s modeling for its proposed stringent ozone standards caps costs 

for emissions reductions required from so-called ‘‘unknown controls’’ based on costs 

of known controls. This defies the basic economics of increasing marginal costs. Does 

EPA really believe that the costs of reaching the highest low-hanging fruit are the 

same as those to get the fruit at the top of the tree? 

Response. Following advice from the EPA Advisory Council on Clean Air Compliance Analysis (COUNCIL), in the 2014 analysis EPA relied on a methodology to estimate the cost of unknown controls that used an average cost-per-ton for the needed emissions reductions. The agency agrees with the COUNCIL that the approach 

is both transparent and strikes a balance between the likelihood that some unidentified abatement would be achieved at costs that are lower than average and that 

some would be achieved at costs that are higher than average. 

Question 19. We hear a lot about the need to repair ‘‘crumbling roads and 

bridges.’’ However, stringent ozone standards could make it harder for states to 

23 

show that proposed highway project ‘‘conform’’ with ozone standards. Has EPA considered the economic and safety impacts that could result if these stringent ozone 

standards block crucial transportation projects? 

Response. Road maintenance and safety projects are exempted from transportation conformity requirements. The transportation conformity rule provides exemptions for a number of project types that address needed repairs and the need to improve highway safety. These include: 

• reconstructing bridges as long as the number of travel lanes is not increased; 

• pavement resurfacing and/or rehabilitation; 

• pavement marking; 

• projects that correct, improve or eliminate a hazardous location or feature; 

• projects that increase sight distance; 

• installation of guardrails, median barriers and crash cushions; 

• lighting improvements; and 

• projects that improve safety at railroad crossings. 

The EPA places a high priority in assisting areas to determine exempt projects 

and to make required conformity determinations for other projects. 

Question 20. According to EPA, ozone-forming emissions have been cut in half in 

the last three decades. This progress will continue under current regulations. 

Wouldn’t you agree that Americans are already enjoying the benefits of cleaner air, 

and will enjoy even more future benefits, regardless whether the existing standards 

are adjusted? 

Response. The Clean Air Act requires primary NAAQS that are ‘‘requisite to protect the public health’’ with an ‘‘adequate margin of safety.’’ The EPA is proposing 

that the current primary ozone (O3) standard set at a level of 0.075 ppm does not 

meet this requirement, and that it should be revised to provide increased public 

health protection. Specifically, the EPA is proposing to retain the indicator (ozone), 

averaging time (8-hour) and form (annual fourth-highest daily maximum, averaged 

over 3 years) of the existing primary O3 standard and is proposing to revise the 

level of that standard to within the range of 0.065 ppm to 0.070 ppm. EPA analyses 

indicate that most of the country will be able to meet a revised standard with a 

level in this range, based on existing Federal control requirements. 

Question 21. EPA’s modeling indicates that its proposed ozone standards may actually increase mortality in cities like Houston. Can you please explain how this 

proposal could end up increasing deaths in some areas? 

Response. The proposed revisions to the National Ambient Air Quality Standards 

for ozone discussed the possibility that some control strategies designed to reduce 

the highest ambient ozone concentrations can also result in increases in relatively 

low ambient ozone concentrations. That discussion can be found at http:// 

www.gpo.gov/fdsys/pkg/FR–2014–12–17/pdf/2014–28674.pdf. We are currently reviewing comments on this interaction, and other issues raised by the proposal. 

The proposal, based on extensive scientific evidence, found that reducing high 

ozone concentrations will reduce risk—including risk of ozone-related mortality— 

broadly across the country. This includes the risk associated with exposure to high 

ozone concentrations in all of the urban areas evaluated in the risk and exposure 

assessment. 

Question 22. Ozone is mainly outdoors. Yet most people spend 90 percent of their 

time indoors. Do you think this is why recent published studies found that indoor 

air quality and poverty were much more strongly linked to asthma than outdoor air 

quality? 

Response. The Clean Air Act directs the EPA to set National Ambient Air Quality 

Standards to limit harmful pollutants in the atmosphere. The EPA’s proposed revision to the ozone NAAQS is based on extensive scientific evidence, including more 

than 1,000 new studies since the last review of the standards. This evidence shows 

that ozone can harm public health and welfare. The proposed updates will improve 

public health protection, particularly for children, the elderly, and people of all ages 

who have lung diseases such as asthma. 

Question 23. Only 1 of the 12 studies considered by EPA show any link between 

long-term ozone exposure and mortality. And this study did not find any link in 

California, where ozone levels are the highest in the country. Shouldn’t we be concerned that EPA is cherry-picking science to support its regulatory agenda? 

Response. Based on a significantly expanded body of scientific evidence, including 

more than 1,000 new studies since the last review of the standards, the EPA is proposing that the current primary ozone standard set at a level of 0.075 ppm is not 

requisite to protect public health with an adequate margin of safety, and that it 

should be revised to provide increased public health protection. This proposed conVerDate Aug 31 2005 15:24 Aug 13, 2015 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94980.TXT VERN
24 

clusion is supported by the independent group of science experts who form the Clean 

Air Science Advisory Committee (CASAC). Specifically, the EPA is proposing to revise the level of that standard to within the range of 0.065 ppm to 0.070 ppm to 

increase public health protection, including for ‘‘at-risk’’ populations such as children, older adults, 

and people with asthma or other lung diseases, against an array of ozone-related 

adverse health effects. For short-term ozone exposures, these effects include decreased lung function, increased respiratory symptoms and pulmonary inflammation, effects that result in serious indicators of respiratory morbidity such as emergency department visits and hospital admissions, and nonaccidental mortality. For 

long-term ozone exposures, these health effects include a variety of respiratory morbidity effects and respiratory mortality. 

Question 24. I’m concerned that EPA is cherry-picking and contorting science to 

support its ozone proposal. For instance, one study found no statistically significant 

difference in lung function in humans exposed to ozone at levels above and below 

the standards in EPA’s ozone proposal. Yet EPA ‘‘reanalyzed’’ that data and decided 

there was a statistically significant impact after all leading that study’s author to 

say that EPA ‘‘misinterpreted’’ his data. Shouldn’t EPA just go where the science 

points, rather than trying to shoehorn findings into its regulatory agenda? 

Response. In reviewing a significantly expanded body of scientific evidence, including more than 1,000 new studies since the last review of the standards, the EPA 

in some instances conducted further analysis of the data underlying the studies. 

This review and these analyses are discussed in the Integrated Science Assessment, 

the Health Risk and Exposure Assessment and the Policy Assessment. Each of these 

documents are available at http://www.epa.gov/ttn/naaqs/standards/ozone/s—o3— 

index.html. Based on the body of scientific evidence, the EPA is proposing that the 

current primary ozone standard set at a level of 0.075 ppm is not requisite to protect public health with an adequate margin of safety, and that it should be revised 

to provide increased public health protection. This proposed conclusion is supported 

by the independent group of science experts who form the Clean Air Science Advisory Committee (CASAC). 

Question 25. All of the clinical studies cited by CASAC in support of the 60 ppb 

standard were created by the EPA. Yet, all of the non-EPA literature on health impacts of 60 ppb ozone cited by CASAC does not support a 60 ppb standard. Is this 

what EPA meant when it said that ‘‘increasing uncertainty in the scientific evidence 

at lower ozone concentrations’’ led it to not include a 60 ppb standard in the ozone 

proposal? 

Response. Compared to ozone standard levels from 65 to 70 ppb, the extent to 

which standard levels below 65 ppb could result in further public health improvements becomes notably less certain. For example, as explained in the preamble to 

the proposed rule (79 FR 75309), there are uncertainties associated with the adversity of exposures to 60 ppb of ozone, particularly single occurrence of such exposures; air quality analyses in locations of multicity epidemiologic studies; and epidemiology-based risk estimates. The EPA determined that it is not appropriate to 

place significant weight on these factors or to use them to support the appropriateness of standard levels below 65 ppb. 

Question 26. EPA has released maps showing only the projected counties in nonattainment in 2025. 

• Under EPA guidance does the agency designate non-attainment area boundaries 

starts with metropolitan area as the ‘‘presumptive’’ nonattainment area? Why are 

your maps inconsistent with your guidance? 

Response. The EPA has not yet issued guidance for designating areas for a potentially revised ozone standard, but intends to do so shortly after any standard is revised. Nonattainment area boundaries for a revised ozone standard will depend on 

a number of factors that are currently highly uncertain. 

Question 27. How many counties still do not meet the 1997 ozone standards? How 

about the 2008 standards? Doesn’t it make sense to work on attaining the existing 

standards, the tightest standards ever, before promulgating new standards? 

Response. The 1997 ozone standard was revoked on April 6, 2015. However, before that revocation, as of April 1, 2015, there were 7 designated nonattainment 

areas (consisting of 36 counties) that had not yet attained the standard based on 

preliminary 2014 ozone monitoring data. For the 2008 ozone standard, there are, 

as of April 1, 2015, 28 designated nonattainment areas (consisting of 163 counties) 

that have not yet attained the standard based on preliminary 2014 ozone monitoring data. 

The EPA sets the National Ambient Air Quality Standards at a level that is requisite to protect the public health and welfare, based on the best available science. 

25 

The U.S. Supreme Court ruled in Whitman v. American Trucking Associations, 531 

U.S. 457 (2001), that under Section 109 of the Clean Air Act, the EPA may not consider the costs of implementation in setting standards. 

Question 28. Why does EPA leave California off of its maps and analyses? If California is being give a longer period of time to attain the standards, shouldn’t other 

places in the country be granted that latitude as well? How much ($/ton) are NOx 

offset reductions selling for in Houston? Los Angeles? Other places? 

Response. While EPA analyzed costs and benefits for California separately from 

the rest of the United States, all of these analyses are described in full in the Regulatory Impact Analysis for the ozone proposal. The maximum amount of time a nonattainment area has to attain the standards is dictated by specific provisions of the 

Clean Air Act, and depends on the area’s classification. Because a number of California counties likely would have attainment dates ranging from 2032 to late 2037, 

California is not shown on maps that illustrate projected attainment status in 2025. 

The EPA does not centrally track or collect data on the selling prices of emissions 

offsets. Offset transactions are typically private transactions between emissions 

sources and the price paid per ton of emissions used for offsets is not required to 

be reported or disclosed to the EPA by permit applicants. 

CLIMATE

Question 1. The budget request includes a $4 Billion incentive program for states 

that reduce CO2 emissions beyond the existing source proposal. 

• How do you propose to implement this program? 

• Do you plan to send Congress a legislative proposal? 

• If the proposal is to give states money if they go beyond EPA mandates, will 

the result be to transfer taxpayer dollars away from states with large emission reduction burdens under your plan to states that have a smaller burden. For example, 

Vermont has no emissions reduction obligation under your plan because its power 

plants are small. So, would you automatically transfer taxpayer money from Southeastern and Southwestern states to Vermont? 

Response. The fiscal year President’s Budget includes an incentive fund for States 

choosing to go beyond the Clean Power Plan, which will be finalized this summer. 

The Clean Power State Incentive Fund will provide $4 billion to support States exceeding the minimum requirements established in the final Clean Power Plan for 

the pace and extent of carbon pollution reductions from the power sector. This funding will enable States to invest in a range of activities that complement and advance 

the Clean Power Plan, including efforts to address disproportionate impacts from 

environmental pollution in low-income communities and support for businesses to 

expand efforts in energy efficiency, renewable energy, and combined heat and power 

through, for example, grants and investments in much-needed infrastructure. 

Each State with an emissions reduction goal under the Clean Power Plan will 

have a reserved portion of the Fund, based on a combination of population and State 

power sector emissions. States across the country are well-positioned to act quickly 

and resolutely to reduce carbon pollution from the power sector—beyond the requirements of the final Clean Power Plan. If a State elects not to participate, its 

funding allocation will return to the Treasury. Additional details on the Fund will 

be made available this summer. 

Question 2. With respect to the Clean Power Plan, your justification statement 

says: ‘‘In fiscal year 6, the EPA will encounter a staggering workload to implement 

these rules and agency resources have been shifted to help meet the demand. Because of the breadth, complexity and precedent-setting nature of work, the agency 

expects a marked increase in demands for legal counsel in both headquarters and 

Regional Offices. In addition, each EPA action is expected to be challenged in court, 

which will require skilled and experienced attorneys specialized in the Clean Air Act 

to devote significant resources to defense of these actions.’’ 

• In your own budget justification statement you say that these rules will result 

in a ‘‘staggering workload’’ to implement and defend these two rules. Don’t you 

think those taxpayer dollars would be better spent increasing funding to states to 

implement existing programs rather than spending it on lawyers? 

Response. Successfully addressing climate change will require the EPA and State 

governments to work together, and the President’s proposed budget provides additional resources for that work, both to the Agency and to the states. 

With additional legal counseling resources, the EPA would provide significant 

benefits to our partners, stakeholders, and regulated communities. For example, 

counseling attorneys work closely with their program clients in rule development to 

ensure stakeholder input is appropriately considered. EPA counseling lawyers are 

26 

also a vital resource to States as States develop implementation plans under the 

Clean Air Act. 

The President’s proposed budget also provides significant resources for States. It 

includes $25 million in grants for States to develop their Clean Power Plan strategies, and sets up a Clean Power State Incentive fund of $4 billion. 

Question 3. Recent correspondence between your agency and the House Energy 

and Commerce Committee indicated EPA has not ‘‘explicitly modeled the temperature impacts of the Clean Power Plan’’ and could not State what, if any impact the 

rule would have on global temperatures or sea rise levels. 

• Why hasn’t EPA done the modeling? Is it a matter of budgeting? 

• Why is your agency attempting to impose this extremely complex rule and spend 

billions of taxpayer dollars to address global warming when you haven’t even 

checked to see if the rule would actually achieve your global warming goals? 

Response. The EPA included with the proposed Clean Power Plan a Regulatory 

Impact Analysis that estimated the total monetized climate-related benefits and 

costs of the rule, following applicable statutes, Executive Orders, and other guidance. Although the EPA has not explicitly modeled the temperature or sea level rise 

impacts of this rule, the Clean Power Plan is an important and significant contribution to emission reductions, thereby slowing the rate of global warming and associated impacts. 

Question 4. Your budget would eliminate funding under the Indoor Radon Abatement Act which authorizes grants to states to address radon (-$8 million) even 

though indoor radon is the second-leading cause of lung cancer and the leading 

cause of lung cancer for non-smokers and the funding was targeted this funding to 

support states with the greatest populations at highest risk. According to your 

Budget in Brief, indoor radon causes an estimated 21,000 lung cancer deaths annually in the U.S. Carbon dioxide causes no deaths. 

• Why would the budget propose spending $279 million to rework the U.S. energy 

economy (climate regulations) while ignoring real environmental threats? 

Response. Over the past 23 years, the State Indoor Radon Grant program has provided funds to support states’s efforts to reduce risks from radon exposure to establish their own programs. Because exposure to radon gas continues to be an important risk to human health, in fiscal year the 

EPA will continue to focus on reducing radon risk in homes and schools, including 

through partnerships with the private sector, remaining State programs and public 

health groups, as well as driving action at the national level with other Federal 

agencies, through the Federal Radon Action Plan. The EPA also will continue information dissemination, participation in the development of codes and standards, and 

social marketing techniques aimed at informing the public on the risks of radon. 

Question 5. Section 110(c) of the Clean Air Act requires EPA to issue a Federal 

implementation Plan (FIP) if a State does not submit a State Implementation Plan 

(SIP), does not submit a satisfactory SIP or does not make a satisfactory SIP revision (42 U.S.C. 7410(c)). Please provide a list of enforcement mechanisms with cites 

to the relative legal authority the EPA will use to enforce all components of a Federal plan on a State that does not does not submit a SIP, does not submit a satisfactory SIP—in whole or in part—or fails to make a satisfactory revision that meets 

the criteria of the proposed Clean Power Plan. 

Response. Under Section 111(d) the EPA is proposing a two-part process where 

the EPA sets state-specific goals to lower carbon pollution from power plants, and 

then the states must develop plans to meet those goals. States develop plans to meet 

their goals, but EPA is not prescribing a specific set of measures for states to put 

in their plans. This gives states flexibility. States will choose what measures, actions, and requirements to include in their plans, and demonstrate how these will 

result in the needed reductions. The Clean Air Act provides for EPA to write a Federal plan if a State does not put an approvable State plan in place. In response to 

requests from states and stakeholders since the proposed Clean Power Plan was 

issued, EPA announced in January 2015 that we will be starting the regulatory 

process to develop a rule that would set forth a proposed Federal plan and could 

provide an example for states as they develop their own plans. EPA’s strong preference remains for states to submit their own plans that are tailored to their specific needs and priorities. The agency expects to issue the proposed Federal plan for 

public review and comment in summer 2015. 

Question 6. During the hearing, I asked you if the EPA would consider withholding Federal highway funding if a State that does not submit a SIP, does not 

submit a satisfactory SIP—in whole or in part—or fails to make a satisfactory revision that meets the criteria of the proposed Clean Power Plan. You responded, 

27 

‘‘Ms. McCarthy. This is not a traditional State SIP under the national ambient 

air quality standards. There are other processes for us to work with States. Clearly 

our hope is that States will provide the necessary plans. If not, there will be a Federal system in place to allow us to move forward.’’ 

Will you clarify for the record whether EPA would consider withholding Federal 

highway funding to enforce any elements of the proposed Clean Power Plan? 

Response. When the EPA finalizes the Clean Power Plan we will be very clear 

that sanctions will not be imposed for a state’s failure to submit or enforce a State 

plan under the Clean Power Plan. 

WATERS OF THE UNITED STATES

Question 1. Please provide me with examples where EPA or the Corps has used 

a groundwater connection to establish jurisdiction over a body of water that has no 

surface connection, direct or indirect, to a navigable water. For any such examples, 

please also provide the distance between the body of water that lacks such a surface 

connection and the nearest water of the United States. Please exclude any allegations that a groundwater connection establishes the existence of a point source discharge where the body of water with no surface connection was itself determined 

to be a point source, rather than a water of the United States. 

Response. The agencies existing regulations and guidance allow for establishing 

that a wetland is adjacent to jurisdictional tributary based on the presence of a confined surface or shallow subsurface connection. This connection would then serve as 

the basis for determining whether a significant nexus with a downstream traditional 

navigable water is present. This is explicitly recognized in the agencies’ 2008 (postRapanos) guidance documents. Federal courts have upheld jurisdiction consistent 

with this regulation and guidance, relying on a groundwater connection as the basis 

for a significant nexus finding. See Northern California River Watch v. city of 

Healdsburg. The agencies make clear in the final Clean Water Rule that groundwater is never jurisdictional under the Clean Water Act. 

Question 2. Is it currently the national policy of either EPA or the Corps of Engineers to establish jurisdiction over all wetlands in flood plain? 

Response. No. Existing law and policy requires the agencies to determine, on a 

case-specific basis, whether or not a particular wetland located in the floodplain is 

jurisdictional. Location in the floodplain does not itself make a wetland jurisdictional. 

Question 3. Is it currently the national policy of either EPA or the Corps of Engineers to establish jurisdiction over all waters in flood plain? 

Response. No. Existing law and policy requires the agencies to determine, on a 

case-specific basis, whether or not a particular water located in the floodplain is jurisdictional. Location in the floodplain does not itself make a water jurisdictional. 

HYDRAULIC FRACTURING

Question 1. The EPA continues its study into the relationship between drinking 

water and hydraulic fracturing, which was initiated in 2010. Well over $20 million 

has been spent on this study and the timeline continues to slip. In fact, the draft 

assessment report was expected in December 2014 yet today, there is no indication 

when this will be released. 

• What is the current timeline for release of the EPA’s drinking water study? 

• Will the report undergo interagency review prior to its release? If so, which 

agencies will be a part of the review? If not, why not? 

• After the draft assessment report is released, what is the timeline moving forward? 

Response. To date, the EPA’s hydraulic fracturing drinking water study has produced 25 scientific products, including 12 EPA technical reports. Additionally, on 

June 4, 2015, the EPA released the draft hydraulic fracturing drinking water assessment report. The assessment is a state-of-the-science integration and synthesis 

of over 950 publications and sources of data. The draft assessment was released for 

public comment, and submitted to the EPA Science Advisory Board for external, 

independent peer review. 

The EPA shared findings from the draft hydraulic fracturing drinking water assessment report with other Federal agencies and departments prior to the release 

of the assessment on June 4. 

The draft assessment report was released for public comment and peer review on 

June 4, 2015. The EPA Science Advisory Board will conduct the external peer review of the draft assessment. Their preliminary schedule for review includes several 

28 

teleconferences and an October 28–30, 2015 meeting of the SAB ad hoc review 

panel. The SAB anticipates release of the final peer review report in spring 2016. 

After receipt of the SAB’s peer review report, EPA will finalize the hydraulic fracturing drinking water assessment report. The final report will reflect SAB input and 

the input of submitted public comments. The EPA anticipates completing the final 

assessment report in 2016. 

Question 2. You’ve said that hydraulic fracturing can be done safely and have 

agreed with former EPA Administrator Lisa Jackson that there have been no confirmed cases of hydraulic fracturing impacting drinking water. The White House 

Council on Economic Advisors released a report last week that touted the economic 

benefits because of the increase in domestic oil and natural gas and clearly linked 

the production increases to the use of hydraulic fracturing and horizontal drilling. 

What is your vision for getting the American public to understand that hydraulic 

fracturing is safe and that fracking has unlocked an American energy revolution 

that has lowered all Americans’s energy prices, created jobs, helping lower GHG 

emissions and revitalizing such industries as the manufacturing, steel and chemical 

sectors? 

Response. The EPA’s vision is to make sure that the American public has the best 

scientific information available to understand the potential impacts of hydraulic 

fracturing activities on drinking water resources. Once EPA responds to public and 

SAB peer review comments and finalizes the assessment, EPA expects that it will 

be a critical resource for State regulators, tribes, local communities, and industry 

who can use the information to better identify how best to protect public health and 

drinking water resources. 

The hydraulic fracturing drinking water assessment report identified potential 

vulnerabilities to drinking water resources due to hydraulic fracturing activities. 

The draft assessment concluded that there are both above and below ground mechanisms by which hydraulic fracturing activities have the potential to impact drinking 

water resources. These mechanisms include water withdrawals in time of or in 

areas with low water availability, spills of hydraulic fracturing fluids and produced 

water; fracturing directly into underground drinking water resources; below ground 

migration of liquids and gases; and inadequate treatment and discharge of waste 

water. 

We found specific instances where one or more mechanisms led to impacts on 

drinking water resources, including contamination of drinking water wells. The 

number of cases, however, was small compared to the number of hydraulically fractured wells. 

This finding could reflect a rarity of effects on drinking water resources, but may 

also be due to other limiting factors. These factors include: insufficient pre-and postfracturing data on the quality of drinking water resources; the paucity of long-term 

systematic studies; the presence of other sources of contamination precluding a definitive link between hydraulic fracturing and an impact; and the inaccessibility of 

some information on hydraulic fracturing activities and potential impacts. 

Question 3. In the draft fiscal year budget proposal, it states that EPA will respond to peer review comments from the Agency’s Science Advisory Board (SAB) in 

order to finalize the study. It further suggests that the report will provide a synthesis of the State of the science, including the results of research focused on whether hydraulic fracturing affects drinking water resources, and if so, will identify the 

driving factors. 

• Clearly you already have a plan for additional research. Can you share those 

plans? 

• More importantly, will the Agency actually consider the recommendations of its 

own Science Advisory Board in this process, particularly if those recommendations 

do not align with EPA’s own research initiatives, which you just addressed? 

Response. The President’s fiscal year budget request includes $4.0M to address 

the peer review and public comments received on the Hydraulic Fracturing Drinking 

Water Assessment report, including performing additional analyses in response to 

these comments. 

The Department of Energy, Department of Interior, United States Geological 

Service, and EPA developed the Federal Multiagency Collaboration on Unconventional Oil and Gas (UOG) to coordinate on-going and future high priority research 

associated with safely and prudently developing onshore shale gas, tight gas, shale 

oil, and tight oil resources. The three agencies shared the ‘‘Federal Multiagency Collaboration on Unconventional Oil and Gas Research—A Strategy for Research and 

Development’’ (Strategy) in July 2014 (http://unconventional.energy.gov/pdf/Multiagency—UOG—Research—Strategy.pdf). Separate from the hydraulic fracturing 

drinking water assessment, resources are requested to further research outlined in 

29 

the Strategy to better understand and mitigate the potential impacts of UOG practices. 

Throughout the development of hydraulic fracturing drinking water assessment, 

the EPA has actively engaged input from the agency’s Science Advisory Board 

(SAB). A previous SAB panel provided comment on the hydraulic fracturing study 

plan published in 2011. A separate SAB panel provided comment on the hydraulic 

fracturing drinking water study progress report published in 2012. The same SAB 

ad hoc panel will review the draft assessment report. The external peer review by 

the SAB is expected to provide detailed comments and suggestions concerning the 

draft assessment. EPA will consider and evaluate all comments received from the 

SAB. SAB comments, along with comments received from the public, will help inform and guide the EPA as it develops the final draft of the assessment. 

Question 4. Director McCarthy, the President’s new economic report says that 1) 

‘‘natural gas is already playing a central role in the transition to a clean energy future,’’ 2) that an effective regulatory structure for addressing environmental concerns already ‘‘exists primarily at the State and local level,’’ and 3) that unconventional natural gas production technology unleashed in the U.S. ‘‘can help the rest 

of the world reduce its dependence on high-carbon fuels.’’ Given this positive view 

from the White House, which is supported by a broad scientific consensus, how do 

you intend to ensure that your agency’s proposed regulations on methane will not 

short-circuit the U.S. energy revolution that is driving so much job creation? 

• Can we assume that the upcoming EPA study on hydraulic fracturing will not 

conflict with this latest White House report that recognizes the clear advantages of 

unconventional energy development? 

Response. Responsible development of America’s shale gas resources offers important economic, energy security, and environmental benefits. Recognizing this, in 

April 2012, President Obama signed E.O. 13605, Supporting Safe and Responsible 

Development of Unconventional Domestic Natural Gas Resources, which, among 

other things, charges Federal agencies to pursue multidisciplinary, coordinated research. The EPA is working with other Federal agencies, states and other stakeholders to understand and address potential concerns with hydraulic fracturing so 

the public has confidence that natural gas production will proceed in a safe and responsible manner. 

The EPA’s study of the potential impacts of hydraulic fracturing for oil and gas 

on drinking water resources in the United States reflects the multiple, complex activities associated with the use of water in hydraulic fracturing, beginning with 

water acquisition and ending with the wastewater treatment and disposal. When 

completed, the products from the EPA’s hydraulic fracturing study are intended to 

provide information needed to inform decisionmakers involved with ensuring that 

hydraulic fracturing activities do not impact the nation’s drinking water resources. 

Question 5. In February 2014 the EPA’s IG sent a memo to the EPA Office of 

Water outlining an initiative the IG has underway that will ‘‘determine and evaluate what regulatory authority is available to the EPA and states, identify potential 

threats to water resources from hydraulic fracturing, and evaluate the EPA’s and 

states’ responses to them.’’ Do you consider this a duplication of the EPA’s efforts 

as it relates to the multi-year and multi-million dollar hydraulic fracturing and 

water study currently in process at the EPA and if not, then how do these studies 

differ? Hasn’t EPA independently done this type of evaluation (see the letter from 

EPA to NRDC)? 

Response. The OIG does not consider its evaluation in this case as duplicative of 

the study by the EPA’s Office of Research and Development (ORD). ORD’s Final 

Study Plan is scoped to the hydraulic fracturing water lifecycle, defined by ORD to 

include water acquisition, chemical mixing, injection, flowback and produced waters, 

and wastewater treatment. The OIG will not undertake a review of these matters. 

The OIG is not conducting independent scientific evaluations, laboratory studies or 

toxicological studies as planned in ORD’s study. 

SRF PROGRAM

Question 1. It is my understanding that since the program’s inception in 1988, the 

Clean Water State Revolving Loan Funds have provided a total of $105 billion in 

assistance, leveraging Federal capitalization grants totaling approximately $36.2 billion. Further, since the program’s inception in 1997, Drinking Water State Revolving Loan Funds have provided approximately $33 billion in assistance, leveraging 

Federal capitalization grants totaling approximately $19 billion. This means that for 

every Federal dollar invested in the Clean Water SFR community wastewater systems have received nearly $3 dollars in assistance and for every dollar in the DrinkVerDate Aug 31 2005 15:24 Aug 13, 2015 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94980.TXT VERN
30 

ing Water SRF community water systems have received approximately $1.75 dollars 

in assistance. 

• Do you agree that the SRF program has been among the most successful programs we have in government? 

• It that is so, why does the President’s budget perennially underfund these programs? 

Response. Yes, and the Administration strongly supports the successful Clean 

Water and Drinking Water State Revolving Loan Fund programs. The President’s 

fiscal year budget request recognizes that both SRF programs report long-running 

significant water infrastructure needs. In fiscal year 6, the Administration is requesting a total of $2.3 billion for the SRF programs—$1.186 billion for the DWSRF 

and $1.116 billion CWSRF. In addition, the fiscal year request includes $50 million 

in technical assistance, training, and other efforts to enhance the capacity of communities and states to plan and finance drinking water and wastewater infrastructure improvements. The fiscal year budget also requests funds to lay the groundwork for a Water Infrastructure Finance and Innovation Act of 2014 (WIFIA) program that would provide additional assistance. EPA has also launched the Water 

Infrastructure and Resilience Finance Center to help communities address their 

wastewater, drinking water, and stormwater needs within constrained budgets, particularly through innovative financing and by building resilience to climate change. 

Question 2. Under the Clean Water Act, EPA is supposed to send a report to Congress on the funding needs for both wastewater and drinking water infrastructure. 

The last report to 

Congress on wastewater needs was based on the 2008 Clean Water Needs Survey. 

The estimate of need in that survey—$298 billion over 20 years—is woefully out of 

date. That estimate is based on cities’ own capital improvement plans. It does not 

reflect new mandates like the hugely costly sewer overflow control measures that 

EPA is imposing on cities in enforcement actions or costly new requirements for nutrient reductions and stormwater controls. 

By failing to provide an updated estimate of needs, EPA is doing a disservice to 

Congress, to cities, and to itself. We all need reliable information to make good decisions and EPA is required by law to update the needs survey every 4 years. 

• When will EPA provide Congress with the updated the Clean Water Needs Survey? 

Response. The 2012 Clean Water Needs Survey Report to Congress is currently 

undergoing review. When the review is complete and the Report is cleared, it will 

be immediately provided to Congress. 

Question 3. We all know that the needs for both water and wastewater are huge. 

According to the U.S. Conference of Mayors, cities are spending $115 billion a year 

to provide water and wastewater services and meet Federal mandates. So, the proposal to provide a combined $2.3 billion for the Clean Water and Drinking Water 

State Revolving Funds is a drop in the bucket. Since the Federal Government does 

not provide funding to meet those mandates, I think it is important to take a hard 

look at how we are asking cities to spend their citizen’s money. 

• We all support clean and safe water. But, I am told that EPA enforcement officials extract penalties on top of commitments of hundreds of millions of dollars to 

address sewer overflows. Is that right? 

• I also am told that EPA enforcement officials will require complete elimination 

over sewer overflows if they think a city can pay for it, when a less expensive approach could meet water quality standards. Is that right? Is EPA requiring cities 

to do more than meet the standards that states have set and EPA has approved 

that will protect water quality? 

Response. Sewer overflows, which contain raw sewage, may present significant 

environmental and human health risks to communities. Raw sewage contains bacteria, viruses, parasites, industrial wastewater, and inhalable mold and fungi which 

can be particularly problematic for children and the elderly. 

The ability to assess a penalty when appropriate is important both to ensure future compliance and meet the standard under which courts review such consent decrees. Under the EPA’s current approach, the agency tailors the terms of a settlement agreement, including any civil penalty, to the individual facts and circumstances of each case. Moreover, in determining appropriate civil penalties, the 

EPA uses the significant flexibility provided under the EPA’s Clean Water Act Penalty Policy (including consideration of a city’s specific financial circumstances) to 

substantially mitigate civil penalties in municipal cases. The agency remains committed to ensuring that we take into account the individual circumstances of each 

community, so that we can meet the objective we share with every community to 

31 

1Link to CSO Control Policy: http://water.epa.gov/polwaste/npdes/cso/upload/owm0111.pdf 

1CSO Guidance for FCA and Schedule Development: http://water.epa.gov/polwaste/npdes/cso/ 

upload/csofc.pdf 2FCA Framework Memo: http://water.epa.gov/polwaste/npdes/cso/upload/municipal—fca— 

framework.pdf 3Link to Assessing Financial Capability for Municipal Clean Water Act Requirements Memo: 

http://water.epa.gov/polwaste/npdes/stormwater/upload/sw—regionalmemo.pdf 4CWA Penalty Policy: http://www2.epa.gov/sites/production/files/documents/cwapol.pdf 

achieve clean water and encourage future compliance with the Clean Water Act in 

a way that makes sense for that community. 

For combined sewer systems, the level of control is governed by the Combined 

Sewer Overflow Control Policy, with which each ‘‘permit, order, or decree’’ for municipal combined sewer system discharges ‘‘shall conform’’ as required by Congress 

in section 402(q) of the Clean Water Act.1 The Clean Water Act requires permit 

holders to meet both water quality and technology standards and either can govern 

the requirements for compliance. 

Separate sanitary sewer systems must be designed to contain and treat raw sewage generated by a community. An enforceable requirement of National Pollutant 

Discharge Elimination System (NPDES) permits is that cities properly operate and 

maintain their sewer collection and treatment systems. 

Question 4. Given the enormous cost of meeting water and wastewater mandates, 

affordability is a significant issue. It is my understanding that at EPA Headquarters, you talk about giving cities more time to meet mandates; you talk about 

adaptive management; and you talk about using green infrastructure alternatives. 

However, when they bring enforcement actions against cities, EPA regions and 

Headquarters enforcement officials are not providing these flexibilities. 

• How are you addressing the real affordability concerns of cities? 

• Do you think your enforcement officials should try to extract every last dollar 

from a city that you claim they can afford even if spending more money will not 

provide additional water quality benefits? 

• If a city steps up and agrees to spend hundreds of millions or in some cases 

billions of dollars, do you think it is also appropriate to impose penalties on that 

city when the penalty will simply go to the U.S. Treasury and will reduce the 

amount of funding available to help improve the environment? 

Response. The EPA is sensitive to the significant investment cities must make to 

ensure clean and safe water. The EPA’s guidance ‘‘Combined Sewer Overflows Guidance for Financial Capability Assessment and Schedule Development’’ (FCA Guidance), adopted in March 1997, provides a flexible framework for considering the sitespecific factors that impact a given community’s rate base.1 The guidance encourages communities to consider and present any other documentation of their unique 

financial circumstances so that it may be considered as part of the analysis. These 

flexibilities were further clarified in November 2014, in the EPA’s ‘‘Financial Capability Assessment Framework for Municipal Clean Water Act Requirements,’’ which 

was developed with significant input from a variety of stakeholders including the 

United States Conference of Mayors, the National League of Cities, and the National Association of Counties.2 As detailed in the EPA’s January 13, 2013, ‘‘Assessing Financial Capability for Municipal Clean Water Act Requirements’’ Memorandum, nothing in the Federal Clean Water Act prohibits communities from introducing a sewer rate structure based on differential household incomes.3

Section 204(b)(1) of the Clean Water Act recognizes the use of lower rates for lowincome residential users as satisfying the stipulation that recipients of services 

must pay their proportionate share. The EPA’s regulations at 40 C.F.R. Section 

35.2140(i) reflect this and authorize low-income residential user rates. Local officials 

have a great deal of latitude under these regulations and the EPA continues to encourage communities to consider and adopt rate structures that ensure that lowerincome households continue to be able to afford vital wastewater services. 

The EPA utilizes its Clean Water Act Penalty Policy to provide flexibility to substantially mitigate civil penalties in municipal cases, including taking into account 

a city’s specific financial circumstances.4 The agency remains committed to ensuring 

that we consider the individual circumstances of each community so that we can 

meet our shared objective of achieving clean water and encouraging future compliance with the Clean Water Act in a way that makes sense for individual communities. 

Question 5. I am very concerned that the way EPA looks at affordability when 

they decide what mandates to impose on communities means that our poorest citizens will end up paying 10 percent or more of their income on sewer bills. 

32 

1 FCA Framework Memo: http://water.epa.gov/polwaste/npdes/cso/upload/municipal—fca— 

framework.pdf 

Last Congress, in Title V of the Water Resources Reform and Development Act, 

we amended the Clean Water Act to give direction on how to identify what communities would experience a significant hardship raising the revenue to finance 

projects to meet Clean Water Act mandates. One of the criteria that we listed in 

the statute is whether the area is considered economically distressed under the Public Works and Economic Development Act. Under this Act, a community or area 

within a larger political boundary is economically distressed when — • the per capita income at 80 percent or less than national average, 

• unemployment is 1 percent or more greater than national average, or 

• there is an actual or threatened severe unemployment or economic adjustment. 

This information is provided by the community and must be accepted unless the 

Secretary of Commerce determines it is inaccurate. • Will EPA also incorporate this approach into your evaluation of affordability 

when taking enforcement action? 

Response. The EPA is committed to implementing the Clean Water Act requirements in a sustainable manner, and will continue to work with permit holders toward our shared goals of clean water. The EPA’s enforcement program encourages 

permit holders to submit any documentation that would create a more accurate and 

complete picture of their financial capability, which could include the type of information listed below. The EPA’s ‘‘Financial Capability Assessment Framework for 

Municipal Clean Water Act Requirements’’ provides examples of information that 

may prove relevant in negotiating schedules.1

TECHNICAL ASSISTANCE TO STATES

Question 1. In EPA’s fiscal year Budget Request, the Agency did not request any 

funds for the EPA technical assistance competitive grant program. As you know, 

this program provides small and rural communities with the training and technical 

assistance necessary to improve water quality and provide safe drinking water. 

Many communities count on this program to assist them in complying with Federal 

regulations when operating drinking and wastewater treatment facilities. These 

communities believe that is the most effective program to aid in compliance with 

the requirements of both the Clean Water Act and the Safe Drinking Water Act. 

In the past Congress has agreed and from fiscal year—fiscal year appropriated 

$12.7 million for the program. Given its success and importance to so many communities across the country, why is EPA is not requesting any funds to support this 

grant program in fiscal year 6? 

Response. Answer: Assisting small and rural communities in compliance with 

water regulations is very much a priority for this Administration. The EPA’s fiscal 

year budget requests $1.186 billion for the Drinking Water State Revolving Fund 

(DWSRF) program, which can be used to provide special assistance to systems serving 10,000 or fewer customers. For example, States are required to provide a minimum of 15 percent of the funds available for loan assistance to small systems to 

help address infrastructure needs. The DWSRF also allows states a 2 percent small 

system technical assistance set-aside to provide assistance to small and rural water 

systems. The 2 percent DWSRF set-aside is used by nearly every State to support 

their small systems and several states use these funds for non-profit State affiliates. 

In fiscal year 6, the EPA is also requesting additional resources as part of the 

agency’s infrastructure investment which will enable states to augment their roles 

and participation in building small drinking water system capabilities and partnerships. For example, an additional $9 million is requested to expand upon existing 

technical, managerial, and financial capability programs, and develop additional 

tools and partnerships to promote sound asset management, as well as strengthen 

State resources to engage in these activities. In addition, a $9 million increase is 

requested to provide technical assistance for small systems to plan and facilitate 

partnership, regionalization, or consolidation agreements. The EPA also is requesting an increase of $7.7 million in the Public Water System Supervision funding in 

order to enhance State and tribal efforts to provide increased operator training and 

technical assistance to small communities so they can acquire the knowledge and 

expertise needed to properly operate drinking water systems and therefore protect 

public health. 

Question 2. You have requested $46 million and 13 new FTES for an unauthorized 

program to improve climate resilience for water and wastewater facilities. In contrast, you have requested only $5 million for fiscal year out of the EPM account to 

33 

set up the implementing the newly authorized Water Infrastructure Finance and Innovation Authority (WIFIA), but no money out of the STAG account to actually implement it. How can you explain the disparities in these requests? What does this 

say about your priorities? Response. The $46 million and additional FTEs identified in the President’s fiscal 

year budget, along with requests for the State Revolving Fund programs and preparation for WIFIA, reflect a priority to invest in our nation’s infrastructure. Activities 

within the $46 million include: 

• Water Infrastructure and Resilience Finance Center—Assist communities across 

the country improve their wastewater, drinking water, and stormwater systems, 

particularly through innovative financing and by building resilience to extreme 

weather events. • Capacity Building—Expand upon existing technical, managerial, and financial 

capability programs, and develop additional tools and partnerships to promote 

sound asset management. • Integrated Planning—Expand community assistance in developing integrated 

plans, and to provide support for a limited number of implementation projects. • Small System Partnerships—Provide technical assistance for small systems to 

plan and facilitate partnerships, regionalization, or consolidation agreements. Disseminate best practices or model partnership efforts by states and towns. • Full Cost Pricing—Provide technical assistance to communities on the adoption 

of pricing structures that cover a system’s full capital and operations and maintenance costs. 

Also, the Administration’s request for continued WIFIA startup efforts in fiscal 

year will lay the groundwork for a WIFIA program that would provide additional 

infrastructure assistance. 

NEW DEFINITION OF FLOOD PLAIN

Question On January 30, 2015, the President signed a new Executive Order (EO 

13690) that changed the existing flood plain management policy that has been in 

effect since 1977. With these changes, the policy applies to all agencies and all Federal actions and flood plain is now defined as either the 500 year flood plain or a 

larger area based on climate modeling. 

• Will this new definition affect the projects that states can fund using the State 

Revolving Loan Funds? • Will this new definition affect the type, size, or location of infrastructure that 

EPA requires cities to build to treat wastewater or to address sewer overflows under 

enforcement agreements? • Will this new definition affect the conditions attached to municipal stormwater 

permits? • What was EPA’s involvement in developing this Executive Order? 

• What outreach efforts were made before signing this Executive Order to State 

and local governments? 

Response. Executive Order 13690 (EO 13690), which amended Executive Order 

11988 on Floodplain Management, gives agencies flexibility to select one of three approaches for establishing the flood elevation and hazard area they use in siting, design, and construction. First, agencies may use the elevation and flood hazard area 

that result from freeboard of 2 or 3 feet, depending on criticality. Second, agencies 

may also use the elevation and flood hazard area that result from a climate-informed science approach. Finally, agencies may use the area subject to flooding by 

the 0.2 percent annual chance flood. EO 13690 does not define the flood plain as 

‘‘either the 500 year flood plain or a larger area based on climate modeling.’’ 

Following the development and issuance of the Final Revised Guidelines for EO 

13690, which the public comment period recently closed (May 6), the EPA will begin 

the process for implementing EO 13690. Until that process is complete, it would be 

premature to respond to questions regarding effects on programs or projects. 

The EPA participated in the interagency group that assisted in the development 

of the Executive Order and Draft Revised Guidelines. As one of the agencies in the 

interagency group, the EPA participated in engagement efforts with states, local 

governments, and other stakeholders regarding flood risk policy issues. 

STORMWATER

Question EPA has announced that it has abandoned its plans to develop a national storm water rulemaking that would have tried to expand your authority to 

regulate not only pollutants, but also the actual flow of water. That is not surprising 

34 

given the fact that courts have made it clear that the Clean Water Act does not give 

EPA any authority to regulate water flows. However, it is my understanding that 

your agency is continuing to advance this agenda by regulating water flows in individual permits. 

• Will you commit to me that your agency will use Clean Water Act permits to 

regulate the discharge of pollutants only and not the flow of water? 

Response. The EPA and the States responsible for administering the National Pollutant Discharge Elimination System (NPDES) permits will continue to review and 

reissue Municipal Separate Storm Sewer System (MS4) permits under the authorities governing stormwater discharges in Section 402(p) of the Clean Water Act 

(CWA). 

ATTORNEYS/WORKFORCE

Question 1. Administrator McCarthy, the President’s budget request seeks an additional $10 million that would go to hire almost 40 additional attorneys to work 

at EPA. More than $3.5 million would go to hire 20 new attorneys who would be 

devoted to supporting the Clean Power Plan alone. 

At a House committee hearing last week, you stated that these attorneys would 

not be ‘‘litigation attorneys’’ and instead would be used to help with reviewing permits and assisting states to set up their programs. 

However, your own budget justification says these additional attorneys and needed because, ‘‘In addition, each EPA action is expected to be challenged in court, 

which will require skilled and experienced attorneys specialized in the Clean Air Act 

to devote significant resources to defense of these action.’’ 

• Which is it? Do you stand behind your recent statement to Congress, meaning 

the budget justification is incorrect? Or do you agree that you need to hire additional attorneys in part to defend these unlawful rules in court? 

Response. The fiscal year President’s budget requests 19.5 additional employees 

for legal counseling on a wide variety of EPA issues and 20 employees specifically 

for Clean Power Plan implementation. All of these additional employees would be 

provided to the EPA’s Office of General Counsel for use in both EPA headquarters 

and the regional offices. Lawyers in the Office of General Counsel work closely with 

EPA program offices on rule development and implementation. They also review 

permits, counsel on State implementation plans and help address stakeholder concerns and questions. As such, with these employees, the EPA would provide significant benefits to our partners, stakeholders, and regulated communities. 

Assisting the Department of Justice in defending the agency’s actions is an important role for lawyers in the EPA’s Office of General Counsel. Our lawyers have deep 

expertise in specific areas of law, and advise on all agency activities within that 

area of expertise. Most of the EPA’s significant rules are challenged in court; often 

the regulated industry and environmental plaintiffs both challenge the same rule. 

It is in the interest of all stakeholders if the agency can get the rule right the first 

time, providing a robust explanation and record. This means a better final rule and 

less uncertainty. 

The additional Clean Power Plan focused legal employees will work on the full 

range of important legal counseling services provided by the Office of General Counsel, including rule development, assisting the Department of Justice in defense, reviewing permits, and counseling on State implementation plans. 

Question 2. The Budget justification goes on to say that additional legal resources 

will make EPA more responsive to states, industry, and citizens, and will make 

EPA’s actions more defensible in court. Yet the budget request also says there are 

no performance measures for the agency’s attorneys like there are for other programs. 

• Why is that? 

• Does this lack of staffing or accountability explain why, when it issued performance standards for new sources in September 2013, EPA seemed unaware of the Energy Power Act provision that prohibits the use of carbon capture projects receiving 

certain 

• Federal funding from being used to show the technology had been adequately 

demonstrated? 

• Shouldn’t EPA attorneys and staff in the Air office have known about that provision before the rule was proposed? 

• How are you going to ensure that these additional legal resources will be used 

effectively? 

• Would these be term-limited positions, or permanent hires? 

35 

1 For more information: http://www2.epa.gov/carbon-pollution-standards/2013-proposed-carbonpollution-standard-new-power-plants 

• Do the agency’s attorneys—or any employees for that matter—keep track of 

their time, like attorneys in the private sector do or workers at a coal mine or factory would? 

• Given the issues EPA has had with time and attendance problems, what is EPA 

doing to ensure that EPA staff are in fact doing the jobs they are being paid to do? 

Response. The Office of General Counsel supports each of the agency’s programs 

in achieving their goals and priorities. As such, OGC supports the accomplishment 

of the performance measures for every agency program. The additional legal counseling FTE in the President’s proposal would result in the agency’s ability to hire 

additional permanent attorneys in fiscal year 2016. These new attorneys would 

allow the agency to better serve our co-regulators and other stakeholders. 

While OGC itself does not have quantitative measures, it has a very structured 

and systematic approach to its work. Each law office has a weekly or bi-weekly 

meeting to report to the General Counsel, and each office carefully tracks the cases 

and associated deadlines in its area of law. Each law office is similarly in close contact with the relevant media office, getting real-time feedback on both that office’s 

needs and OGC lawyers’ performance. 

The EPA’s September 2013 Proposed Carbon Pollution Standard for New Power 

Plant1] does not raise any accountability concerns. Any final standards the EPA 

issues will be based on sound science and will undergo thorough legal review to ensure they comply with all applicable laws and regulations. The EPA does not believe 

that the Energy Policy Act of 2005 precludes consideration of the projects the EPA 

has evaluated. The EPA has issued a Notice of Data Availability (NODA) that notes 

the availability of a Technical Support Document (TSD) in the rulemaking docket 

that details its proposed position on this issue. It explains, ‘‘EPA interprets these 

provisions to preclude EPA from relying solely on the experience of facilities that 

received EPAct05 assistance, but not to preclude EPA from relying on the experience of such facilities in conjunction with other information.’’ The EPA based its proposed determination on a number of projects and other information including 

projects that did not receive any assistance under EPAct05. In addition, the agency 

extended the public comment period for January 2014 proposal by 60 days to allow 

adequate time for the public to review and comment on the contents of the NODA 

and TSD. 

OGC uses a tracking system primarily to assist with workload management, to 

help ensure that all deadlines are met. In addition to this close tracking of substantive work, judicial deadlines, and client satisfaction, the time and attendance 

of OGC employees are subject to all agency accountability measures for time and 

attendance. Updated agencywide internal controls were implemented on September 

21, 2014 to ensure compliance with time and attendance policies and regulations. 

The EPA made system adjustments to ensure accurate time and attendance recording, including elimination of default pay and mass approvals. The EPA established 

requirements for supervisors to monitor time and attendance reports, and clarified 

the time and attendance approvals of senior executives through an executive approval framework. 

Question 3. Please describe the process and resources the Agency (both Headquarters and Regional Offices) currently uses to track litigation to which it is a 

party, as well as deadlines for regulatory or other EPA action that have been established in litigation settlements or court orders. 

• What efforts are planned in fiscal year to improve this process and the public 

transparency of this tracking? 

• What public notice and opportunity for comment and public participation does 

the Agency give to the public when a deadline established in a settlement or court 

order is revised or extended? 

Response. The process the agency uses to track litigation starts with assigning the 

litigation to an attorney. The attorney assigned along with counsel from the Department of Justice, is responsible for tracking the litigation, and any associated deadlines or court-ordered schedules. As major deadlines or events approach, these are 

brought to the attention of the General Counsel through weekly or bi-weekly meetings. Where the agency agrees in settlement to a deadline for agency action, that 

deadline becomes a commitment of the relevant program office. 

For both litigation and regulatory actions, there are a number of ways that agency 

provides information to the public. Below are examples of how information regarding litigation and regulatory actions are made available: 

36 

• Each Notice of Intent (NOI) to sue the EPA under an environmental statute is 

posted here: http://epa.gov/ogc/noi.html. (In response to stakeholder requests, the 

EPA has also begun posting complaints next to the related NOI.) 

• When the EPA receives a petition for rulemaking, those are posted here: http:// 

www2.epa.gov/aboutepa/petitions-rulemaking. 

• The EPA publishes in the Federal Register any proposed settlement agreement 

under the Clean Air Act before finalizing. There is a 30-day open comment period 

on each of these proposed settlements. You can see an example here: https:// 

Federalregister.gov/a/01–21342. 

• Regulatory agendas are available in a few different ways, as explained on the 

agency’s website. Available here: http://www2.epa.gov/laws-regulations/regulatoryagendas-and-regulatory-plans. 

• The searchable regulatory plan is available at: http://www.reginfo.gov/public/do/ 

eAgendaSimpleSearch. (These entries include deadlines such as those agreed to 

through settlement; for an example search RIN 2060-AM08). 

Question 5. For its fiscal year budget proposal, EPA requested to remove the 50 

person ceiling for hiring under Title 42. A March 5, 2015, EPA Inspector General 

Report found that EPA’s Office of Research and Development did not always demonstrate the need to use Title 42 to recruit or retain 19 positions reviewed. In four 

cases reviewed, the IG found that employees were converted to Title 42 to perform 

the same position, yet paid a total $47,264 more in salary for performing the same 

job. The EPA OIG recommended that EPA improve transparency and its justification for the use of Title 42 appointments or reappointments, which could result in 

potential monetary benefits of $3.5 million. EPA did not agree with the OIG’s recommendation. The OIG responded that EPA’s alternate approach does not address 

the need to justify the need to use Title 42 authority or the need for more transparency in the decisions to use the Title 42 authority. 

• Why did EPA request to remove the 50 person ceiling under Title 42 for fiscal 

year and not for fiscal year 6? 

• Why did EPA disagree with the OIG’s recommendations? 

• How will the EPA address the need for greater transparency and justification 

for Title 42 hiring? 

Response. As a result of congressional action in fiscal year 5, the Administration 

chose to not request any additional changes to its Title 42 authority in the fiscal 

year President’s Budget at this time. It should be noted that as recently as 2014, 

the National Academy of Sciences strongly supported EPA’s use of the Title 42 authority. EPA’s Office of Research and Development (ORD) and the Office of Inspector General (OIG) reached an agreement on the corrective actions to be taken and 

EPA has completed these actions. The OIG has officially closed this audit. The OIG 

report found that ORD has a rigorous, in-depth process for hiring high-quality scientists and science leaders under its Title 42 authority. The Report found no instances of impropriety or mismanagement by EPA of its Title 42 authority and acknowledged ORD had detailed implementation guidance in place. The OIG also 

noted that EPA has undergone other favorable evaluations, such as a 2012 Government Accountability Office audit of EPA’s Title 42 authority. 

Further, the OIG report highlighted ORD’s statements that Title 42 ‘‘allows the 

agency to maintain workforce flexibility and critical expertise in the face of emerging and rapidly changing scientific and technological approaches. The science leaders that ORD has recruited and retained using Title 42 are world-renowned experts 

in their field and are leading cutting-edge research programs in ORD to address the 

environmental issues of the 21st Century.’’ ORD agreed to address the one OIG procedural recommendation contained in the report, which focused solely on perceptions 

of transparency. 

To address the one OIG report recommendation, ORD revised its Title 42 Operations Manual to increase the transparency of ORD’s justification to use Title 42 

authority. The ORD Title 42 Operations Manual has been updated to reflect ORD’s 

periodic reporting and use of Title 42 recruitment request memorandum. The OIG 

has now closed this audit. 

HOMELAND SECURITY

Question 1. Administrator McCarthy, President Obama recently said that terrorism is less of a threat to the American people than climate change. Do you agree? 

Response. Climate change and acts of terrorism are both issues of serious concern 

to the EPA. The EPA’s homeland security budget helps the EPA to address important requirements that are intended to prepare the EPA to respond to and promote 

37 

recovery from significant emergencies, including acts of terrorism and natural disasters. 

Question 2. Does the President’s thinking explain why EPA’s budget request has 

cut homeland security related funding in several important areas? For example, the budget would cut more than $1 million from the Science and 

Technology account for work to treat contamination from chemical and radiological 

incidents (Page 131). The budget would also cut more than $2.5 million from the 

Superfund account reducing EPA’s ability to detect threats and test and decontaminate sites. • Why is EPA cutting back its capability to detect and respond to biological or 

radiological attacks? 

Response. The EPA is maintaining its capability to detect and respond to biological or radiological attacks. Over the past years, the EPA has built, developed, and 

now maintains agency Homeland Security assets that provide critical technical expertise and support during nationally significant incidents including those which 

can involve chemical, biological, radiological, and nuclear (CBRN) agents. EPA also 

continues to provide support in addressing the science and technology needs for response to and recovery from biological and radiological incidents. 

The reductions to the Solid Waste & Emergency Response program will not impact the agency’s ability to respond to incidents. The reductions may affect field 

equipment maintenance and upgrades, such as planned upgrades to the Portable 

High-Throughput Integrated Laboratory Identification System (PHILIS) units. Additionally, there may be reduced agency participation in large-scale exercises that support internal and external coordination on Federal roles and responsibilities. The 

EPA will continue its coordination and integration efforts and its increased leverage 

of resources with our Federal partners to enable the EPA to meet its baseline requirements on Homeland Security Presidential Directives and Homeland Security 

mandates by following an all-hazards approach with emphasis on the most pressing 

capability gaps. The fiscal year EPA’s President’s Budget request of $21.1 million for the Homeland Security Research Program (HSRP) will allow the agency to continue to conduct research that supports the agency in characterization of biological and radiological contamination and decontamination of indoor and outdoor areas as well as 

the management of the resulting waste during response to these incidents. 

In addition, the President’s fiscal year Budget requests increased funding for some 

of the needed operability upgrades to our radiation air monitoring system, RadNet. 

Question 3. The budget for emergency preparedness is essentially stagnant (only a slight $200,000 increase due to higher fixed cost for rent and staff salaries). • What does this mean in practice—fewer air monitoring flights, slower response 

times, increased risks to human health and the environment from a terrorist event? 

Response. The EPA will continue its role in protecting human health and the environment from risks posed by a potential terrorist event, and the fiscal year President’s budget proposal would not impact the agency’s ability to respond to a terrorist event. The proposed budget for the Superfund Emergency Preparedness program adjusts resources for the National Response Team (NRT). The EPA will continue to maintain its significant role in the NRT, but will reduce contractor support 

for NRT committees and subcommittees. 

Question 4. Recent scandals suggest that EPA has a ‘‘culture of complacency’’ 

among some supervisors and managers when it comes to time and attendance problems, computer usage, and property management. • Given these concerns—and ongoing work by the Office of Inspector General— 

I am troubled to see the low priority that EPA places on screening job applicants 

and making sure its employees have been vetted and are suitable for their positions 

of trust. • For example, the homeland security budget for conducting background checks for employees and contractors would be cut by $340,000—even though the John 

Beale episode has highlighted the need for improved background checks. Do you 

think this is the time for EPA to be cutting back on its process for doing background 

checks? 

Response. The EPA continues to perform background investigations in accordance 

with the Office of Personnel and Management (OPM) guidelines. There are no 

planned resource cuts to background investigations for fiscal year 6. The reduction 

cited in the question reflects savings associated with other work in the Homeland 

Security: Protection of EPA Personnel and Infrastructure program. More specifically, the reduction reflects savings associated with transitioning the EPA Personnel 

Access and Security System (EPASS) from development into a State of operation 

and maintenance. EPASS manages the enrollment, printing, issuance, and lifecycle 

38 

of Personal Identity Verification (PIV) credentials as required by Homeland Security 

Presidential Directive 12 (HSPD–12). 

Question 5. The IG has also raised concerns about the Office of Homeland Security and its interference with the IG’s law enforcement work. • How will this be resolved so it does not become a distraction to the Agency and 

impede EPA’s homeland security mission? 

Response. Over the past few months, the Office of Homeland Security (OHS) has 

worked collaboratively with the Office of Inspector General (OIG) to ensure that 

EPA’s homeland security mission is strengthened through timely information sharing and threat management. OHS also has established a process for providing the 

OIG with access to any external law enforcement entity that requests assistance 

from OHS for EPA related counterintelligence or counter terrorism investigative activities. This process ensures that there continues to be no impediment to the OIG’s 

ability to pursue any law enforcement actions or activities that fall within their jurisdiction. 

GAO REPORTS

Question 1. The Government Accountability Office issued a report last year on 

problems with how EPA analyzes its regulations for economic impact, less burdensome alternatives, and uncertainties. GAO found that EPA’s regulatory impact analysis (RIAs) do not clearly identify the costs of EPA’s rules and the data EPA used 

in its analyses were often out of date and irrelevant. 

For example, GAO found that for several high-profile clean air and water rules, 

EPA relied on employment data that was between 20 and 30 years old and from 

only four industrial sectors. The GAO report states, ‘‘Without additional information 

and improvements in its approach for estimating employment effects, EPA’s RIAs 

may be limited in their usefulness for helping decisionmakers and the public understand the potential effects of the agency’s regulations on employment.’’ 

That’s a big problem—that EPA is making these incredibly significant regulatory 

decisions—and the American public, Congress, and even EPA itself do not know 

what the economic impacts or potential job losses will be. 

• Is EPA continuing to rely on the outdated and limited employment data when 

analyzing the potential job impacts of its rules? If not, what is EPA relying on? • How much of EPA’s budget request will be going toward improving and updating the employment data that EPA uses in its economic analysis documents? 

Response. The EPA no longer uses the data and study critically reviewed by GAO. 

Given the dearth of studies and models, the EPA does not use the same approach 

for employment analysis for every rule. As with other analyses in our RIAs, each 

employment analysis is tailored to the specifics of that regulation and reflects the 

degree to which reliable tools and data are available to quantify impacts. When conducting such analysis the EPA uses the best tools and data available for the relevant rulemaking. Often times, EPA conducts original ‘‘bottom up’’ studies that examine the employment used in specific industries and in the manufacturing and operation of pollution abatement equipment. In some cases, the EPA focuses on a 

qualitative discussion of the employment impacts both positive and negative and in 

other cases, it quantifies selected employment impacts. As the GAO acknowledges, 

the agency strives in all instances to transparently describe the strengths and weaknesses of the approach chosen by the agency. The EPA believes that these analyses, 

whether qualitative or quantitative, provide decisionmakers and the public with valuable information on the employment impacts of its rules and has worked hard to 

refine these analyses over time. 

GAO’s discussion of employment impact analysis focuses on one particular study 

that the EPA used to quantify employment effects in two of the seven rules reviewed by the GAO. It is important to recognize that this published study represented the best available peer-reviewed research at the time these RIA’s were conducted and that GAO reported that the EPA’s treatment transparently recognized 

the limitations of the study where it was applied. The EPA recognizes that there 

are limited tools provided in the peer-reviewed economics literature to quantify the 

small shifts in employment that might be attributable to environmental regulation 

and is continually working to improve our approaches. 

It is difficult to assess how much of the budget request the EPA will be using to 

improve and update the employment data in our economic analysis documents. 

Partly this is because economists throughout the agency conduct employment analyses and use the best data available for their particular rules. In addition, analysis 

of employment impacts is one part of a broader analytic effort conducted for agency 

rules, so it is hard to isolate the costs of one aspect of the regulatory analyses. 

39 

The EPA is exploring alternative approaches in the relevant theoretical and empirical economics literature to apply new modeling approaches to quantify employment impacts. In October 2012, the agency convened a scientific workshop with academic economists to examine the theory and methods for understanding employment effects of environmental regulation. The EPA is in the process of updating its 

Guidelines for Preparing Economic Analyses to include revised guidance on assessing employment impacts from regulation. Finally, the EPA has announced the formation of a new Science Advisory Board panel to advise the agency on how best 

to model the economic impacts of environmental regulation, including approaches to 

capture employment effects. This panel plans to convene this summer. Commenters 

also are invited to provide information and data relevant to employment analysis 

during the notice and comment periods on rulemakings. 

Question 2. The GAO report also found that EPA had cut corners in its economic 

analysis due to the short timeframes it had for issuing rules pursuant to court-ordered deadlines and litigation settlements. 

• What criteria does EPA use when agreeing to a rulemaking deadline in a litigation settlement? 

• How does EPA’s obligation to conduct a robust analysis of a rule’s economic impact factor into these court-ordered deadlines, or does it get short shrift in the discussions? 

• Is part of the problem that laws like the Clean Air Act have unreasonable deadlines? 

• Would you support attempts to give EPA additional time under the law to issue 

rules or update standards every 5 or 8 years as currently may be the case? 

Response. Generally, EPA and the Department of Justice (DOJ) seek to settle 

cases brought against EPA if we believe the litigation risk is high and there is a 

resolution consistent with EPA authorities and in the public interest. The factors 

considered in determining whether to settle a particular matter include: the legal 

risks presented by the case, including both the probability and possible consequences of an adverse decision; and the comparative public policy implications of 

litigation versus settlement, including the resources required to litigate versus to 

take those actions called for by a settlement. These factors are applied in an evenhanded manner, without regard to the identity or type of the plaintiff or petitioner 

in the case. 

The environmental statutes as enacted by Congress provide a myriad of regulatory actions that the EPA must take by certain deadlines. These requirements are 

commonly referred to as ‘‘mandatory duties’’ and the cases brought against the EPA 

alleging the Agency has failed to fulfill such duties are commonly referred to as 

‘‘mandatory duty suits.’’ Where the ‘‘mandatory duty’’ allegations are strongly 

grounded in statutory text, the EPA’s litigating position is generally weaker, which 

impacts how the agency evaluates its settlement options. 

While the decision to seek settlement is generally made jointly, DOJ typically 

takes the lead for the United States government in the development of a settlement 

strategy and in negotiating the settlement terms, and for EPA settlements, DOJ’s 

Environment and Natural Resources Division must approve the decision to enter 

into a settlement agreement or consent decree. 

In taking any action, the EPA is guided by applicable legal standards and requirements, as well as the relevant science and analysis. In mandatory duty lawsuits, 

seeking settlement allows the agency to negotiate for more time than it would expect to receive through litigation. Litigating these cases can be expensive litigation 

and result in a court-ordered schedule requiring agency action on an unfeasible 

timeline. By negotiating for an achievable deadline, the agency is able to invest 

more time in the analysis and decisionmaking process. 

The majority of environmental lawsuits against the EPA are brought under the 

Clean Air Act. The Clean Air Act does have many mandatory duties with associated 

deadlines, which are the source of many of the cases we settle. However, before settling these cases, the proposed settlement agreement containing any deadlines goes 

out for public comment. Under Clean Air Act section 113(g), before finalizing a settlement agreement under the Clean Air Act or asking a court to enter a Clean Air 

Act consent decree, the EPA publishes in the Federal Register a notice seeking public comment on the proposed agreement and then considers any comments received. 

The EPA has many duties and authorities under the various environmental statutes it administers. The agency works to protect human health and the environment 

by focusing on critical priorities while also endeavoring to meet recurring statutory 

obligations. 

40 

FACILITIES

Question Administrator McCarthy, EPA’s budget justification says EPA is continuing to recalculate its facility and rent needs. It says that EPA plans to spend 

$1 million from the Science and Technology account to study further consolidation 

(Page 140) and that EPA intends to save $9.5 million from the EPM account from 

these efforts (Page 427). 

• What plans if any does EPA have to close or relocate program, regional or lab 

offices or spaces across the country in fiscal year 6? When will affected offices be 

informed of their closure? Will the affected employees be given the opportunity to 

relocate or transfer to another duty station? 

• How much has EPA spent in fiscal year and 2015 to relocate employees? How 

much does it expect to spend on relocation expenses in fiscal year 6? 

Response. In EPA’s fiscal year budget request, the agency requested $10 million 

to consolidate the Willamette Research Station and the Region 8 laboratory. Employees at the Willamette Research Station and the Region 8 laboratory have been 

informed of the agency’s fiscal year request to consolidate their space. Neither consolidation requires employee relocation. The work being conducted at the Willamette 

Research Station will be moved to the Western Ecology Division’s main facility in 

Corvallis. Employees from the Region 8 laboratory in Golden, CO will be moved to 

EPA’s National Enforcement Investigations Center laboratory in nearby Lakewood, 

CO. In fiscal year and fiscal year consolidation activities were limited to office 

moves within local commuting areas and employee relocation was not required. In 

fiscal year 4, EPA spent $5.4 million to move the offices of approximately 500 employees from 1310 L Street to the agency’s Federal Triangle Campus in Washington, 

DC. In fiscal year 5, the agency spent $196.4 thousand in employee relocation expenses associated with facility consolidation. The agency does not anticipate using 

additional resources for the remainder of fiscal year to move employees into new facilities. 

SUPERFUND/HAZARDOUS WASTE

Question 1. The fiscal year budget shifts EPA’s emphasis from well-established 

programs approved by Congress to ones that advance the President’s Climate Action 

Plan. 

• For example, the budget would cut almost $1 million and 5 FTEs from its RCRA 

corrective action program, which will reduce ‘‘EPA’s technical support to State partners and may reduce the pace of cleanups including site-wide ’RCRA remedy construction’ determinations.’’ How will this reduction impact EPA’s implementation of 

recommendations in the Government Accountability Office’s 2011 report concerning 

RCRA corrective actions? 

• How will EPA prioritize its work and support to states in response to the proposed reductions in funding? 

• Will any sites or states that would have received support in order for EPA to 

meet its corrective action goals in the fiscal year 4–2018 Strategic Plan, no longer 

receive support due to the proposed reductions in funding? 

• In another example, the fiscal year budget request would cut funding for the 

RCRA waste management program by $1.3 million and more than 9 FTEs, which 

according to EPA’s budget justification ‘‘may delay activities such as conducting additional analysis to support non-hazardous secondary materials categorical 

rulemakings and responding to regulatory backlog petitions.’’ Please identify how 

many ‘‘regulatory backlog petitions’’ EPA had at the start of fiscal year and the 

backlog time for each petition. 

• How will this proposed reduction impact EPA’s implementation of the final Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities rule, signed by EPA on December 19, 2014? 

Question 2. Notably, the fiscal year budget proposed a $2.3 million increase, including an additional 4.2 FTEs, for the Sustainable Materials Management program 

to implement key aspects of the President’s Climate Action Plan. 

• The budget justification states EPA will explore the application of Sustainable 

Materials Management ‘‘approach to other high priority areas.’’ What are these 

areas? 

• The budget justification also states that EPA plans to hire 5 FTEs to serve as 

‘‘Community Resource Coordinators for climate adaptation, sustainability, and communities work’’ who will ‘‘work as a cross-agency, multi-media team to facilitate access to EPA’s programs and resources.’’ Please explain whether these would be perVerDate Aug 31 2005 15:24 Aug 13, 2015 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94980.TXT VERN
41 

manent or term-limited positions, the professional qualifications for these positions, 

and from what Headquarters or regional office such positions would be based. 

• The budget request proposes the creation of a $1.3 million grant program ‘‘to 

support the EPA’s investment in climate mitigation through waste program activities to reduce greenhouse gas emissions.’’ Please describe the statutory authority for 

this program, the anticipated number of grants that would be funded in fiscal year 

6, and a summary of the criteria EPA would use for grant awards. 

Question 3. Concerns remain about the slow pace of Superfund cleanups. In fiscal 

year 4, EPA achieved construction completions at only 8 Superfund sites, an all-time 

low, with an enacted budget for Superfund cleanups at $555 million. In fiscal year 

6, EPA is proposing to achieve construction completions at 13 sites with a budget 

request of $539 million. How many additional Superfund sites would EPA be able 

to clean up if the $214 million that the President has requested for greenhouse gas 

rules were put toward the Superfund program instead? 

Responses. As GAO recommended, the EPA is assessing the remaining corrective 

action workload, evaluating the resource needs to meet these goals, and considering 

revising the goals. This reduction in corrective action resources will not delay the 

continued assessment of remaining workload and predictions for future progress. 

The reduction may, in the short-term, have an impact on EPA’s ability to meet our 

site-wide remedy construction fiscal year and fiscal year targets. 

• The EPA will continue to work closely with states to prioritize technical assistance and work sharing for facilities or work areas where there is the greatest need, 

and will continue to share program efficiencies to facilitate cleanup at corrective action facilities and polychorinated biphenyls (PCB) sites. 

• The fiscal year President’s Budget requested funding equal to the fiscal year enacted level for the Hazardous Waste Financial Assistance program which provides 

resources to our State partners to fulfill their RCRA obligations which includes corrective action activities. The proposed reductions to the RCRA Corrective Action program will not eliminate support to any specific State or facility, but will be distributed nationwide. The funding level allows for continued, although not fully maximized, progress on cleanups. 

• Since 1998, the EPA has received 15 RCRA formal rulemaking petitions and 

EPA has responded completely to three of these (Coal Combustion Residuals, Saccharin, and Gasification). At the start of fiscal year 5, the EPA has 12 ‘‘regulatory 

backlog petitions.’’ Of these 12 petitions, three are actively being addressed (two for 

Non-Hazardous Secondary Materials and one for Corrosivity); the others are under 

review. In addition, EPA receives approximately 30—40 ‘‘informal’’ requests for regulatory interpretations or assistance with specific emerging waste management situations over the course of a given year. These requests come from the regulated community, from states, citizens, and from foreign governments. Often these are complex, requiring the agency to obtain additional information about specific situations 

or industrial processes before being able to respond. 

• The proposed reduction will not impact implementation of the final Coal Combustion Residuals Rule. 

Within and outside of the Federal Government, the EPA has been working to reduce food loss and food waste through Sustainable Materials Management (SMM) 

approaches such as smarter purchasing and food donation. In addition, the residential and commercial building sector stands as an area where SMM principles can 

make a substantial impact with smart design choices, safer materials choices, and 

reuse and recycling of materials. Over the next several decades, billions of tons of 

concrete, steel, and wallboard will be required to construct, maintain, and operate 

our nation’s buildings, roads and other infrastructure, resulting in substantial environmental impacts, including energy and petroleum consumption, use of non-renewable mineral resources, greenhouse gas emissions, expenditure of fresh water, and 

land and habitat use. 

• The Community Resource Coordinator positions are intended to be permanent 

employees in the Regions. Each Region will receive 0.5 full-time equivalent employee dedicated to working as cross-agency, multi-media team members. The precise professional qualifications for the positions have not been finalized at this time. 

However, coordinators will be expected to have knowledge of and a firm grasp on 

sustainability concepts such as SMM, green infrastructure, smart growth, and 

brownfields. Further qualifications will include demonstrated experience regarding 

community support entities and mechanisms (i.e., the EPA’s programs and other 

programs across the Federal spectrum that impact environmental outcomes). 

• The statutory authority for the proposed $1.3 million grant program is the Solid 

Waste Disposal Act § 8001—Research, Demonstrations, Training, and Other Activities. The EPA estimates that approximately 8–13 grants would be funded in fiscal 

42 

year 6. These funds will focus on: increasing the recycling rates for containers and 

packaging; enhancing and expanding results-driven programs; working with the 

public and/or private sector to provide funding to assist states and local governments and non-governmental organizations (NGO’s) focused on infrastructure development and providing technical assistance to recycling programs. Support in this 

program area will help to create new businesses and jobs in a sector that employs 

1.1 million people at approximately 56,000 establishments, generating an annual 

payroll of nearly $37 billion, and more than $236 billion in annual revenues. Criteria for the grant awards would potentially include support of agency recycling 

goals, community/stakeholder needs, feasibility of project success, project benefits 

(e.g., policies, tools, job creation, economic and social benefits, among others), and 

the ability to leverage existing initiatives and partners. The EPA also will work 

with additional stakeholders to ensure consistent recycling guidance, identify gaps 

and recycling barriers, and transfer best practices. The reporting period for grants 

is anticipated to extend beyond 1 year, in order to measure changing recycling rates. 

The Superfund Remedial program has made substantial progress in completing 

response work, as measured by the site-wide ‘‘construction completion’’ measure, 

though this is only one of a suite of measures used to gauge Superfund outcomes. 

As of the end of fiscal year 4, EPA had achieved construction completions at over 

68 percent of the 1,706 Superfund sites on the National Priority List (NPL). 

As part of the fiscal year budget request, the President has requested an increase 

in the Superfund Remedial program budget of more than $38 million and an increase in the Superfund Removal budget of more than $9 million. The EPA anticipates the increase in Remedial funding will enable the agency to start remedial action at up to 10 additional EPA funded site projects. It is difficult to assess how 

many Superfund sites could be completed with as much as $214 million in additional funding. Partly, this is because each site is different with unique site characteristics, so that site-by-site, cleanup costs would be expected to be very different. 

Some sites cost in the tens to hundreds of millions of dollars to complete. In addition, to move a site to completion, site investigation and studies, and remedy selection and design must be completed before starting and completing cleanup construction. 

KEYSTONE

Question 1. Administrator McCarthy, in January of this year you stated that EPA 

believes current low oil prices are a short-term situation and will not affect how 

your Agency crafts new regulations. 

• Do you still stand by that statement? 

• Can you please explain to me why 3 weeks later EPA told the State Department 

that it should revisit its analysis of the Keystone XL pipeline with a new assumption that the current low oil prices are permanent? 

• As a general rule, you ignore short-term oil prices when evaluating costs and 

benefits. But, politics appear to determine when you make an exception to that rule. 

How can you reconcile this inconsistency? 

Question 12. The statement regarding current oil prices was a comment on consumer automobile buying habits, and was not intended to represent the agency’s 

regulatory development process. Administrator McCarthy also noted that she did 

not expect that oil prices would continue to have ‘‘extreme fluctuation[s].’’ 

The EPA’s comment letter to the Department of State did not suggest an assumption that current low oil prices would be permanent. Instead, the EPA noted that 

given the importance of oil prices to the Department of State’s market analysis and 

conclusions, and the recent large declines in oil prices and the uncertainty of oil 

price projections, we recommend that the additional low price scenario included in 

the Final EIS be given additional weight in considering potential environmental impacts of the project. 

The EPA considers all relevant information when evaluating costs and benefits of 

its proposed regulations. With regard to our comments to the Department of State 

concerning the Keystone XL pipeline, the Department of State’s Final Supplemental 

EIS identified the price of oil as a key and critical determinant of the effect of the 

pipeline on Canadian oil sand development and thus the environmental impacts of 

the project. The EPA’s comments only recommended that they more fully consider 

the low oil price scenario when evaluating the environmental impacts of the project. 

43 

METHANE

Question 1. Administrator McCarthy, the Administration has acknowledged the 

great benefits that we are now enjoying as a result of the natural-gas renaissance 

in the US. In fact, the US is now the world’s largest gas producer. As this was occurring, our nation’s producers have been making great strides in reducing methane 

emissions thanks to investments in technology allowing us to produce more natural 

gas in a cleaner way. In fact, today, while natural gas production has increased 37 

percent since 1990, methane from production has gone down by 25 percent. I am 

concerned as such by your January announcement regarding methane regulation. 

• Why are you targeting such a steep 45 percent reduction in emissions from an 

industry that has already reduced its emissions significantly while increasing production? Moreover, the production sector represents only 0.4—1.4 percent of U.S. 

GHG emissions. 

Question 2. In the Administration’s January 14th release to reduce methane emissions from this industry, an assumption was given projecting that industry’s methane emissions will be increasing by 25 percent—not decreasing as already shown. 

Question 1. Can you explain this assumption and provide the specific data from 

which you’ve based these projections? 

Question 3. Administrator McCarthy, I’m trying to understand EPA’s rationale for 

pursuing another round of Clean Air Act regulations on natural gas production. This 

time the agency is directly targeting methane. I think it’s important to note the industry’s progress in reducing methane. Natural gas producers have reduced methane emissions by 25 percent since 1990, even as production has grown 37 percent. 

A recent report by researchers at the University of Texas and the Environmental 

Defense Fund (EDF) found that methane emissions from the upstream portion of 

the supply chain are only 0.38 percent of production. That’s about 10 percent lower 

than what the same research team found in a study released in September 2013. 

Studies by the National Renewable Energy Laboratory, U.N. IPCC, Massachusetts 

Institute of Technology, and many others reached similar conclusion: that methane 

emissions from natural gas production are declining, and quite low compared to 

other sources. 

Moreover, we can’t forget that methane is the main component of natural gas. 

Producers have every incentive to capture it and prevent leaks. The evidence I just 

cited shows this is exactly what they are doing. 

The industry is only now implementing new source performance and MACT 

standards finalized in 2012, which target VOCs and sulfur dioxide, but also will 

help reduce methane. So Administrator, my question is: Why is EPA pursuing another round of mandates on the industry? What is the rationale for moving down 

this path? 

Question 4. Administrator, EPA indicated it will develop new source performance 

standards for new and modified natural gas wells this summer. This action will be 

taken pursuant to Section 111(b) of the Clean Air Act, which covers new and modified sources. Some legal commentators believe that this action will provide the basis 

for regulations of existing wells under Section 111(d). What is EPA’s legal view on 

this point? Once you finalize regulations under 111(b), are regulations for existing 

wells inevitable under 111(d)? Is EPA planning or thinking about regulation existing wells under 111(d)? 

Response. Methane, the key constituent of natural gas, is a potent greenhouse gas 

with a global warming potential more than 25 times greater than that of carbon dioxide. Nearly 30 percent of methane emissions in the U.S. in 2012 came from oil 

production and the production, processing, transmission and distribution of natural 

gas. While methane emissions from the oil and gas industry have declined by more 

than 10 percent since 1990, they are projected to increase significantly over the next 

decade if additional steps are not taken to reduce emissions from this rapidly growing industry. EPA’s strategy, which will use both voluntary and regulatory approaches, will help avoid this anticipated increase in methane emissions from new 

sources. 

The January 14, 2015 announcement marked the beginning of the agency’s process to develop proposed standards for methane and VOC emissions for new and 

modified sources in the oil and gas sector. As is the case with all of our regulatory 

actions, EPA will develop a robust regulatory impact analysis that will include, 

among other issues, a rigorous analysis of projected future emissions from this sector that would be avoided by the implementation of the proposed standards. To ensure the agency’s projections are based on the very best data available, EPA’s analysis will take into account additional information from industry, states, and other 

44 

stakeholders and will follow the time-tested methodologies used in all of our regulatory impact analyses. The agency’s analysis will be issued along with a proposal 

this summer and will be available for public review and comment. 

Methane emissions accounted for nearly 10 percent of U.S. greenhouse gas emissions in 2012, of which nearly 30 percent came from the production transmission 

and distribution of oil and natural gas. Emissions from the oil and gas sector are 

down 16 percent since 1990 and current data show significant reductions from certain parts of the sector, notably well completions. Nevertheless, emissions from the 

oil and gas sector are projected to rise more than 25 percent by 2025 without additional steps to lower them. For these reasons, a strategy for cutting methane emissions from the oil and gas sector is an important component of efforts to address 

climate change. 

The steps announced are also a sound economic and public health strategy because reducing methane emissions means capturing valuable fuel that is otherwise 

wasted and reducing other harmful pollutants—a win for public health and the 

economy. Achieving the Administration’s goal would save up to 180 billion cubic feet 

of natural gas in 2025, enough to heat more than 2 million homes for a year and 

continue to support businesses that manufacture and sell cost-effective technologies 

to identify, quantify, and reduce methane emissions. 

On January 14, 2015, the EPA announced plans to set standards under 111(b) to 

address methane and VOC emissions from new and modified sources, develop new 

guidelines to assist states in reducing ozone-forming pollutants from existing oil and 

gas systems in areas that do not meet the ozone health standard and in states in 

the Ozone Transport Region, and work collaboratively with key stakeholders to 

make progress on voluntary efforts to reduce emissions from existing sources. 

ENVIRONMENTAL EDUCATION

Question For its fiscal year budget proposal, EPA requested zero funds for its environmental education program; yet its fiscal year budget proposal requests funds 

albeit an increase in funds from $8.7 million enacted in fiscal year to $10.969 million. 

• Why did EPA, after requesting zero funds for the program over the last couple 

years, request funds and an increase in funding for the program? • EPA has recently identified climate change as a priority for environmental education grants under this program. These grants are used to educate elementary and 

secondary school students, train teachers, purchase textbooks, and develop curricula 

based on environmental issues EPA identifies as a priority. What performance 

measures are in place to ensure such curricula is based on the best available 

science? 

Response. The recent establishment of the Office of Public Engagement and Environmental Education (OPEEE) with a career deputy to lead OEE is designed to provide leadership, management stability, and forward-thinking strategy to establish 

and implement a consistent vision for environmental education (EE) across the 

agency. Ensuring a centralized approach to EE and partnering the public engagement and EE functions within OA is intended to help EPA: 

• place greater emphasis on EE as a tool for advancing priorities by providing 

leadership, technical expertise and coordination of agency efforts; • enable EE to be more effectively and consistently used by the EPA’s programs; 

and • broaden the reach and scope of EE (through greater public engagement). 

Reinstating the EE program project in fiscal year is a visible commitment to enhancing the agency’s leadership role in educating and informing the public and encouraging environmentally beneficial attitudes and actions. A centralized EE program will allow the EPA to: 

• improve internal EE capacity within program offices through greater provision 

of OEE expertise; • support the National Environmental Education Foundation (NEEF) and other 

stakeholders to leverage their resources for greater stakeholder reach; and • avoid significant administrative complexities associated with awarding grants 

under multiple authorities (under a decentralized approach) and ensure grants monitoring and compliance 

This program has requested in fiscal year an increase to help meet the required 

staffing levels and corresponding funding requirements under the National Environmental Education Act. The request also reflects increased support for administration 

of EE grants; advancement of the frameworks and tools used for measuring EE impacts; development of a process to identify and address gaps and redundancies in 

45 

EE materials and programming within the agency; leveraging of EE efforts across 

the Federal Government; and development of the longer-term strategic direction for 

the program. 

In order to be eligible for a grant under the EPA’s Environmental Education (EE) 

Grant program, proposals must address at least one of the EPA’s environmental 

themes and at least one EPA educational priority. The EE Grant Program does not 

assign order of importance or preference to those themes. According to the National 

Environmental Education Act (NEEA), grant funds can be used to support development and dissemination of curricula, educational materials, and training programs 

for teachers, plus the education of elementary and secondary students and other interested groups, including senior Americans in both formal and non-formal educational settings. 

The annual grants are awarded through a competitive process, and applicable 

Federal guidelines and policies are followed for grant solicitations, proposal evaluation, and grant awards. The solicitations for EE grants includes a requirement that 

grantees collect and report applicable data as a condition to accepting a grant. 

Grantees are also required to submit a logic model with their initial proposal to 

identify short-, medium-and long-term educational and environmental outputs and 

outcomes of the project(s). As a further condition of eligibility, grantees must describe how they will evaluate the success in achieving the proposed project results 

and must submit a completed evaluation on the project’s performance at the end of 

the project. In the application as well as in their progress reports, they must demonstrate the educational component of their program, including the best available 

science upon which it is based. By law, post-award baseline monitoring must be conducted on every EE grant, and at least every 6 months all grantees are required 

to report on the progress, accomplishments, and funding associated with the project. 

URANIUM AND THORIUM MILL TAILINGS—RULEMAKING

Question 1. In January, the U.S. Environmental Protection Agency proposed 

‘‘Health and Environmental Standards for Uranium and Thorium Mill Tailings (80 

Fed. Reg. 4156). The agency maintains the rulemaking is necessary to reduce the 

risk of undetected excursions of pollutants from in situ uranium recovery operations 

into adjacent aquifers. 

• Does the agency have any evidence that these operations have adversely impacted an adjacent aquifer? If so, please provide such data. 

• Please explain why no such data is included in the rulemaking docket. 

• If EPA has no such data, please explain the basis for proceeding with this rulemaking. 

Response. The EPA, as well as the general public, have access to NRC data on 

ISR facilities. More information concerning in-situ recovery (ISR) wellfield baseline 

and restoration groundwater quality data collected from the NRC licensed ISR sites 

for regulatory purposes can be found at http://www.nrc.gov/info-finder/materials/uranium/. Generally the data is current through 2013 and shows both excursions and 

in at least one case, stability monitoring for as long as 10 years. 

The current requirements at 40 CFR Part 192 address conventional uranium facilities but do not specifically address ISR operations. ISR operations are now the 

most common method for extracting uranium. In order to understand some of the 

reasons the EPA proposed the rule, it is helpful to understand the history related 

to ISR licensing and regulation. In 2006, after years of implementing the general 

requirements in 40 CFR Part 192 at ISR facilities, NRC said that the ‘‘manner of 

regulation [of ISR facilities] is both complex and unmanageable’’ and has led to an 

‘‘inconsistent and ineffective regulatory program [for these types of facilities].’’ In 

2007, NRC began developing new rules to address the issues at ISR facilities but 

stopped because the Atomic Energy Act (AEA), as amended by the Uranium Mill 

Tailings Radiation Control Act (UMTRCA), requires that the EPA promulgate generally applicable standards, which are then implemented and enforced by NRC. 

In past and present efforts to implement the general requirements in 40 CFR Part 

192 at ISR facilities, requirements vary from site to site rather than following a consistent, national approach for all ISR facilities. The proposal presents health or environmental standards tailored specifically to address the technologies and challenges associated with the most widely used method of uranium recovery. 

The proposed standards will regulate byproduct materials produced by uranium 

ISR, with a primary focus on groundwater protection, restoration and stability. The 

proposed rule will reduce the risk of undetected excursions of pollutants into adjacent aquifers. This in turn will reduce the human health risks that could result 

from exposures to radionuclides in well water used for drinking or agriculture in 

46 

areas located down-gradient from an ISR In addition to avoiding human health impacts, the proposed rule has the potential to detect excursions sooner and thus enable a faster remedial response. Because plumes detected during long-term stability 

monitoring would be smaller, costs of remediation would be potentially much lower. 

The proposal would also lessen the likelihood of undocumented contamination of 

aquifers resulting in costly cleanup, potentially funded by the U.S. Government 

rather than the responsible party (e.g. the ISR facility). Citizens located near these 

ISR operations have commented that they are concerned about these facilities and 

have requested that EPA finalize this proposal. The intent of the Part 192 proposal 

is to establish requirements that will ensure the ISR facility that disturbs the 

groundwater must restore that groundwater to predetermined levels and ensure 

that the restoration is stable before leaving the site and terminating its NRC license. 

Question 2. In the cost benefit analysis accompanying the rulemaking, the agency 

focuses almost exclusively on the increased costs that would be imposed by the proposed rule’s new monitoring requirements, which could require facilities to conduct 

more than 30 additional years of groundwater monitoring. EPA fails to assess multiple other costs that would be associated with the rule, including the costs of maintaining licenses, permits, etc. for 30 years; claims maintenance fees owed to the Bureau of Land Management for facilities on public lands; costs to obtain and maintain 

surety for additional years; costs related to continuing leases with private surface 

holders; taxes; insurance; or the cost of maintaining equipment and facilities. Given 

the additional costs that would be imposed, it is likely that the ultimate cost would 

be several orders of magnitude higher than EPA calculated in their cost benefit 

analysis. 

• Please explain why EPA chose to ignore these costs in its analysis. 

• Does EPA plan to revise its cost benefit analysis to more comprehensively assess 

the costs of the rulemaking? If not, why not? 

Response. License fees range from $35,400 to $40,000 per year, but drop to zero 

if only decommissioning is occurring. Financial assurance costs continue through decommissioning, but decline as more of the site is decommissioned. Throughout the 

life of an ISR operation, the costs associated with licensing and financial assurance 

would, in EPA’s assessment, be unaffected by the proposed rule, until only one 

wellfield is still in operation or undergoing decommissioning. The longer duration 

of monitoring required would cause the firms to incur the costs associated with financial assurance for a longer period of time (potentially 30 years). However, as the 

number of wellfields in operation declines, and the amount of radioactive material 

onsite declines, the magnitude of the financial assurance required would decline proportionally. EPA thus believes that the additional costs associated with payment of 

license fees and financial assurance would be small relative to other incremental 

costs and thus we did not include them in our quantitative estimate of costs and 

impacts. 

RESPONSES BY GINA MCCARTHY TO ADDITIONAL QUESTIONS

FROM SENATOR WICKER

CARBON DIOXIDE

Question 1. As I hope you know, a one-sided focus on worst-case stories and scenarios is a poor foundation for sound environmental and economic policies. There 

is an extraordinary amount of uncertainty in climate science mainly because of the 

complex nature of the climate and climate models. Climate model predictions have 

wildly varying degrees of accuracy and many have estimates that failed to come to 

fruition. With so much uncertainty and unknown variables regarding the impacts 

of carbon dioxide on the world’s oceans and environment how can you possibly accurately estimate the costs and benefits of your proposals? Considering you can’t provide a quantifiable, measurable direct impact of these regulations on sea level rise 

and global temperatures, don’t you think the other supposed benefits to society are 

equally uncertain and overstated? 

Response. Actions taken to comply with the proposed guidelines will reduce emissions of CO2 2 and other air pollutants, including SO2 NOx and directly emitted 

PM2.5 , from the electric power industry. States will make the ultimate determination as to how the emission guidelines are implemented. Thus, all costs and benefits 

reported for this action are illustrative estimates. The EPA has calculated illustrative costs and benefits in two ways: One based on an assumption of individual 

State plans and another based on an assumption that states will opt for multi-State 

plans. The illustrative costs and benefits are based upon compliance approaches 

47 

that reflect a range of measures consisting of improved operations at EGUs, dispatching lower-emitting EGUs and zero-emitting energy sources, and increasing levels of end-use energy efficiency. The annual compliance costs are estimated using 

the Integrated Planning Model (IPM) and include demand-side energy efficiency program and participant costs as well as monitoring, reporting and recordkeeping costs. 

Question 2. With each and every climate regulation put forward by the administration, the supposed benefits of each regulation continue to get smaller and smaller 

and more imaginary while the costs to American taxpayers and the economy continue to grow. A sound environmental and economic policy would place amount of 

regulation, in this case carbon dioxide emissions, where the marginal benefits are 

equal to the marginal costs. It seems the opposite is true in the latest EPA budget 

proposal. While carbon dioxide emissions continue to rise across the globe, at what 

point will EPA begin to allocate their limited budgetary resources to other programs 

that have greater benefits to American taxpayers while imposing lower costs on 

them? 

Response. By 2030, the Clean Power Plan proposal would cut carbon emission 

from the power sector by 30 percent nationwide below 2005 levels, which is equal 

to the emissions from powering more than half the homes in the United States for 

1 year. These measures will avoid up to 6,600 premature deaths, up to 150,000 asthma attacks in children, and up to 490,000 missed work or school days providing up 

to $93 billion in climate and public health benefits, which far outweigh the costs 

of the plan. 

Question 3. In the fiscal year budget request, EPA notes it will be finalizing rules 

for formaldehyde emissions in composite wood products. Why has EPA decided to 

regulate laminated products when the authorizing legislation gives you authority to 

exempt those products? The testing costs far exceed any benefit considering that 

studies submitted to EPA show that the value added process of finishing laminated 

products can reduce the emission profile of an already compliant platform. 

Response. The Formaldehyde Standards for Composite Wood Products Act (TSCA 

Title VI), enacted by Congress in 2010, establishes formaldehyde emissions standards for hardwood plywood, particleboard, and medium density-fiberboard. Congress 

also provided the EPA with the authority to exempt some or all laminated products 

from the definition of hardwood plywood pursuant to a rulemaking under TSCA 

Title VI, which shall be promulgated ‘‘in a manner that ensures compliance with 

the [statutory] emission standards.’’ The information available to the EPA at the 

time the regulations were proposed in June of 2013 did not indicate that laminated 

products would be in compliance with the emission standards, and therefore the 

agency did not propose an exemption for all laminated products from the proposed 

regulations. The agency did however, propose to exempt laminated products that are 

made with compliant cores and laminated with ‘‘no-added-formaldehyde’’ resins because we concluded that such exemptions would be consistent with the statutory directive. 

As directed by the Act, the EPA is continuing to evaluate all available and relevant information from State authorities, industry, and other available sources to 

determine whether the definition of hardwood plywood should exempt engineered 

veneer or any laminated product. In an ongoing effort to reach out to potentially 

affected stakeholders, the EPA met and continues to meet with companies and trade 

associations that represent, among other members, producers of laminated products. 

As part of this effort, the EPA has specifically requested data on formaldehyde emissions from laminated products, as well as comments and information on the proposed definition of laminated products. The initial comment period for the implementing regulations was twice extended at the request of a number of industry 

stakeholders and closed on October 9, 2013. In spring 2014, the EPA provided an 

additional public comment period on the proposed rule and conducted a public meeting on laminated products to address issues of concern to stakeholders. In addition, 

the EPA has met regularly with the California Air Resources Board (CARB). The 

agency is working to develop an approach to laminated products that would address 

potentially significant formaldehyde emissions while recognizing industry concerns 

over testing costs and burdens, particularly for small businesses. 

Question 4. With respect to the ongoing rulemaking on formaldehyde emissions 

in composite wood products, you recently stated that laminates could potentially be 

a ‘‘significant source of emissions.’’ Does EPA have scientific data that validates that 

statement? Will you share it with the committee? Data submitted to the public 

record during the rulemaking shows that the value added process of finishing laminated products can reduce the emission profile of an already compliant platform. 

Response. In developing the proposed laminated products provisions, the EPA consulted several sources of information, including a 2003 Composite Panel Association 

48 

technical bulletin on laminates, as well as information provided by small entity representatives to the Small Business Advocacy Review Panel held for the proposed 

regulations. During the public comment periods, the EPA received additional information, including test results that appear to confirm that the lamination process 

can increase formaldehyde emissions. The California Air Resources Board (CARB) 

submitted results from their testing of laminated products, which are available in 

the docket for this rulemaking at http://www.regulations.gov/ 

#!documentDetail;D=EPA-HQ-OPPT–2012–0018–0515 and are also attached. According to CARB, the results indicated that, in several instances, the laminated 

products emitted considerably more formaldehyde than was emitted by the cores, 

likely due to the urea-formaldehyde resin used to affix the veneer. In addition, 

CARB noted that, while most samples with no stain or finish had higher emissions 

than identical products with a stain, indicating that the application of stain can reduce formaldehyde off-gassing and decrease exposures to formaldehyde, a number 

of samples with a stain still emitted more formaldehyde than the cores. 

Question 5. The academic and scientific communities are actively pursuing research into the magnitude of methane emissions from various sectors of the U.S. 

economy. With much of this research outstanding, why doesn’t EPA wait to understand the major sources of methane emissions before promulgating regulation? 

Response. Methane, the key constituent of natural gas, is a potent greenhouse gas 

with a global warming potential more than 25 times greater than that of carbon dioxide. Nearly 30 percent of methane emissions in the U.S. in 2012 came from oil 

production and the production, processing, transmission and distribution of natural 

gas. Methane emissions are projected to increase by about 25 percent over the next 

decade if additional steps are not taken to reduce emissions from this rapidly growing industry. 

Question 6. EPA’s announcement last month on methane regulation indicated that 

there was no intention to regulate existing sources in the oil and gas industry at 

this time, instead, the agency would allow for voluntary actions by industry for existing sources. Aren’t the control technique guidelines, coupled with your pending 

ozone regulation essentially a defacto regulation of existing sources in the industry? 

Response. The EPA will develop new guidelines to assist states in reducing ozoneforming pollutants from existing oil and gas systems in areas that do not meet the 

ozone health standard and in states in the Ozone Transport Region. These guidelines will also reduce methane emissions in these areas. The guidelines will help 

states that are developing clean air ozone plans by providing a ready-to-adopt control measure that they can include in those plans. 

Senator INHOFE. Thank you very much. 

We are going to have 6-minute rounds and use the early bird 

rule which we established when we changed things around here. I 

will begin and probably will not take all of my time because I want 

to reserve some in case some of my colleagues want to have more 

time. 

The EPA is asking for, as I said in my opening statement, $3.5 

million for additional attorneys and lawyers to defend their proposals. My question would be if the States requested a judicial stay 

of the rule after it is finalized to allow for legal challenges to the 

rule to be resolved, would the EPA object to that request for a stay? 

Ms. MCCARTHY. We see no reason for a stay in the rule, Senator, 

but if you are looking at the lawyers we are asking for. 

Senator INHOFE. I am talking about the existing source rule. 

Ms. MCCARTHY. We are not interested in staying any of the 

rules, Senator. We don’t think there is a reason for it. We are moving ahead to finalize those rules. 

The lawyer issue is not related to our climate effort. It is related 

to regional and headquarters efforts to provide the resources we 

need to smoothly move through permits, to get our legal positions 

on our rules effectively identified and commented on. 

Senator INHOFE. I understand your answer is no. Now I will ask 

the second part of that question. As soon as some of the States 

refuse to submit a SIP, a State program, or if the EPA denies the 

49 

State SIP, would the EPA consider withholding Federal highway 

funding or would you say no? 

Ms. MCCARTHY. This is not a traditional State SIP under the national ambient air quality standards. There are other processes for 

us to work with States. Clearly our hope is that States will provide 

the necessary plans. If not, there will be a Federal system in place 

to allow us to move forward. 

Senator INHOFE. For the benefit of some who may not be aware 

of why we have been talking so much up here, it seems like every 

hearing we have turns into a global warming hearing. One of the 

reasons people are talking about doing this through regulation is 

that ever since 2003 we have had four votes in the U.S. Senate to 

go ahead and do something, have some kind of cap and trade they 

are now talking about doing through regulation. 

It was soundly defeated four times. Now the Obama administration is saying we will do through regulation what we were unable 

to do through legislation. 

Ozone is a big deal for a lot of us. The 2008 implementation program, which planned for a 2008 ozone NAAQS was issued 2 weeks 

ago. I made the statement in my opening that there are a lot of 

States which have not complied with 2008, correct? 

Ms. MCCARTHY. That is correct. 

Senator INHOFE. Do you know how many States? 

Ms. MCCARTHY. I do not know, sir, because we are in the early 

stages of implementing the 2008 standard. 

Senator INHOFE. We have a standard of 75 ppb. A new standard 

they have tested down to 65 ppb and even 60 ppb. Even 65 ppb, 

in my State of Oklahoma, would put all 77 of our counties out of 

attainment. That is a very serious thing. 

What is the justification for going ahead and moving toward this 

before we have had compliance with the 2008 regulations? What is 

your justification for that? 

Ms. MCCARTHY. Actually, we are under a court order to move forward because the Clean Air Act enacted by Congress requires us 

to review these every 5 years and we are significantly behind. 

The good news is this rule is simply looking at the level we need 

to achieve in order to protect public health and welfare. That is 

what we are going to be making a decision on. 

Senator INHOFE. As opposed to moving on with that rule? 

Ms. MCCARTHY. We don’t have an option here. The Clean Air Act 

requires us to look at the science as it is updated every 5 years. 

The court has told us that is what it says over and over. 

Senator INHOFE. That same court was there in 2008 when many 

States had not complied with that. That is my point. I don’t see 

any logical reason we would move to a more stringent standard 

when we haven’t complied with that. 

I am going to save the remaining 2 minutes of my time. Senator 

Cardin? 

Senator CARDIN. Thank you, Mr. Chairman. I appreciate it very 

much and appreciate this hearing. 

Ms. McCarthy, it is always a pleasure to have you before the 

committee. 

50 

Senator INHOFE. I am going to interrupt you. She has been chairman for the last 8 years and I am just not used to this, so I won’t 

recognize you. I will recognize Senator Boxer next. 

Senator BOXER. To thoroughly confuse matters, I yield my time 

to Senator Cardin and will take mine later. 

Senator CARDIN. Thank you, Senator Boxer and thank you, Mr. 

Chairman. 

Mr. Chairman, I just want to make a point. Only in the U.S. 

Senate would getting a majority vote, 50 some votes, in favor of a 

proposal be characterized as soundly defeated. 

My recollection is the cap and trade provision, to which you referred, got over 50 votes in the U.S. Senate. I just wanted to correct 

the record on that point. I am sure the public understands that a 

majority is not a majority in the U.S. Senate. 

I want to compliment you on your budget as it relates to important priorities. I think the overall budget is a reasonable investment in the Environmental Protection Agency and I applaud the 

Administration for bringing that forward. 

I think the emphasis on climate change as it relates to U.S. leadership that will have, I think, major dividends in global action 

which help the people of our Country, is exactly where we need to 

be. Your budget reflects those priorities. 

I want to first start by saying I am very supportive of the priorities that you have set as it relates to the size of the EPA budget 

and the focus on issues that are critically important to our Country. 

I want to ask you why you are recommending a reduction in the 

State Revolving Fund on clean water. I want to preface that by 

telling you I know the circumstances in Maryland and the circumstances around the Nation where water main breaks are a 

daily occurrence, where we had River Road in Montgomery County 

become a river threatening peoples’ lives, where we have seen businesses shut down, where we have seen the Beltway shut down because of water main breaks. I visited Baltimore water main facilities and found water mains that are 100 years old and in desperate 

need of repair. 

Our States are crying out for more resources in the State Revolving Fund. Can you explain to me the rationale for the recommendation on the State Revolving Fund? 

Ms. MCCARTHY. Senator, there is no question that this is a level 

that is $50-some odd million below what was enacted last year. I 

will have to point out though it is $527 million above what the 

President requested last year. We certainly recognize there are significant challenges out there and are doing the best we can within 

a conservative and appropriately designed budget. 

Senator CARDIN. I am going to let you finish your answer but it 

seems to me you are saying that you are depending on Congress 

to put in the right amount of money? 

Ms. MCCARTHY. We have actually submitted a budget that is 

very close to what was enacted last year. We are trying to address 

the issue in a variety of different ways. 

I am not suggesting that I wouldn’t love to have lots of money 

to address these issues but difficult choices need to be made. I will 

point out that we are trying other very creative approaches to also 

51 

supplement the money that is available in SRF so that we can target SRF appropriately. Then we have the WIFIA Center that we 

are beginning to create this year. 

I think the Water Infrastructure Resiliency Finance Center is 

also a very creative approach to try to address this challenge by 

building more public-private partnerships. 

It is not that I don’t think we could always spend more money 

and spend it effectively. I am suggesting that public sector dollars 

will not cover the need that is out there. We need to find very creative approaches and also attract private sector dollars into this 

venture because it matters to all of us. 

Senator CARDIN. I agree with that. I agree that we are going to 

have to supplement the infrastructure financing by creative methods, whether it is WIFIA, tax credits or public-private partnerships. 

My Mayor, Stephanie Rawlings-Blake, suggested a separate trust 

fund for water infrastructure. We are going to have to do something for more. 

You need a basic program that at least is there to provide the 

fundamental commitment by the Federal Government. The same 

thing is true, by the way, with highway transportation. We want 

our 6 year reauthorization but we also recognize we may have to 

supplement that with more infrastructure in creative ways. 

Maybe my math is different than yours. We can do this later and 

get me the information. My staff tells me this is a 22 percent cut 

in the Clean Water State Revolving Fund, amounting to a transfer 

of $332 million. 

Ms. MCCARTHY. I am sorry, I misunderstood. I thought you 

meant the entire fund. The Clean Water SRF is lower because we 

have shifted a lot of the additional resources to drinking water. As 

a whole, it is $2.302 billion we are proposing. 

Senator CARDIN. The State Revolving Fund that deals with our 

wastewater treatment facilities are cut by 22 percent? 

Ms. MCCARTHY. That is because the shift is going to drinking 

water for the first time in quite a while because the need on drinking water is even more severe than the need for wastewater at this 

point. I can show you, and certainly will provide your staff with the 

figures. 

Senator CARDIN. We need modern drinking water for capacity 

but if we don’t deal with wastewater treatment, we are going to 

have problems with clean water in our streams. I can assure you 

of that. It is a major source of pollution for our water bodies. 

Ms. MCCARTHY. I totally agree with you. We would be able to 

utilize money effectively. This is, I think, a reasonable approach to 

start recognizing that at this point, drinking water has not been 

appropriately funded and that we need to make some shift in that 

fund. We are certainly able and willing to talk to folks about why 

we believe that is the case. 

Senator CARDIN. We are half right and half wrong. Drinking 

water needs more, but you shouldn’t be cutting the State Revolving 

Fund. 

Senator INHOFE. Thank you. 

Senator Wicker. 

Senator WICKER. Thank you very much. 

52 

First of all, I would like to ask unanimous consent to enter into 

the record, an article, an op-ed, from the Wall Street Journal of 

September 19, 2014 by Steven E. Koonin, entitled Climate Science 

Is Not Settled. 

Senator INHOFE. Without objection. 

[The referenced information follows:] 

53 


94980.007
54 


94980.008
55 


94980.009
56 


94980.010
57 


94980.011
58 

Senator WICKER. I would point out to our witness and also to the 

members of the committee that Steven E. Koonin, interestingly 

enough, was Under Secretary of Science in the Energy Department 

during President Obama’s first term and is currently Director of 

the Center for Urban Science and Progress at New York University. Yet, he authors an essay entitled, Climate Science Is Not Settled. 

I am going to read extensively from it in the time I have. Mr. 

Koonin starts by saying, ‘‘The idea that ‘Climate science is settled’ 

runs through today’s popular and policy discussions. Unfortunately, 

that claim is misguided. ‘‘It has not only distorted our public and 

policy debates on issues related to energy, greenhouse-gas emissions and the environment, but it also has inhibited the scientific 

and policy discussions that we need to have about our climate future. 

He sounds like you, Mr. Chairman. At this point, he says, ‘‘The 

crucial scientific question for policy isn’t whether the climate is 

changing. That is a settled matter. The climate has always changed 

and always will.’’ 

The author also believes humans are influencing the climate, but 

he says, this, ‘‘The impact of human activity appears to be comparable to the intrinsic natural variability of the climate system 

itself. The crucial unsettled scientific question for policy is how will 

the climate change over the next century under both natural and 

human influences. Answers to that question at the global and regional levels as well as to the equally complex questions of how 

ecosystems and human activities will be affected should inform our 

choices about energy and infrastructure.’’ 

There is one other sentence that I will quote at this point. ‘‘Even 

though human influences could have serious consequences for the 

climate, they are physically small in relation to the climate system 

as a whole.’’ I think that is a very interesting and balanced opinion 

piece raising doubts about the question of whether this is settled 

science. 

I also would simply respond to what the Ranking Member said 

about deteriorating sea ice. I would point out to my colleagues that 

as a matter of fact, according to NOAA, indeed arctic ice in January of this year was 6.3 percent below the 20 year average from 

1981–2010. 

However, at the same moment, Antarctic sea ice is the largest on 

record, 44.6 percent above the 1981 to 2010 average. Deteriorating 

sea ice may be happening to 6.3 percent extent in the Arctic but 

it seems to be increasing by 44.6 percent in the Antarctic. 

Director McCarthy, I noticed and would call to your attention 

that Congressman Whitfield in the House submitted questions on 

June 19, 2014 to EPA concerning the carbon dioxide regulation for 

power plants. He received a letter finally on February 11, 2015. I 

just wondered, Administrator McCarthy, if since that time you 

have a better answer to those questions. The questions concern 

power plants. Has EPA estimated the impact of this proposed CO2

rule for existing power plants in terms of global mean temperature? 

The answer includes this sentence, ‘‘Although EPA has not explicitly modeled the temperature impacts of this rule, the clean 

59 

power plant has an important and significant contribution to emission reductions.’’ In other words, EPA cannot tell Congressman 

Whitfield, in answer to his question, to what extent is the temperature going to be impacted by this clean power rule. 

Further, he asked, ‘‘Has EPA estimated the impact of the proposed CO2 rule for existing power plants in terms of global mean 

sea level rise?’’ Again, the EPA was unable to answer his question: 

‘‘The EPA has not explicitly modeled the sea level rise impacts of 

this rule.’’ 

I will tell you what is going to happen because of this rule to my 

State of Mississippi. It is going to be devastating to the economy. 

The Mississippi Energy Institute says, ‘‘The estimated cost to Mississippi ratepayers is $14 billion by 2030, not including fuel costs. 

Mississippi is projected under this power plan to experience the 

largest increase in electricity production costs of any State, a 177 

percent increase.’’ 

I would say to my colleagues, and I would say to you, Administrator McCarthy, we know the negative effects on the hardworking 

people of my State in terms of how much money they are going to 

have to pay, but your agency is unable to say in a 6-month time 

in answer to a question submitted by the chairman of the subcommittee what impact, if any, it will have on global temperature 

and was unable to say what impact, if any the rule would have on 

sea level rise. 

It seems to me the answer is, well, it is bound to help. We know 

it is going to increase electricity rates by 177 percent, cost jobs and 

make it harder for the people in my State, but we just think it is 

bound to help in some way although we cannot quantify that. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Mr. Wicker. 

Senator Boxer. 

Senator BOXER. Thank you so much, Mr. Chairman. 

I am going to ask unanimous consent to place into the record the 

series of votes that the Senate has taken regarding climate change. 

Is that OK with you? 

Senator INHOFE. Without objection. 

[The referenced information follows:] 

60 


94980.023
61 

Senator INHOFE. I have the same list, I believe. If yours is different, then I would ask unanimous consent that next to yours, 

that is granted, I will have mine. Without objection, so ordered. 

[The referenced information follows:] 

62 


94980.073
63 

Senator BOXER. May I ask that I get back the 10 seconds that 

my friend stole from me? 

Senator INHOFE. You have it. 

Senator BOXER. Here is the deal. We started voting on climate 

change issues in 2003. We got our clocks cleaned in 2003 and 2005, 

absolutely true. In 2008, we had, absent Senators Collins, Martinez, Smith, Snowe, McCain and Coleman, by letter saying they 

were with us, that would have been 56 to 36 in favor of a cap and 

trade plan know as the Climate Security Act, Lieberman-Warner. 

We had 4 short of 60. We had a majority. 

Then we had a Murkowski joint resolution to disapprove the ruling on the endangerment finding. That failed, 47 to 53. 

Then on April 6, 2011, we had a 50 to 50 vote on the McConnell 

amendment to prohibit the Administrator of the Environmental 

Protection Agency from promulgating any regulation concerning climate. That failed. 

Then we had an astounding vote. I voted with my chairman, 98 

to 1, climate change is not a hoax, yes. That was really a huge admission. 

Today, we hear from my friend, Ted Wicker. I take this out of 

context. I think what I heard you say was that there are scientists 

now that you respect saying that human activity does have an impact. You said it is offset by other things, but this is the first time 

I have ever heard you say that. In my mind, I think we are gaining 

ground, not fast enough for our grandkids, but we are gaining 

ground. 

On the sea ice, I wanted to talk to my friend because I saw an 

amazing presentation by NOAA on what is happening to the ice. 

You are right about Antarctic versus Arctic, but there is just more 

ice, it is just that it is thinner. We will talk about that because I 

think that is a very important point you are making on the ice. 

Back to you, Administrator McCarthy. The EPA’s budget supports implementation of the President’s Climate Action Plan by allocating funding for efforts to establish limits under the Clean Air 

Act on carbon pollution from cars, trucks and power plants. 

All these actions consistent with the three Supreme Court decisions in Massachusetts v. EPA of 2007, American Electric Power v. 

Connecticut in 2011, and Utility Air Resources Group v. EPA of 

2014, are your actions consistent with the Supreme Court decisions 

or is your rogue agency making up this stuff as you go along? 

Ms. MCCARTHY. They are consistent with the decisions and laws 

that this body has passed. 

Senator BOXER. Isn’t it true that if you were not to move forward, you could be subjected to lawsuits by are families who are 

concerned about these issues? 

Ms. MCCARTHY. I am quite sure. 

Senator BOXER. EPA’s Revolving Loan Program for drinking and 

wastewater infrastructure help to ensure the water we drink is 

safe and that our lakes and rivers are clean. This is a place where 

I think there is bipartisan concern about the budget. 

We see a net cut of $53 million. Can you explain how EPA will 

ensure adequate investments in clean and drinking water given 

these cuts? 

64 

Ms. MCCARTHY. EPA believes that the total $2.302 billion investment in SRF which includes drinking water and clean water is a 

significant step forward. We certainly understand there may be interests in additional funding. 

The absolute need of the drinking water supply that we have identified so far is $348 billion. On the clean water side, it is $298 

billion in needed investment. We understand that these are issues 

that will take yearly significant investments. 

The challenge we have is with our limited budget, we have a 

number of core functions in which we need to provide resources in 

order to protect public health and the environment. 

Senator BOXER. You are saying you increased funding on one 

part of the clean water mission and you cut it on the other. Is that 

accurate? 

Ms. MCCARTHY. We actually shifted funds away from the wastewater side and shifted it into the drinking water because there is 

some immediate need that we have identified, not that there isn’t 

an immediate need in both categories. 

Senator BOXER. My takeaway from this, I am not asking a question, it gets back to the 20 percent cut in EPA’s budget that we 

have see over time is having an impact internally. In administering 

landmark laws like the Clean Water Act, it is important that Federal agencies follow the best available science. 

Ms. MCCARTHY. Yes. 

Senator BOXER. Can you expand on the science used to develop 

the clean water rule and how the rule reflects the best available 

science? 

Ms. MCCARTHY. Thank you for raising this, Ranking Member. 

The clean water rule is a rule the Supreme Court actually told 

us almost 6 years ago that we should do some more science around 

this so we could be clear about the waters that needed to be protected that were absolutely significant for drinking water and other 

functions we are relying on. 

They told us to go back and look, which we did. We actually did 

a compilation of more than 1,000 studies that had been done and 

peer-reviewed. We worked with our Science Advisory Board so that 

could look at that compilation, look at the assessment and do a 

peer review. 

We have done the science. We need to be able to reflect better 

in our rules what waters are necessary to protect under clean 

water. That is going to clarify issues that the States and this body, 

many of you, have been asking us to clarify for years. We are using 

sound, peer-reviewed science to do our job moving forward. 

Senator INHOFE. Thank you, Senator Boxer. 

Let me take the chairman’s prerogative and ask if you want to 

respond to the last question Senator Wicker asked during his line 

of questioning? 

Ms. MCCARTHY. There were many, sir. I understand that there 

are a vast minority of scientists who believe that the challenge of 

climate change isn’t as significant as the majority. 

Senator WICKER. Referring to the very last question with regard 

to what benefits are we going to receive from the clean power plant 

with regard to temperature and sea level which is what I thought 

was the whole point. 

65 

Ms. MCCARTHY. This issue was actually fairly well discussed by 

the Supreme Court. When they were looking at this issue, this is 

work and advice we followed, the Supreme Court said it was very 

clear that carbon pollution is a danger to public health and welfare 

and that efforts need to be underway to make progress. 

The benefits that we are looking at are the benefits of strong domestic action that will, in and of itself, send a clear signal that we 

are doing what we can cost effectively and flexibly to make 

progress on carbon pollution. 

It has already changed the international dynamic because climate change cannot be addressed without significant effective 

international efforts but we are going to do our part. That is the 

benefit of this rule. 

To ask me whether a marathon can be accomplished without 

crossing the first mile, I would say you can’t do it. While this won’t 

get us to a cleaner, to address fully the issue of climate change, it 

gets us out of the gate, it gets us running and it provides the impetus and energy that we need to prove the actions we need to address climate change are both economically sound and are going to 

be providing us great national security and we are going to be able 

to move this ball forward internationally which is the forum for finally addressing climate change in the most comprehensive and cohesive way. 

Senator WICKER. Twenty seconds, Mr. Chairman. 

Senator INHOFE. Yes, out of my time. 

Senator WICKER. I would simply observe the Supreme Court has 

a legalistic view of this but we have policy decisions to make as legislators and representatives of the taxpayers. It might be when all 

this is said and done we have the whole international community 

agreeing on what we should do, that this is going to prevent sea 

level from rising a quarter of an inch. 

I might decide that is not worth a 177 percent increase in electric 

rates for my citizens in my State. It might be that they would conclude it is going to help by one degree globally. I might conclude 

that is just not worth the loss of jobs for Americans. 

Senator INHOFE. My time is down to 1 minute now. 

Senator Sullivan? 

Senator SULLIVAN. Thank you, Mr. Chairman. 

Administrator McCarthy, it is good to see you again. 

Ms. MCCARTHY. You too. 

Senator SULLIVAN. I always think it is important to get on the 

record at these hearings how important clean water is and clean 

air. As I have mentioned before, in Alaska, we have the most pristine environment in the world. Alaskans are really great about taking care of it. 

As a matter of fact, I think we care about our environment a lot 

more than a lot of people in this town. We have a tremendously 

good record of taking care of that environment. 

I think one of the things they are most concerned about is two 

interrelated themes that most Alaskans, I would say the vast majority, is concerned about. Your agency is not accountable. It is not 

accountable to the law. Most importantly, it is not accountable to 

the people where you are not listening to the people or the States. 

I will get into that in a minute. 

66 

Then you rush to get out rules which is of concern. Where we 

think you are trying to put out an agenda that is not based in the 

law to quickly get that agenda established before you leave office. 

On accountability, I think there is a whole host of issues we can 

talk about but from my perspective, this is a really big issue for 

me. Accountability starts at the top. Last year, there was a glowing 

Wall Street Journal profile on you but some of us found it rather 

disturbing. 

You were up in Alaska, honored by the Alaska Native people 

with gifts, which is a big deal in my State. You were quoted in the 

article about one of the gifts, which was a pen, that you threw the 

f—ing thing away, was your quote. A young girl gave you a jar of 

moose meat from Native people that you said, ‘‘could gag a maggot.’’ 

A lot of people saw that as a glowing article. Most people in Alaska saw it as an incredible disrespect to the people of my State. To 

me when the leader of an agency comes to a State and makes those 

kinds of statements to a national newspaper, it doesn’t show that 

you are focused on serving the people you are required to serve. 

Have you had the opportunity to make a comment on that, to 

apologize? If you would like to apologize here publicly, that would 

be fine. 

Ms. MCCARTHY. I am happy to apologize for those remarks. I will 

tell you they were taken out of context but it doesn’t matter because they hurt individual tribes I care about. 

Senator SULLIVAN. They sure did. Thank you for apologizing. 

Ms. MCCARTHY. No problem. 

Senator SULLIVAN. The clean water rule, the ‘‘waters of the U.S.’’ 

rule, is one of these issues that when you talk about no support, 

either in the law or the people, I think it is something that is happening right now. 

My view is this is executive amnesty for water. Let me give you 

a reason why. In 2009, the EPA proposed expanding the clean 

water jurisdiction, is that true, through the Congress? 

Ms. MCCARTHY. Yes. 

Senator SULLIVAN. You did. It went nowhere in the Congress in 

terms of the bills that were submitted in 2009 to expand the clean 

water jurisdiction. 

Ms. MCCARTHY. We never proposed such bills, sir. 

Senator SULLIVAN. For the record, we can get the bills that were 

proposed, a letter from your predecessor on expanding the jurisdiction of the Clean Water Act. 

When that happens and the Congress doesn’t move on that, the 

Administration is not allowed to simply say, we are going to do it 

with a rule. That rule will expand the jurisdiction of the EPA in 

Alaska over our waters by approximately 40 percent, in a State 

that already has 60 percent of all waters in the United States in 

Alaska covered by the Clean Water Act. 

In this last hearing, I asked for your legal opinion on where you 

got the legal authority. We still have not received that. Can you get 

that opinion to us? 

Ms. MCCARTHY. Senator, I have been very clear. I have no authority to expand the jurisdiction of the Clean Water Act, nor am 

I proposing through a rulemaking to do that. 

67 

Senator SULLIVAN. There are a lot of people who disagree with 

that. We would like to see your legal opinion that gives you the authority to propose this rule. 

Ms. MCCARTHY. I have no legal opinion to support that position. 

I am not doing that. 

Senator SULLIVAN. Don’t you do legal analysis of the rules you 

propose? 

Ms. MCCARTHY. We do legal analysis of our rules. We do not expand through our rulemaking the jurisdiction under the rule. I implement. 

Senator SULLIVAN. That is the big issue right now. You said you 

didn’t do that in your clean air issue and, a lot of States sued. The 

recent Supreme Court came out and said you did exactly that, you 

violated the Constitution. 

There are not a lot of people who believe what you are saying 

in terms of the authority. You have not done a legal analysis on 

‘‘the waters of the U.S.’’ and whether you have the legal authority? 

You have no legal analysis on this? 

Ms. MCCARTHY. We have certainly done a legal analysis in the 

proposed rule and we will explain it in the final as well after looking at comments, but I have never claimed that the agency can expand the jurisdiction of the law. 

Senator SULLIVAN. You cannot. That is why we need a legal opinion that says you are not doing that when many people think you 

are doing that. You have no legal analysis on ‘‘the waters of the 

U.S.’’ right now? 

Ms. MCCARTHY. No. We clearly are looking at staying within the 

boundaries of the Clean Water Act legally and using science to implement it appropriately as the Supreme Court told us we should 

do. That is what this rule is all about. 

Senator SULLIVAN. Mr. Chairman, if I may, I think in the last 

hearing, I asked for the legal analysis that you said your agency 

undertook that says that ‘‘the waters of the U.S.,’’ the regulation 

you have, is a legitimate agency function because it is based in 

statute. 

You said you were going to provide that. We have not seen that. 

Ms. MCCARTHY. I am happy to provide you the actual clean 

water rule that we proposed. It does include a legal analysis of 

what we are supposed to do, what we were told by the Supreme 

Court, the boundaries of the law, and explain why we are well 

within those boundaries in following that advice. 

Senator INHOFE. Thank you, Senator Sullivan. 

Senator Whitehouse? 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Welcome, Administrator. How are you? 

Ms. MCCARTHY. I am well, Senator. How are you? 

Senator WHITEHOUSE. I am well, thank you. 

Could you comment for a bit on EPA’s track record in terms of 

the cost of regulation? We come at this question with things like 

the U.S. Chamber of Commerce’s statement that proposed existing 

power plant regulation will cost the economy 224,000 jobs and $289 

billion in high electric costs through 2030. That got replayed by colleagues of mine pretty extensively. 

68 

Upon examination, it earned a PolitiFact false and it earned four 

Pinocchios from the Washington Post Fact Checker. We have had 

your predecessors, both Republican and Democrat, here describing 

over and over as environmental rules have come up, how there has 

developed a more or less standardized industry response which is 

to exaggerate the costs, deny the benefits and try to cast doubt 

about the problem. 

What is your view? Let us start with the Clean Air Act. How has 

EPA’s enforcement of the Clean Air Act worked to the benefit or 

peril of the American people? 

Ms. MCCARTHY. Overall, the Clean Air Act has resulted in 70 

percent reduced air pollution, while the GDP has tripled. We have 

looked at all of our major rules and followed all of the economic 

procedures we are supposed to follow, the best science that we can. 

Time and time again, we actually over project the costs, so our 

rules are even more cost effective than we have projected. That is 

not a surprise to people who see how we follow the rules and our 

transparency. Time and time again, we know we hear the same arguments over and over again every time we propose a rule. 

Every single time, I have never seen those lack of benefits come 

through or those excess costs be realized. This Congress has given 

us requirements to continue to look at cost benefit but also to do 

a 20-year study of the Clean Air Act and how those benefits have 

been realized. The benefits have far exceeded even the individual 

benefits we estimated for each of those individual rules. 

It is a tremendous opportunity to improve public health and protect the environment. We are going to continue to implement it effectively and cost effectively. 

Senator WHITEHOUSE. Over and over again, the American people 

have been economic winners as well as public health winners because of EPA regulations? 

Ms. MCCARTHY. We have shown that we identify for people what 

the public health goals have to be to keep themselves and their 

families safe. It sparks innovation, it grows jobs, it helps us maintain a robust economy and it keeps our lifestyle that we are so used 

to in this Country available to everyone. 

It is part and parcel of how we have grown the economy in this 

Country. I am sure hoping that continues. 

Senator WHITEHOUSE. The question of carbon pollution continues 

to be debated. As you said, the debate is getting increasingly onesided as an amazing majority of scientists and every single major 

scientific organization in the Country comes down on the side of 

the importance of coping with carbon pollution. 

In addition to your obligation to follow the best available science, 

which you do in this, you also have an obligation to follow the law. 

The Supreme Court has spoken quite clearly to the question of carbon pollution, has it not? 

Ms. MCCARTHY. Quite a few times, yes. 

Senator WHITEHOUSE. Using those words, defining carbon emissions as a pollutant, correct? 

Ms. MCCARTHY. They have also indicated that EPA’s science, I 

cannot quote it directly but the word outstanding comes to my 

mind. They vilified that we have done everything we could on the 

science side and we have proven our case. 

69 

Senator WHITEHOUSE. I think it is important to note the history 

we began with because it casts a spotlight on whether or not we 

really have a legitimate discrepancy in scientific opinion or whether this is simply the rollout of a repeat performance that has happened over and over again whenever an industry has faced a new 

regulation to protect the public health in which they create artificial doubt with a stable of basically kept scientists. 

I think it is important that we bear that in mind and that the 

public keep an eye on that as well. Would you agree there is a difference between a legitimate, scientific debate and this campaign 

of doubt casting that has pre-existed the fight over carbon? It goes 

all the way back to whether tobacco was safe or not. The tobacco 

industry was the great proponent and inventor of this theory, was 

it not? 

Ms. MCCARTHY. Yes, and I am certainly aware that the wealth 

of science we have that shows that climate change is real, it is happening, and it is a threat. Humans are causing the majority of that 

threat. It is supported by the majority of scientists and frankly, the 

public in the U.S. at this point as well. They are concerned. The 

impacts are already being felt. 

Climate change is not a religion or a belief system. It is a science 

fact and challenges us to move forward with the actions we need 

to do to protect future generations. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Whitehouse. 

Next we will hear from Senator Sessions but first, I do have my 

last remaining minute of which I am going to give 45 seconds to 

Senator Sullivan. Let me just quote one of the imminent scientists 

of the many, many scientists who believe this, Richard Lindzen, 

from MIT who made the statement that ‘‘controlling carbon is a bureaucrat’s dream. If you control carbon, you control life.’’ Many, 

many scientists out there agree with that. 

Senator, if you finish your line of thinking there, you may have 

45 seconds. 

Senator SULLIVAN. Thank you, Mr. Chairman. 

I just want to wrap up the discussion on the issue of the legality 

of your actions. There are a lot of people in Alaska, and I think 

throughout the Country, who are doubting the legal basis for which 

your agency is acting. 

Mr. Chairman, for the record, I would like to submit a Wall 

Street Journal editorial called, A Constitutional Tutorial for 

Obama, the President and EPA do not possess an heralded power 

to rewrite laws, and more recently, a Wall Street Journal op-ed 

from Harvard professor, Laurence Tribe, The Clean Power Act is 

Unconstitutional, where Laurence Tribe says, ‘‘Frustration with 

congressional inaction cannot justify throwing the Constitution 

overboard to rescue this lawless EPA proposal.’’ 

[The referenced information follows:] 

70 


94980.091
71 


94980.092
72 


94980.093
73 

Senator SULLIVAN. I would like to wrap up with one final question. What is the rush on ‘‘the waters of the U.S.’’ regulation? You 

are expediting it. Isn’t it true that OMB allowed you to expedite 

this because they said it wasn’t a major rule? You are expediting 

this rule when 35 States have said they oppose it and over 1 million comments have not been placed online on this rule. It seems 

to me that you are rushing this. 

Again, we would like to see the legal basis for you moving outside the normal procedures for the timeline of a rule that is going 

to impact dramatic parts of the Country and huge parts of my 

State. 

Ms. MCCARTHY. Very quickly, first of all, the reason we are moving forward with this rule is we are in no rush. In fact, the questions began in 2001. We are moving it forward. We actually have 

been requested by States, by industries, by farming and ranching 

groups to move forward with the rulemaking to provide clarity. We 

are moving for our constituencies, the people who are confused and 

need answers. 

We have not had 35 States tell us. There have been individuals 

representing various constituencies in States or different offices in 

States who have commented, but we have received over 1 million 

comments and 87.1 percent of those comments we have counted so 

far—we are only missing 4,000—are supportive of this rule. Let me 

repeat, 87.1 percent of those one plus million are supportive of this 

rule. 

Senator INHOFE. Thank you. 

Senator Sessions? 

Senator SESSIONS. Thank you, Mr. Chairman. 

As a member of the Budget Committee and somewhat familiar 

with the Budget Control Act which contained the growth of spending, I think EPA this year should be flat spending or at least no 

more than 2.5 percent increase. You are proposing a 6 percent increase. Where does the money come from? Are you proposing to 

break the limitations? 

Ms. MCCARTHY. It is part of the President’s proposal which is not 

going to buy into the bad policy of sequestration, but he has designed a budget that can accommodate this. 

Senator SESSIONS. The inflation rate in the United States is 

about 2 percent, so you want to have a three times the inflation 

rate increase in spending. I would suggest that when we go to our 

States, the group we have most complaints about from our constituency, highway people, whether it is our farmers, our energy 

people, is the Environmental Protection Agency. It is an extraordinary overreach. 

You apparently are unaware of the pushback that is occurring in 

the real world. I just want to tell you I am not inclined to increase 

your funding 6 percent a buck. Now you say we have a crisis and 

there are dangers out there. 

In an article by Mr. Lumbergh, who testified before the Budget 

Committee from the Copenhagen Institute, along with Dr. Pioki 

from Colorado, ‘‘We have had fewer droughts in recent years.’’ Do 

you dispute that? 

74 

Ms. MCCARTHY. I don’t know in what context he is making statements like that, but I certainly can tell you about the droughts that 

are happening today. 

Senator SESSIONS. No, no, I am not arguing to you today that 

you are wrong about global warming because we have a cold spell. 

I am asking you what are the worldwide data about whether or not 

we are having fewer or less droughts. 

Ms. MCCARTHY. I will be happy to provide it, but I certainly am 

aware that droughts are becoming more extreme and frequent. 

Senator SESSIONS. You are aware that the IPCC has found that 

moisture content of the soil is, if anything, slightly greater than it 

has been over the last decade in their report. Are you aware of 

that? 

Ms. MCCARTHY. I don’t know what you are referring to, Senator, 

but I am happy to respond. 

Senator SESSIONS. You need to know because you are asking this 

economy to sustain tremendous costs and you don’t know whether 

or not the soil worldwide is more or less moist? 

Ms. MCCARTHY. I don’t know where your cost figures are coming 

from. 

Senator SESSIONS. I am quoting the IPCC. What about hurricanes? We had more or less hurricanes in the last decade? 

Ms. MCCARTHY. There have been more frequent hurricanes and 

more intense. In terms of landing, those hurricanes on land, I cannot answer that question. It is a very complicated issue. 

Senator SESSIONS. It is not complicated on how many landed. We 

have had dramatic reduction in the number. We have gone a decade without a Class III or above hurricane. 

Ms. MCCARTHY. The scientists are not really considering that 

number to be significant because the subset is so small that you 

are looking at, you are taking issues in science out of context. 

Senator SESSIONS. Are you asserting that you have evidence that 

we have greater hurricanes around the world in the last decade 

than the previous decade? 

Ms. MCCARTHY. I am asserting that I have plenty of evidence, 

factual evidence from scientists who know this issue that climate 

change is happening, it is real, and it is happening now. 

Senator SESSIONS. Of course the climate is changing, Ms. McCarthy. You have been saying we have more storms. Will you submit 

within a few days, it shouldn’t take long, a showing that we have 

had more storms in the last decade? 

Ms. MCCARTHY. When you say ‘‘we,’’ what are we talking about, 

the U.S.? 

Senator SESSIONS. The world. 

Ms. MCCARTHY. I am happy to submit the full breadth of science 

that we have behind climate. We have submitted it and will submitted it again. 

Senator SESSIONS. Would you acknowledge that over the last 18 

years, the increase in temperature has been very little and that it 

is well below, 90 percent below most of the environmental models 

that show how fast temperature would increase? 

Ms. MCCARTHY. No, I would not agree with that. A 1-degree temperature is significant. 

75 

Senator SESSIONS. I am asking below the models or above the 

models? 

Ms. MCCARTHY. I do not know what the models are actually predicting that you are referring to. There are many models and sometimes it is actually going faster and sometimes slightly slower than 

the model predicts, but on the whole, it makes no difference to the 

validity and the robustness of climate science that is telling us that 

we are facing an absolute challenge that we must address both environmentally and economically from a national security perspective, and for EPA, from a public health perspective. 

Senator SESSIONS. Carbon pollution, CO2, is really not a pollutant. It is a plant food and it does not harm anybody except that 

it might include temperature increases. 

Let me ask you one more time, just give me this answer. If you 

take the average for the models predicting how fast the temperature would increase or is the temperature in fact increasing less 

than that or more than that? 

Ms. MCCARTHY. I cannot answer that question specifically. 

Senator SESSIONS. Mr. Chairman, I would say this is a stunning 

development, that the head of the Environment Protection Agency, 

who should know more than anybody else in the world, who is imposing hundreds of billions of dollars in costs to prevent climate 

and temperature increases, doesn’t know whether their projections 

have been all along. 

Ms. MCCARTHY. Whose projections? What models, sir? 

Senator SESSIONS. Where do you get the information that the 

temperature is increasing? Isn’t it from climate models produced by 

scientists around the world that projected certain increases as the 

actual temperature increased at that rate? 

Ms. MCCARTHY. It depends on what you are looking at. In the 

timeframe of climate, which is trends, absolutely, positively. 

Senator SESSIONS. Would you submit to me a written document 

that explains how you believe the models have been proven correct 

and whether or not, I will ask this specific question, had it increased less than projected or more than projected? 

Ms. MCCARTHY. I would be happy to provide you the information. 

My concern is you are not looking at climate in the kind of trend 

lines that climate determines. Sometimes you were asking us did 

we get it right last year, did we get it right the prior 4 years, instead of looking at this as climate demands. This isn’t weather patterns. This is a partitive time. If you look at the last century, we 

have had changes in our climate that we should not have seen over 

a span of 1,000 years. 

Senator INHOFE. I am sure that Senator Sessions is looking forward to getting your written document. 

We wanted to hear from Senator Markey but we have a unanimous consent request by Senator Vitter. 

Senator VITTER. Actually, Mr. Chairman, I will pass and try to 

stay around. Thank you. 

Senator INHOFE. Senator Markey. 

Senator MARKEY. Thank you. 

Senator Sessions, they have a big stunning development in Massachusetts. It is that temperatures off the coast of Massachusetts 

and the Atlantic have been measured at 20 degrees above normal. 

76 

What is happening is this Arctic vortex is being sent down in 

larger amounts than ever seen before as Anchorage has almost no 

snow on its grounds, leads to this cold air lingering longer over 

Massachusetts and then hitting this 20 degree warmer than normal Atlantic Ocean which then leads to more moisture and more 

precipitation which then leads to us breaking the record for the 

most snow in history. 

That is not weather; that is climate. There is a distinction between these things. The reason we know things are changing off 

the coast of Massachusetts is NOAA, NASA and predecessor agencies have been using thermometers since the 1880’s to actually 

take the temperature of the water and the air. They just write it 

down each year. 

They do that all around the world, actually. Scientists all around 

the world keep these temperatures. 

The reason we know it is happening is that people have been 

using thermometers over all these years. It is not a more sophisticated technology, it is exactly the same technology, probably costs 

more but it is the same exact device. 

We are now suffering from that in Massachusetts. It is climate. 

There is an intensity, an extra level of effect that it creates. 

I would like to point out that in the op-ed of Steven Koonin, that 

Senator Wicker put in the record, there was one sentence he left 

out. That sentence says, ‘‘Uncertainty need not be an excuse for inaction.’’ I applaud the EPA for all of its great work. I thank you, 

Madam Administrator, for what you have done on this issue. 

I would like to move the renewable energy component of your 

clean power plant rules and ask, as you finalize these rules, will 

you be incorporating up to date renewable costs so what is truly 

achievable is reflected? 

Ms. MCCARTHY. Yes, sir, we will. 

Senator MARKEY. The renewable fuels standard is another policy 

where technology and innovation can help reduce carbon pollution. 

Last year, facilities with almost 60 million gallons of cellulosic ethanol fuel per year capacity on line. Another 30 million gallons per 

year of facility was set up this year. 

To continue that growth and investment, the advanced biofuels 

industry needs policy certainty. Will the upcoming renewable fuels 

standard proposal reflect developments in cellulosic and advanced 

biofuels and support their growth in the future as was the intent 

of the 2007 legislative language? 

Ms. MCCARTHY. Yes, sir. 

Senator MARKEY. Can you elaborate a little? 

Ms. MCCARTHY. I think the challenge for us has been the requirement to annually look at these budgets. We are looking at 

ways in which we can send longer term signals to the market so 

that advancements like cellulosic can really find investment opportunity on a longer term basis that they need to continue to grow. 

Senator MARKEY. I was the co-author of that language in 2007. 

Then it was cellulosic but then we went almost immediately into 

a recession which hurt that industry. 

Ms. MCCARTHY. It has really taken off. 

Senator MARKEY. It did not get its initial shot but in normal economic conditions, we are quite confident it will be successful. 

77 

I want to turn to EPA’s work to keep our water clean. Between 

1979 and 2001, about 15 football fields were the wetlands that feed 

into the historic Buzzards Bay in Massachusetts were cleaned of all 

vegetation and pollutants with high levels of fertilizer and pesticides that contaminated the waters that feed into the Bay. It was 

all done without notification or permitting. 

The EPA tried to take action against the polluters using its 

Clean Water Act authority but more than 15 years later, the case 

is still not resolved and the wetlands have never been restored. 

The reason this case remains in limbo is that the Supreme Court 

was unable to make up its mind about whether wetlands are bodies 

of water that fall under the Clean Water Act’s jurisdiction. 

Rather than perpetuate the uncertainty that the Supreme Court 

created, EPA responded to requests from religious organizations, 

small businesses, public health groups, sportsmen’s associations 

and State leaders to craft a definition of which types of water bodies can be subject to enforcement under the Clean Water Act and 

which cannot. 

Isn’t it true that the EPA, as it reviews more than 1,200 peerreviewed, scientific papers and other data, established a Scientific 

Advisory Board of 26 independent scientists to review the EPA’s 

work, reached out to stakeholders in every single State and reviewed more than 1 million comments on the proposed rule? 

Ms. MCCARTHY. That is true. 

Senator MARKEY. Isn’t it true that more than 30 Republican Senators and House members publicly called on EPA to write a rule 

instead of just issuing guidance like EPA initially planned to do? 

Ms. MCCARTHY. That is true. 

Senator MARKEY. Isn’t it true that when this rule is finalized, it 

will actually cover fewer water bodies than was the case under 

policies that were promulgated by the Reagan administration and 

it will permanently remove types of bodies of water from being subject to EPA’s authority under the Clean Water Act? 

Ms. MCCARTHY. That is correct. 

Senator MARKEY. It seems that common-sense, scientifically 

based policy is being put on the books and we thank you so much 

for doing that. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Markey. 

Senator Capito? 

Senator CAPITO. Thank you. 

Thank you, Madam Administrator. I appreciate your coming before the committee today. 

I want to say at the onset, I think, in a bipartisan way, we have 

asked questions about the technical assistance issues through the 

Safe Drinking Water and the Clean Water Acts. 

It does maximize resources to a lot of localities, municipalities 

and it is very important to all of us no matter how big or small 

your State is. 

You know I am from the State of West Virginia. We have had 

numerous conversations. As one of my colleagues said, I would say 

in the State of West Virginia, if I hear disagreements, which I hear 

quite a few, but EPA is always right at the epicenter because of 

78 

the impact of the regulatory environment we have had because we 

are so heavily reliant on coal as our power source. 

I would like to ask this question. You have in your remarks that the President’s budget calls for a $4 billion Clean Power State Incentive Fund. The way I am reading this, that is a legislative prerogative, correct? That exists outside your budget? 

Ms. MCCARTHY. That is not included in our budget. 

Senator CAPITO. That has to be passed here in Congress before 

that would ever be funded? 

Ms. MCCARTHY. That is correct. 

Senator CAPITO. I am not going to waste a lot of time on that 

one because I don’t think that is going to go. Although I will say, 

at cross purposes there, in your remarks, you say it helps with the 

financing for renewable and low income communities, but in the 

analysis by the committee, the bipartisan analysis, the quote says 

this would be to give grants to States that go beyond the clean 

power plan? 

Ms. MCCARTHY. We actually have other opportunities in our 

budget that speak to the issues I was referring to. 

Senator CAPITO. I would say if we are going to talk about eco- nomics and environment, if $4 billion, about 50 percent of what you 

are asking for today, the EPA and the President believe that is 

something that will help meet the demands of this new clean power 

plan. That tells me how explosively expensive something like this 

would be across the Country. Would that be a safe statement? 

Ms. MCCARTHY. I don’t believe so, Senator. I think it is appropriate to look at the proposal that EPA put on the table because 

we believe it was flexible in terms of individual States and where 

they are overall in terms of our ability to continue to keep a reliable and cost effective energy system. 

We think the goals are achievable for individual States. The 

standards were set and the overall rule will be very cost effective. 

Senator CAPITO. If the Administration wants an additional $4 

billion in mandatory spending, in my view—we can move on after 

this. I would like to say my own DEP has said EPA comments ‘‘on 

the 111(d) proposal notes with the finesse of a bull in a china shop, 

EPA intends to assert itself broadly into the new regulatory arenas 

that impact all areas of the Nation’s economy.’’ 

If we are looking at the impacts of the clean power rule and 

weaving a balance, you all have talked about this a lot with me 

and I have a lot of frustrations at home about it. Of those dollars 

you are committing to this, how much of those dollars are actually 

used to model the economics? 

We have heard a lot about the science. What about the economic 

effects, the job loss, communities that basically are going to be 

abandoned in my State because of the poor communities, the rise, 

170 percent and that may be high, of 170 percent for that low income person in West Virginia, that senior and their electric bill 

where they are already at the end of their rope trying to meet their 

monthly obligations? 

How much time, effort and money do you spend to analyze that 

effect when you are putting together one of these regulations? 

Ms. MCCARTHY. I am happy to try to see if we can decipher that 

for you. 

79 

Senator CAPITO. If you could quantify that for me, I would appreciate it. 

Ms. MCCARTHY. I am happy to do that. If you look at the way 

in which we designed our proposal, if you look at what we are asking in terms of additional resources on climate, you will see we are 

asking for $57.7 million, $25 million of which is technical assistance grants going to States so they can help them with their plans. 

In excess of $25 million is to help actually provide technical assistance to be able to work on this issue. 

You will see that we are providing in the core of our budget the 

funding we believe we need to implement the plan and help States 

implement the plan. 

Senator CAPITO. I understand. Additionally, even though it is a legislative priority, the Administration obviously feels an extra $4 

billion in mandatory spending is going to be what is necessary for 

the States to meet these challenges. 

Let me ask about ozone real quick because again I think there 

are big economic impacts there. The rule you said went forward in 

2008, the previous, and now we are moving to a new standard. 

This is ozone? 

Ms. MCCARTHY. Ozone, yes. 

Senator CAPITO. We know there are still many States and counties not in compliance. The President withdrew this in 2011, the 

same proposal, is that correct, to not move forward. The $90 billion 

price tag was something he was really unable to move forward. Do you believe the economy has changed so much that this $90 

billion price tag is now sustainable and whatever would be on top 

of the new ozone regulations? 

Ms. MCCARTHY. The way this works, let me explain. The rule 

being implemented will ask States to look at cost effective opportunities for reducing pollutants that contribute to ozone. We are setting a health protective standard. 

The rule we are looking at or the standard we are setting now 

is actually going to be based on air quality in 2014, 2016, and 

States will get to 2030 to actually in some cases achieve that. National rules already in place will actually get us most of the way 

to complying with that more rigorous standard if and when the decision is made to change that standard. 

This is not a stop and start process. It is a continued discussion 

and cost effective actions to us getting at the levels of protection 

for public health. 

Senator CAPITO. My misunderstanding might be that it was a 

previous rule that was supposed to meet certain standards. I am 

interpreting it as a new rule that is moving you to different standards. You are telling me it is sort of a continued rule. 

Ms. MCCARTHY. It is and has been continuing for 20 years and 

States have been able to manage through this. Everything you do 

to comply with the 2008 will provide you a strong foundation to actually achieve what we are proposing. 

The exciting thing about these standards is if we decide to reduce 

the standard to 70, only nine counties in the U.S. outside of California are predicted to actually be out of attainment by 2025. 

National rules already on the books are going to get us a significant way there. It may actually get us outside of California and 

80 

give us the ability to be in attainment almost throughout the entire 

Country. 

Senator INHOFE. We will recognize Senator Rounds. Senator 

Rounds, would you yield for a unanimous consent request from 

Senator Vitter? 

Senator ROUNDS. I will. 

Senator VITTER. Thank you, Senator. 

Very briefly, I just have a UC request to submit to Ms. McCarthy, for the record, my questions, which are on existing source performance standards and economic analysis. 

Senator INHOFE. Without objection. 

Senator VITTER. Thank you. 

Senator INHOFE. Senator Rounds. 

Senator ROUNDS. Thank you, Mr. Chairman. 

Administrator McCarthy, I suspect this is something like going 

to a dental appointment in terms of coming in here and sitting 

down. 

Earlier, you had an opportunity to discuss a little, and I sensed 

the frustration, with regard to the waters of the United States 

rules and the comments made. I want to correct it because, if not, 

we will come back later on and correct it. 

The Corps of Engineers basically issued the request. On February 11, Assistant Secretary Darcy told the House Appropriations 

Committee members that 37 percent of the comments on the proposed ‘‘waters of the United States’’ rule were in favor of the rule 

and 58 percent were opposed and that others were neutral. 

On February 26, you told the House Appropriations Committee 

members that 87 percent of the comments were positive and said 

‘‘all they,’’ meaning the Corps, ‘‘had completed was a review of 2 

percent of the comments and you weren’t sure which 2 percent they 

chose.’’ You said you feel badly there is confusion. You suggested 

maybe the Corps should review their numbers. Today, you issued 

a similar suggestion. 

I suspect that although there have been over 1 million comments 

made, it seems there has also been discussion and there are only 

about 20,000 of the million that would be considered unique and 

substantive in terms of comments. It also appears in discussions 

that these were the comments the Corps had reviewed. 

I want to clear up any confusion. When you talk about the substantive comments that have been made which appear to be about 

20,000, I don’t know there is much disagreement on that. 

Out of the 20,000, 7,400 were unique and substantive comments 

that supported the rule. When you talked about 87 percent of the 

comments were positive, you were talking about the mass campaigns and the duplicative comments also received in addition to 

the 20,000 substantive and unique comments that had been there. 

Also in that 20,000, there were approximately 11,600 of these 

substantive comments that were in opposition to the rule. Am I accurate in my assessment? 

Ms. MCCARTHY. I don’t have that exact figure, sir. 

Senator ROUNDS. I am trying to clear up that while I think you 

were using numbers different from the Corps of Engineers, the 

Corps was talking about the substantive comments and you were 

81 

looking at the gross number of total comments that have come in 

overall? 

Ms. MCCARTHY. I would have to refer to the Corps for that. I 

don’t know, sir. I think the point I am really trying to make is we 

have probably done a bit of disservice saying what is opposed and 

what isn’t opposed. 

It is important to know that people find this rule important and 

obviously to get it right. We do as well. Every comment is meaningful to us and we look at all of them. It is important for us to do 

what the science and the law say and to explain ourselves. We 

need to do the best job we can in the final to have that done. 

Senator ROUNDS. I do agree with you that this is critical. I think 

this has some far reaching impacts in terms of individuals who before may very well not have to have permitting in order to do the 

same jobs they were doing before. 

I think it is so important that when we start talking about waters of the United States, I think this is a major rule. Although 

there maybe some discussion or disagreement in terms of the definitions of what a major rule is, there is Executive Order 12866 directing all Federal agencies to assess economic effects of economically significant rules. I do think this is one of those rules. 

These rules will have a material adverse effect on any sector of 

the economy such as productivity, competition or jobs. In August 

2014, a GAO study reported your agency was writing and implementing regulations based on information that considered the effects of regulations on employment for the years 1979–1991. This 

was in 2014. 

Additionally, the study was limited to four industrial sectors. As 

a result, the regulations EPA was crafting for the United States 

were finalized with the assumptions that the United States economy 20–30 years ago was the same as it is today and involved only 

four industrial sectors. That is simply not correct today. 

The Bureau of Labor statistics breaks down the manufacturing 

sector into approximately two dozen industries and this does not 

include other sectors such as retail, hospitality or tourism. 

I understand you are no longer using the outdated data when 

writing regulations but you are required under this Executive 

Order to consider economic effects whenever you are writing a 

major rule. 

The EPA is in the process of finalizing the clean power plant 

rules and the NOx ozone rules as well, which is predicted to be one 

of the most expensive regulations in the EPA’s history. 

I am curious. What economic factors and how updated are they 

that you use when you look at any one of these three rules today? 

How up to date are your economic numbers? What guidelines are 

you using today? 

Ms. MCCARTHY. I am happy to provide you information on this 

but EPA, I believe, does a great job in keeping up with the economics we need in order to provide the American public a really good 

understanding of what the costs and benefits are of our rules. 

I think we do an excellent job. There is always work going on 

and we try to update as much as we can, but I think we are up 

to date in what we are doing. I would be happy to share that information with you. 

82 

Senator ROUNDS. Would you provide the committee the current 

data you are using when you did each of these three rules, please? 

Ms. MCCARTHY. Of course. There is something called the Regulatory Impact Analysis that goes with these rules. All of the methods, methodologies and data is contained in that. 

Senator ROUNDS. I hear you say, and we would like to get, since 

you are not using the old data, you have updated the data, the 

most current data that you have to indicate the impact on the economy that all three of these rules would have. 

Ms. MCCARTHY. I will make sure we provide that information to 

you, Senator. 

Senator ROUNDS. Thank you very much. I appreciate it. 

Senator INHOFE. Thank you, Senator Rounds. 

We will leave the record open for 24 hours because there are 

things that both Senator Boxer and I want to submit for the record, 

questions for the record and also clarifications for the record. 

Senator BOXER. Mr. Chairman, can I make an inquiry? 

Senator INHOFE. Yes. 

Senator BOXER. I asked if I could have a second round and you 

said, no, I could not. I don’t ever remember my ever stopping from 

a second round. I ask unanimous consent that I have a second 

round to make some points at this time. 

Senator INHOFE. I object. 

Senator BOXER. Then I ask unanimous consent that I be allowed 

to place documents in the record. 

Senator INHOFE. We have already done that. 

Senator BOXER. No, I want to say what they are. I ask unanimous consent that Senator Markey’s first statement be submitted 

to the record. 

Senator INHOFE. Without objection. 

[The referenced information follows:] 

STATEMENT OF HON. EDWARD J. MARKEY, U.S. SENATOR

FROM THE STATE OF MASSACHUSETTS

Administrator McCarthy, under your leadership the EPA has been working on 

common-sense policies to continue the gains in clean air, clean water and public 

health that our country has made during the last 40 years. Thank you for being 

here today to answer questions about how our country can maintain that progress 

and continue to move forward. 

Being from Boston, there is no denying that we’ve had a weird winter. Arctic air 

that usually hangs out in Alaska has instead been in New England. When that cold 

air meets the record warm water in the Atlantic, the result is extraordinary snowfall. Snow that our friends in the western US would love to have as they look at 

the small snowpack on their mountains and wonder where winter went this year. 

These weird winters are what scientists have predicted would happen as the levels of carbon pollution buildup in our atmosphere from burning fossil fuels. 

In the United States, power plants are a major producer of carbon pollution and 

the EPA is working on standards to reduce pollution from them. I want to see you 

finalize the strongest Clean Power Plan possible. Getting the renewable energy component of it right will be critical. 

Wind and solar electricity generation has seen extraordinary growth in the United 

States in the last decade. And with that growth, costs have fallen dramatically. 

And once the Clean Power Plan is finalized those cost savings will continue even 

as we cut dangerous carbon pollution. 

Senator BOXER. I ask unanimous consent that the National Climate Assessment which was voted on by the Senate 100 to 0 be 

put in the record that shows that climate change is going to harm 

human health. 

83 

Senator INHOFE. Without objection. 

[The referenced information follows:] 

84 


94980.094
85 


94980.095
86 

Senator BOXER. I have put in the record two documents that 

show how climate change is fueling our California drought. 

Senator INHOFE. Without objection. 

[The referenced information follows:] 

87 


94980.067
88 


94980.068
89 


94980.069
90 


94980.070
91 


94980.071
92 


94980.072
93 


94980.074
94 


94980.075
95 

Senator BOXER. I ask unanimous consent to put in the record a 

Washington Post article, The Remote Alaskan Village that Needs 

to Be Relocated Due to Climate Change. 

Senator INHOFE. Without objection. 

[The referenced information follows:] 

96 


94980.081
97 


94980.082
98 


94980.083
99 


94980.084
100 


94980.085
101 


94980.086
102 

Senator BOXER. I ask unanimous consent to put in the record the 

peer-reviewed study that shows warmer temperatures equal bigger 

snow storms. 

Senator INHOFE. Without objection. 

[The referenced information follows:] 

103 


94980.030
104 


94980.031
105 


94980.032
106 


94980.033
107 


94980.034
108 


94980.035
109 


94980.036
110 


94980.037
111 


94980.038
112 


94980.039
113 


94980.040
114 


94980.041
115 


94980.042
116 


94980.043
117 


94980.044
118 


94980.045
119 


94980.046
120 


94980.047
121 


94980.048
122 


94980.049
123 


94980.050
124 


94980.051
125 


94980.052
126 


94980.053
127 


94980.054
128 


94980.055
129 


94980.056
130 


94980.057
131 


94980.058
132 


94980.059
133 


94980.060
134 


94980.061
135 


94980.062
136 


94980.063
137 


94980.064
138 


94980.065
139 


94980.066
140 

Senator BOXER. Last, I would ask unanimous consent that I put 

in a document that shows that Professor Laurence Tribe was hired 

by Peabody Coal, the world’s largest privately held coal company, 

to write an opinion that criticized the coal rule. 

Senator INHOFE. Without objection. 

[The referenced information follows:] 

141 


94980.076
142 


94980.077
143 


94980.078
144 


94980.079
145 


94980.080
146 

Senator BOXER. Thank you. 

Senator INHOFE. Without objection, we are adjourned. 

[Whereupon, at 11:04 a.m., the committee was adjourned.] 

[Additional material submitted for the record follows.] 

147 


94980.087
148 


94980.088
149 


94980.089
150 


94980.090
151 


94980.012
152 


94980.013
153 


94980.014
154 


94980.015
155 


94980.016
156 


94980.017
157 


94980.018
158 


94980.019
159 


94980.020
160 


94980.021
161 


94980.022
162 


94980.023
163 


94980.024
164 


94980.025
165 


94980.026
166 


94980.027
167 


94980.028
168 

Æ 


94980.029