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92–385 PDF 2004

S. HRG. 108–363

NOMINATION OF MICHAEL O. LEAVITT

HEARING

BEFORE THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

THE NOMINATION OF GOVERNOR MICHAEL O. LEAVITT, OF UTAH, TO

BE ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

SEPTEMBER 23, 2003

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

(

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

JAMES M. INHOFE, Oklahoma, Chairman

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

GEORGE V. VOINOVICH, Ohio

MICHAEL D. CRAPO, Idaho

LINCOLN CHAFEE, Rhode Island

JOHN CORNYN, Texaa

LISA MURKOWSKI, Alaska

CRAIG THOMAS, Wyoming

WAYNE ALLARD, Colorado

JAMES M. JEFFORDS, Vermont

MAX BAUCUS, Montana

HARRY REID, Nevada

BOB GRAHAM, Florida

JOSEPH I. LIEBERMAN, Connecticut

BARBARA BOXER, California

RON WYDEN, Oregon

THOMAS R. CARPER, Delaware

HILLARY RODHAM CLINTON, New York

ANDREW WHEELER, Majority Staff Director

KEN CONNOLLY, Minority Staff Director

(II)

CONTENTS

Page

SEPTEMBER 23, 2003

OPENING STATEMENTS

Allard, Hon. Wayne, U.S. Senator from the State of Colorado ............................ 32

Letter, Utah Attorney General Shurtleff ........................................................ 64

Baucus, Hon. Max, U.S. Senator from the State of Montana .............................. 30

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 34

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware ................... 51

Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New York ........ 26

Cornyn, Hon. John, U.S. Senator from the State of Texas .................................. 43

Crapo, Hon. Michael D., U.S. Senator from the State of Idaho ........................... 29

Graham, Hon. Bob, U.S. Senator from the State of Florida ................................ 77

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

Jeffords, Hon. James M., U.S. Senator from the State of Vermont .................... 17

Lieberman, Hon. Joseph I., U.S. Senator from the State of Connecticut ........... 17

Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska ........................... 24

Reid, Hon. Harry, U.S. Senator from the State of Nevada .................................. 23

Thomas, Hon. Craig, U.S. Senator from the State of Wyoming .......................... 22

Voinovich, Hon. George V., U.S. Senator from the State of Ohio ........................ 19

Warner, Hon. John W., U.S. Senator from the Commonwealth of Virginia ....... 19

Wyden, Hon. Ron, U.S. Senator from the State of Oregon .................................. 21

WITNESSES

Bennett, Hon. Robert F., U.S.Senator from the State of Utah ............................ 9

Leavitt, Hon. Michael O., Nominated by the President to be Administrator,

U.S. Environmental Protection Agency .............................................................. 35

Committee questionnaire ................................................................................. 81

Prepared statement .......................................................................................... 78

Responses to additional questions from:

Senator Baucus .......................................................................................... 110

Senator Boxer ............................................................................................ 132

Senator Carper .......................................................................................... 143

Senator Chafee .......................................................................................... 93

Senator Clinton ......................................................................................... 146

Senator Graham..................................................................................... 112, 117

Senator Inhofe ........................................................................................... 91

Senator Jeffords ....................................................................................... 95, 108

On behalf of:

Center for Progressive Regulation ............................................. 104

Congressman Bart Stupak ......................................................... 104

PETA ............................................................................................ 101

Senator Jon S. Corzine ............................................................... 101

Senator Debbie Stabenow ........................................................... 102

Senator Lieberman ................................................................................ 117, 122

Senator Murkowski ................................................................................... 94

Senator Voinovich ..................................................................................... 92

Senator Wyden....................................................................................... 141, 143

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah ................................ 5

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

Page

IV

ADDITIONAL MATERIAL

Article, Right Choice for the EPA, Washington Post ............................................ 13

Letters:

Governor Bill Richardson ................................................................................. 15

Senator Benjamin Nelson ................................................................................ 14

Sundry organizations ....................................................................................... 12

Reports:

EPA’s Response to the World Trade Center Collapse, Office of Inspector

General ....................................................................................................... 154–309

Latest Findings on National Air Quality, 2002 Status and

Trends......................................................................................................... 310–343

Statements:

EPA’s Labor Unions ......................................................................................... 152

Skull Valley Band of Goshute Indians ............................................................ 343

(1)

NOMINATION OF MICHAEL O. LEAVITT

TUESDAY, SEPTEMBER 23, 2003

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

The committee met, pursuant to notice, at 9 o’clock a.m. in room

406, Senate Dirksen Building, Hon. James M. Inhofe [chairman of

the committee] presiding.

Present: Senators Inhofe, Jeffords, Voinovich, Wyden, Thomas,

Clinton, Baucus, Reid, Murkowski, Cornyn, Warner, Allard, Boxer,

Crapo, Chafee, and Bond.

OPENING STATEMENT OF HON. JAMES M. INHOFE,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator INHOFE. I would like to make one comment before moving on to Governor Leavitt and whomever else would come forward,

Senator Bennett, I think Senator Hatch is here for introductory

purposes. While you are being seated, let me comment briefly on

some criticism directed at the Governor concerning the nomination

protocol.

Last week, Senator Lieberman issued a press release announcing

his intention to place a hold on Governor Leavitt’s nomination citing his refusal to answer pre-hearing questions. As I stated in my

response last week, Governor Leavitt never officially received questions from the EPW committee. In fact, it is unprecedented for this

committee to subject a nominee for the EPA Administrator to prehearing questions. It has never happened before. Our standard

practice is for all members to have the opportunity to meet with

the nominee privately prior to the hearing and to ask formal questions during the hearing and written questions after the hearing.

I know that Senator Lieberman was offered this meeting and he

rejected it. He wasn’t able to work it into his schedule and I think

it is a shame he is not here today. I certainly he would not have

a hold for this purpose because he is in California at some fundraisers right now and I believe this is more important.

With that, we will move on to the opening statements. We are

going to have a full house today and we will have to stop by noon.

My intention would be for us to limit our opening statements. Senator Jeffords and I will limit ours to 5 minutes. We would ask the

members to limit theirs to 3 minutes. Then we will have 5-minute

rounds, as many rounds as you want to have. Senator Wyden, we

talked about this and you will certainly get ample opportunity to

do that. We will start with my opening statement.

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The EPW committee convenes this morning to consider the nomination of Governor Michael Leavitt to be the next Administrator of

the Environmental Protection Agency. It is my honor to welcome

Governor Leavitt to the committee. I apologize for the fact that you

were inconvenienced and your wife was inconvenienced even more

last week when we had to change it at the last minute from Thursday to Tuesday. We had one of our members who objected to that

time.

I also want to thank you for your commitment to address the Tar

Creek situation. The members of this committee have heard me

talk about this now since last January as the most devastating

Superfund site in America. I know we will be able to work out a

solution to that during your tenure.

Let me be clear from the outset, this may come as news to some

of you but this hearing is about Governor Mike Leavitt, about his

qualifications to serve as the Nation’s top environmental official. It

is not about the Administration, it is not about that environmental

policy. Governor Leavitt is currently the longest serving Governor

in the Nation, having ably served the people of Utah for 11 years.

Five times during his administration, independent public policy analysts have ranked Utah the Nation’s best managed State.

He is a former chairman of the National Governors’ Association

where he served as Governor with two of our members, Senator

Voinovich and Senator Carper, who I understand will be here very

shortly. He has also chaired the Western Governors’ Association as

well as the Council of States.

Consider the Governor’s accomplishments on air quality, the

State of Utah meets all Federal air quality requirements. His State

under his leadership meets all Federal air quality requirements.

During 11 years as Governor, Mike Leavitt has made great strides

in improving Utah’s water. The facts speak for themselves as the

State’s watersheds are among the cleanest in the Nation.

Governor Leavitt has also implemented initiatives similar to legislation sponsored by Senator Chafee which this committee and the

full Senate passed unanimously. In Utah, nearly 5,000 underground storage tanks have been cleaned up and upgraded preventing toxic substances from entering the State’s water supply.

Also, the EPA has adopted Utah’s concentrated animal feeding operations which reduced the impact of farming and ranching on

water quality as a national model. Governor Leavitt, I congratulate

you.

As I noted earlier, much of this hearing will be focused on something else, President Bush’s environmental record. I am confident

we will hear the drum beat of denunciations that begin with the

day President Bush took office. The litany goes something like this.

The air is dirtier; kids are suffering from asthma attacks and respiratory diseases; precious lakes, rivers, streams and forests are

more polluted and big oil’s campaign contributions are corrupting

national environmental policy. None of this has a basis in fact.

What are the facts? Last Monday the EPA released its 2003 Air

Quality Report. The findings might shock some in this room. Today

the air is cleaner than the day President Bush took office. Under

SO2 emissions from powerplants, we are 9 percent lower than we

were in 2000. NOX emissions from powerplants also show a 13 perVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 92385 SENENV1 PsN: SENENV1
3

cent reduction from the year 2000. There is certainly more work to

be done and that is why the President has initiated his Clear Skies

Initiative which is the most far-reaching and aggressive reduction

in emissions of any President in history, some 70 percent reductions in emissions of SOX, NOX and mercury.

Even environmental groups couldn’t ignore it when in April of

this year President Bush announced a 90 percent reduction in off

road diesel fuel emissions. The EPA estimated by 2030, new regulations will prevent 9,600 premature deaths a year, along with

8,300 hospitalizations, 16,000 heart attacks and 5,700 children’s

asthma related emergency room visits. Even the NRDC called it a

bold proposal that will be the biggest public health step since lead

was removed from gasoline more than two decades ago. Just after

he took office, President Bush proposed landmark brownfields legislation. It passed unanimously in this committee, sailed through

both Houses of Congress and will help cleanup 500,000 brownfield

sites all across the Nation.

We are going to hear a lot today about President Bush’s proposal

on New Source Review, Superfund and healthy forests. You are

going to hear that New Source Review reform amounts to the biggest clean air rollback in history. It is absolutely false. New source

review reform does not permit any pollution increase but merely allows companies to modernize their facilities to make them more efficient and more pollution free.

You are going to hear that under Superfund, President Bush is

letting polluters off the hook. That is absolutely false. He has a polluters pay policy which is in effect today and polluters are in fact

paying.

You are going to hear that the President’s healthy forest imitative is a gift to the timber industry to destroy forests. You just ask

anyone in New Mexico or Arizona and nothing could be further

from the truth.

I guarantee you this. President Bush and Mike Leavitt will further the progress we have made in the last 30 years and President

Bush and Mike Leavitt will lead us into a new era of environmental protection.

[The prepared statement of Senator Inhofe follows:]

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

OKLAHOMA

Good morning. The Committee on Environment and Public Works convenes this

morning to consider the nomination of Governor Michael Leavitt to be the next Administrator of the Environmental Protection Agency. It is my honor to welcome Governor Leavitt to the committee and I look forward to his testimony. Governor, I

apologize to you and your wife for the last-minute cancellation. I hope you weren’t

too inconvenienced. It’s good to have you here.

I also want to thank you for your commitment to addressing the Tar Creek Superfund site in Oklahoma. As you know, this is a top priority for me and I appreciate

discussions we have already had on this subject. I look forward to working with you

and to our upcoming tour of the area after you are confirmed.

Let me be very clear from the outset: this may be news to some, but this hearing

is about Governor Mike Leavitt, about his qualifications to serve as the nation’s top

environmental official. Some environmental groups view this hearing as a proxy

fight over President Bush’s environmental record. These attacks cannot go unanswered, but for now I want to talk about a nominee with an impeccable record of

service to our country.

4

Where to begin? There is a lot to talk about. Governor Leavitt’s resume is marked

by extensive experience in government and the private sector, and a long list of stellar accomplishments.

I don’t think anyone has any doubt—on either side of the aisle—that Mike Leavitt

is supremely qualified to be the next Administrator of the Environmental Protection

Agency. And I would also say that no member disagrees that Mike Leavitt has the

proper moderation, balance and temperament to handle the challenges that come

with the job.

Governor Leavitt is currently the longest serving Governor in the Nation, having

ably served the people of Utah for 11 years. Five times during his administration,

independent public policy analysts have ranked Utah the nation’s best-managed

State.

He is a former chairman of the National Governors’ Association, where he worked

closely with two former Governors on this committee: Sen. Voinovich and Sen. Carper. He also chaired the Western Governors’ Association, the Republican Governors’

Association, and the Council of the States. Before being elected Governor of Utah

in 1992, he served as an outside director of two large public corporations and was

a member of the Utah State Board of Regents, overseeing the State’s nine colleges

and universities.

Some environmental groups have airily dismissed these accomplishments. True to

form, they have maligned the Governor’s record. The Sierra Club, for example,

called Governor Leavitt a ‘‘disappointing choice,’’ but never offered compelling proof

to justify its opinion. The reason is simple: the facts show that Governor Leavitt’s

environmental record is one of the best in the Nation.

Just consider the Governor’s accomplishments on air quality: the State of Utah

meets all Federal air quality requirements. Let me repeat that: the State of Utah

meets all Federal air quality requirements. This was not the case before Governor

Leavitt took office.

Visibility in the West has improved dramatically, largely as a result of Governor

Leavitt’s service as co-chair of the Western Regional Air Partnership and vice-chair

of the Grand Canyon Visibility Transport Commission. The commission made over

70 recommendations improving visibility in 16 national parks and wilderness areas

on the Colorado Plateau.

Along with air quality, the American people view water quality as one of their

top environmental priorities. So does Governor Leavitt. During his 11-year tenure,

Governor Leavitt made great strides in improving Utah’s water. The facts speak for

themselves: the State’s watersheds are now among the cleanest in the Nation. Seventy-three percent of Utah’s streams currently meet Federal water quality standards, compared to 59 percent 10 years ago, a 24 percent improvement since Governor Leavitt took office. Currently, 60 percent of the nation’s streams meet this

standard.

Governor Leavitt also implemented initiatives similar to legislation sponsored by

Sen. Chafee, and which this committee, and the full Senate, approved unanimously.

In Utah, nearly 5,000 underground gas storage tanks have been cleaned up and upgraded, preventing toxic substances from entering the State’s water supply. Also,

the Environmental Protection Agency has adopted Utah’s Concentrated Animal

Feeding Operations, which reduce the impact of farming and ranching on water

quality, as a national model.

As his record attests, Governor Mike Leavitt is an excellent nominee and highly

qualified to head EPA. Unfortunately, as I noted earlier, much of this hearing will

be focused on something else: President Bush’s environmental record.

I’m confident we’ll hear the drumbeat of denunciations that began the day President Bush took office. The litany goes something like this: the air is dirtier, more

kids are suffering from asthma attacks and respiratory disease, precious lakes, rivers, streams, and forests are more polluted, and Big Oil’s campaign contributions

are corrupting national environmental policy.

This kind of apocalyptic environmental rhetoric isn’t new. We heard it during the

presidency of George H.W. Bush. In 1992, the Sierra Club said, ‘‘We’ve learned the

hard way that President Bush cannot be trusted.’’ President Bush, of course, signed

the 1990 Clean Air Act, including the highly successfully Acid Rain program, into

law. And today air quality by any measure has improved dramatically.

This kind of invective is an effective fundraising tool for some groups-and one, I

might add, that brings in a lot of money. But none of this has any basis in fact.

So what are the facts? On Monday, EPA released its 2003 air quality report. The

findings might shock some in this room. Today the air is cleaner than the day President Bush took office. SO2 emissions from power plants were 10.2 million tons in

2002, 9 percent lower than in 2000. NOx emissions from power plants also continVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6621 92385 SENENV1 PsN: SENENV1
5

ued a downward trend, measuring 4.5 million tons in 2002, a 13 percent reduction

from 2000.

There’s certainly more work to be done, and that’s why President Bush proposed

his Clear Skies Initiative. Clear Skies is the most aggressive Presidential initiative

in American history to reduce power plant emissions. It will reduce emissions

quicker and at lower cost than existing law and it is based on the 1990 Acid Rain

Program, which has reduced SO2 emissions 50 percent, and achieved nearly 99 percent compliance.

In April of this year, President Bush announced a 90 percent reduction in off-road

diesel fuel emissions. EPA estimated that by 2030 the new regulations will prevent

9,600 premature deaths a year, along with 8,300 hospitalizations, 16,000 heart attacks, and 5,700 children’s asthma-related emergency room visits.

Even environmental groups-who can’t stand to offer the President a hint of praisecouldn’t ignore it. NRDC called it a ‘‘bold proposal’’ that will be ‘‘the biggest public

health step since lead was removed from gasoline more than two decades ago.’’

Just after he took office, President Bush proposed landmark Brownfields legislation. It passed unanimously in this committee, sailed through both houses of Congress by overwhelming margins, and will help cleanup 500,000 brownfield sites all

across the Nation. In July, EPA provided $73.1 million in grants to 37 States for

this purpose. I say without hyperbole that this legislation was one of the most significant and successful bipartisan environmental accomplishments in a generation.

President Bush also took a stand on an important international environmental

issue: the Treaty on Persistent Organic Pollutants, or POPS Treaty. President Bush

signed the treaty during a Rose Garden ceremony, and then urged this committee

to pass implementing legislation sponsored by Sen. Chafee and Sen. Jeffords.

Now we’re going to hear a lot today about President Bush’s proposals on New

Source Review, Superfund, and Healthy Forests. I want to comment briefly on each

of them.

• You’re going to hear that New Source Review reform amounts to the biggest

clean air rollback in history. Absolutely false. NSR reform does not permit ANY pollution increases but merely allows companies to modernize their facilities and make

them more efficient.

• You’re going to hear that under Superfund President Bush is letting polluters

off the hook. Absolutely false. Whenever there is an identifiable, viable party responsible for a Superfund site, they pay. And they are paying now.

• You’re going to hear that the President’s Healthy Forests Initiative is a gift

to the timber industry to destroy our forests. Absolutely false. This initiative is designed to PREVENT forest fires that have so ravaged the livelihoods of families and

businesses in the West.

I will say this: if our economy continues to grow and prosper-something President

Bush is actively encouraging-our environment will continue to improve well into the

future. And President Bush’s policies will have a lot to do with it.

I guarantee you this: President Bush and Governor Mike Leavitt will further the

progress we’ve made over the last 30 years. History will show that key environmental indicators will improve faster, more aggressively, and at lower cost to the

public. As with the last 2 years, there will be no rollbacks, no setbacks, no pollution

increases, and no deterioration from our present condition. President Bush and

Mike Leavitt will lead us into a new era of environmental protection.

Senator INHOFE. Before we go on with further opening statements, I would like to recognize Senator Bennett or Senator Hatch,

whoever wishes to go first. Senator Hatch, you have seniority. Do

you have any comments you want to make about our nominee

today?

STATEMENT OF HON. ORRIN G. HATCH, A UNITED STATES

SENATOR FROM THE STATE OF UTAH

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

members of this distinguished committee.

I thank you for holding today’s hearing for Governor Leavitt’s

nomination to head the Environmental Protection Agency. I can

personally think of no better candidate for the job. Let me tell you

about Mike Leavitt. I think this is important.

6

I have known Mike Leavitt for almost 30 years. He is bright, he

is imminently capable and nobody works harder. Mike Leavitt listens before he acts, he consults before he commits, and above all,

he is fair and honest and everybody knows it. In short, he is the

perfect candidate for one of the toughest jobs in government today,

perhaps the toughest job in government today.

So Mr. Chairman, it is with particular pleasure that I introduce

Mike and Jackie Leavitt to you this morning. I look forward to welcoming my friends to Washington for their more permanent stay

after the Senate confirms Michael Leavitt as the Administrator of

the EPA.

Let me state for the record that Michael Leavitt is one of our Nation’s most able public figures. Is it any wonder that after serving

longer than any other sitting Governor, he has maintained one of

the strongest approval ratings ever enjoyed by a public official at

his level. The Governor has worked tirelessly for the good of Utah,

yet he has found time to serve as the chair of the Council of State

Governors, the Republican Governors’ Association, the Western

Governors’ Association and the National Governors’ Association.

The committee will hear many critics of the President’s environmental policies who I hope will be fair and will not use the nomination of Governor Leavitt as a soapbox to castigate our Chief Executive.

I don’t think Governor Leavitt’s stellar legacy and his careful

stewardship of Utah’s natural resources should be sacrificed at the

ardor of Presidential politics. With confidence, I would hold up

Utah’s environmental record to that of any other State in the

Union. While it is appropriate that Senators engage in a reasonable debate about the current Administration’s environmental policies, I would caution my colleagues to consider the environmental

challenges faced by their own States before anybody slings any unfair comments at a State which under Governor Leavitt has become

a model for beauty and good management.

Mr. Chairman, I have also seen news articles and press releases

highlighting some of the environmental challenges faced by Utahans. None of these challenges began during Governor Leavitt’s Administration and a number of them have no relationship at all to

the responsibilities of running the EPA. All States have environmental challenges, so rather than create a laundry list of Utah’s

problems, we should focus on how Governor Leavitt has responded

to Utah’s challenges.

It is a simple matter for a policymaker to give lip service to the

environmental protection. Governor Leavitt has been a consistent

and public supporter for protecting Utah’s environment, but actions

speak louder than words. No actions speaks louder than the willingness to allocate resources to an area of concern.

In his 10 years as Governor, Michael Leavitt has brought about

a 41 percent increase in spending on environmental protection and

that is after adjusting for inflation. According to the Environmental

Council of States, the average per capita spending on the environment is $51.80. Under Michael Leavitt, however, Utah has surpassed that average spending $62.31 per capita on the environment. This is all the more impressive considering Utah has fewer

7

taxpayers per capita because our families are larger than average

throughout the country.

When it comes to putting his money where his mouth is, Governor Leavitt also has shown his priorities on the total budget

spent on the environment. The average State spends about 1.4 percent of its budget on the environment. Utah shines under Governor

Leavitt’s leadership by spending 2 percent of its spending on the

environment.

Mr. Chairman, the greatest indicator of an Administration’s priorities is reflected in how money is spent. However, the next question should be how effectively that money was spent. I recall that

before Governor Leavitt’s first term of office, Utah routinely failed

to meet national clean air standards. This was due in large part

to the fact that the vast majority of Utahans live in a valley floor

surrounded on all sides with mountains. These mountains are

beautiful, as we all know, but under certain weather conditions,

they can serve to trap emissions in the Salt Lake Valley.

Governor Leavitt has helped our State overcome this obstacle to

bring our State into constant and consistent compliance with the

EPA’s air quality standards. He has also lead initiatives in our

State to preserve open space, improve our fisheries and upgrade

our municipal companies and systems. Governor Leavitt has also

been a leader in finding solutions to regional air problems by helping to promote the Grand Canyon Visibility Transport Commission

and the Western Regional Air Partnership.

When Governor Leavitt took office about 60 percent of Utah’s

streams met Federal water quality standards which is the current

national average for States. Under Mike Leavitt’s leadership, 73

percent of Utah’s streams now meet the Federal standards, a very

significant improvement well above the national average.

Mr. Chairman, I hope we can keep in mind that these were not

the actions of a man who sought the nomination to head the EPA.

These were actions of a man who loves the environment and who

loves his State, my State, Senator Bennett’s State and 2.2 million

people’s State.

Governor Leavitt is a man who recognizes that a healthy environment is as important as a healthy economy. However else his

detractors may try to spin it, the numbers prove this to be the case.

The numbers also show Governor Leavitt is one heck of a manager.

In five of his 10 years as Utah’s chief executive, Utah has been

ranked the best managed State, five of the 10 years Utah has been

ranked the best managed State.

USA Today recently concurred calling Utah the best fiscally

managed State in the country. Even after the extremely tough financial times faced by our States in recent years, under Governor

Leavitt, Utah has maintained its AAA bond rating.

Mr. Chairman, President Bush has done the Nation a real service with this nomination and I look forward to the positive impact

that Governor Leavitt will have on this important agency. Utahans

know that Governor Leavitt took a clean, beautiful and strong

State and made it cleaner, more beautiful and stronger. What more

could we ask for in the nominee to head the Environmental Protection Agency.

8

I know Mike Leavitt. He is an honorable, decent, good human

being with exceptional qualities and exceptional intelligence who

knows how to get along with everybody and who can make the

tough decisions that have to be made. He is precisely what is needed at EPA and I think everybody on this committee will be proud

of him when he concludes his service at the EPA.

I am talking to my fellow colleagues. I hope that you will treat

him fairly. He deserves it. I think all of his leadership of the Governors throughout this country is more than ample evidence that

he deserves it and I hope you will approve his appointment as

quickly as possible.

Again, I thank you, Mr. Chairman, for holding this hearing. I

know that you and the rest of our colleagues will be impressed with

Michael Leavitt as a person and as a proven administrator. I just

want you to know that I strongly support him and I hope all of you

will also.

[The prepared statement of Senator Hatch follows:]

STATEMENT OF HON. ORRIN HATCH, U.S. SENATOR FROM THE STATE OF UTAH

Mr. Chairman and members of the committee, thank you for today’s hearing on

Governor Mike Leavitt’s nomination to head the Environmental Protection Agency.

I can think of no better candidate for this important job.

Let me tell you about the Mike Leavitt I have known for almost 30 years. He is

bright. He is eminently capable. And nobody works harder. Mike Leavitt listens before he acts. He consults before he commits. And above all, he is fair and honest.

In short, he is the perfect candidate for one of the toughest jobs in government.

(And perhaps, the toughest job in government.)

And so, Mr. Chairman, it is with particular pleasure that I introduce Mike and

Jackie Leavitt to you this morning, and I look forward to welcoming my friends to

Washington for their more permanent stay after the Senate confirms Michael

Leavitt as the Administrator of the EPA.

Mr. Chairman, let me state for the record that Michael Leavitt is one of our nation’s most able public figures. Is it any wonder that after serving longer than any

other sitting Governor, he has maintained one of the strongest approval ratings ever

by enjoyed a public official at his level? The Governor has worked tirelessly tirelessly for the good of Utah. Yet, has found the time to serve as the chair of the

Council of State Governors, the Republican Governors’ Association, the Western

Governor’s Association, and the National Governor’s Association.

The committee will hear many critics of the President’s environmental policies

who I hope will be fair and will not use the nomination of Governor Leavitt as a

soapbox to castigate our Chief Executive.

I don’t think Governor Leavitt’s stellar legacy and his careful stewardship of

Utah’s natural resources should be sacrificed on the altar of Presidential politics.

With confidence, I would hold up Utah’s environmental record to that of any other

state in the Union.

While it is appropriate that senators engage in a reasonable debate about the current Administration’s environmental policies, I would caution my colleagues to consider the environmental challenges faced by their own States before slinging mud

at a State which under Governor Leavitt has become a model for beauty and for

good management.

Mr. Chairman, I have already seen news articles and press releases highlighting

some of the environmental challenges faced by Utahns. None of these challenges

began during Governor Leavitt’s administration and a number of them have no relationship at all to the responsibilities of running the EPA. All States have environmental challenges, so rather than create a laundry list of Utah’s problems, we

should focus on how Governor Leavitt has responded to Utah’s challenges.

It is a simple matter for a policymaker to give lip service to environmental protection, and Governor Leavitt has been a consistent and public supporter for protecting

Utah’s environment. But actions speak louder than words. And, no action speaks

louder than a willingness to allocate resources to an area of concern.

In Is 10 years as Governor, Michael Leavitt has brought about a 41 percent increase in spending on environmental protection, and that’s after adjusting for inflation. According to the Environmental Council of States, the average per capita

9

spending on the environment is $51.80. Under Michael Leavitt, however, Utah has

surpassed that average, spending $62.31 per capita on the environment. This is all

the more impressive considering Utah has fewer taxpayers per capita because our

families are larger than average.

When it comes to putting his money where his mouth is, Governor Leavitt also

has shown his priorities on the total budget spent on the environment. The average

State spends about 1.4 percent of its budget on the environment. Utah shines under

Governor Leavitt’s leadership by spending 2 percent of its budget on the environment.

Mr. Chairman, the greatest indicator of an administration’s priorities is reflected

in how money is

spent. However the next question should be how effectively that money was spent.

I recall that before Governor Leavitt’s first term of office, Utah routinely failed

to meet national clean air standards. This was due in large part to the fact that

the vast of Utahns live on a valley floor surrounded on all sides with mountains.

These mountains are beautiful, but under certain weather conditions they can serve

to trap emissions in the Salt Lake Valley. Governor Leavitt has helped our State

overcome this obstacle to bring our State into consistent compliance with the EPA’s air quality standards. He has also led initiatives in our State to preserve open

space, improve our fisheries, and upgrade our municipal sewer systems.

Governor Leavitt also has been a leader in finding solutions to regional air problems by helping to promote the Grand Canyon Visibility Transport Commission and

the Western Regional Air Partnership. When Governor Leavitt took office, about 60

percent of Utah’s streams met Federal water quality standards, which is the current

national average for States. Under his leadership, though, 73 percent of Utah’s streams now meet the Federal standards—a very significant improvement and well

above the national average.

Mr. Chairman, I hope we can keep in mind that these were not the actions of

a man who sought a nomination to head the EPA.

These were the actions of a man who loves the environment and who loves his

State.

Governor Leavitt is a man who recognizes that a healthy environment is as important as a healthy economy. However else his detractors may try to spin, the

numbers prove this to be the case.

The numbers also show Governor Leavitt is one heck of a manager. In five of his

10 years as Utah’s chief executive, Utah has been ranked the best-managed State.

USA Today recently concurred, calling Utah the best fiscally managed State in the

country. Even after the extremely tough financial times faced by our States in recent years, under Governor Leavitt, Utah has maintained its Triple A bond rating.

Mr. Chairman, President Bush has done the Nation a real service with this nomination, and I look forward to the positive impact that Governor Leavitt will have

on this important Agency.

Utahns know that Governor Leavitt took a clean, beautiful, and strong State and

made it cleaner, more beautiful, and stronger. What more could we ask for in a

nominee to head the Environmental Protection Agency?

Again, I thank you, Mr. Chairman, for holding this hearing. I know that you and

the rest of my colleagues will be impressed with Michael Leavitt as a person and

as a proven Administrator. Thank you.

Senator INHOFE. Senator Hatch, thank you for that very good

statement. We appreciate that.

We will now recognize Senator Bennett.

STATEMENT OF HON. ROBERT F. BENNETT, A UNITED STATES

SENATOR FROM THE STATE OF UTAH

Senator BENNETT. Thank you very much, Mr. Chairman.

I enjoyed my time as a member of this committee and if I were

a member still, I would vote enthusiastically to confirm Mike

Leavitt for this assignment.

Senator Hatch has laid out the public record. You, Mr. Chairman, have laid out many aspects of the public record of Mike

Leavitt, so if I might, without being redundant, I would like to talk

just a bit about the personal man that I know and share that with

the committee in the hope that it will provide you some insight to

this gentleman.

10

I first met Mike Leavitt when we were serving together on a

planning commission to deal with Utah’s schools. I had been appointed chairman of a strategic planning group for the Utah State

School Board and he was a member of the Board of Regents of the

university system and we were gathered together in a ski resort,

that is what we do in Utah during the summertime because there

is nobody else at the ski resorts, we were gathered there for a retreat to discuss Utah’s schools.

We spent a very intensive weekend. I first wanted to know who

was this very good looking young guy who seemed to have such

deep thoughts about education and the challenges facing it. Someone said, well, that is Dixie Leavitt’s son, Mike. Dixie Leavitt was

a well know and very successful State Senator in our State.

On that occasion, I discovered the first attribute of Mike Leavitt

that impressed me and that is he is a visionary. He is willing to

take the long view, he is willing to look at the big picture, he

doesn’t get bogged down in the leaves and the trees. He can step

back and look at the forest as a whole and have a visionary view.

Impressed with that, I thought this is a young man with a future

but I went on about my business, he went on about his and the

next time I met him, he had called for an appointment and came

to see me in my office. As he sat down, he told me he was planning

to run for Governor and he wanted my support. I told him I wasn’t

going to be able to give him my support because I was planning

to run for Senator and it isn’t a good idea to get involved in any

campaigns other than your own. We talked on that occasion about

our political careers and how they might go forward together in

1992.

Utah has a convention and primary system. We share the honor

of both finishing second in the convention. We happen to share that

with Senator Hatch who finished second in his convention as well

but second is good enough to get into the primary in Utah. The primary is limited to only two and in that fight, I discovered the second thing about Mike Leavitt to go along with his being a visionary. I discovered how tenacious he was. He finished second in the

convention but he finished first in the primary. He simply outworked his opponent in every way and came out on top in the primary. I happened to do the same thing in my primary. We shared

the ticket together and won election in 1992. So I found out how

tenacious this visionary young man was.

We have worked together since our common elections in 1992, he

as Governor and I as Senator, and I found a third characteristic

of his. He is innovative. He is willing to try new things. He is willing to think new thoughts. He is not tied down to the way things

have been done in the past. I have been impressed with that and

found it refreshing to be able to pick up the phone and call the

Governor and say, let us have one of our breakfasts at Marie

Callander’s, which is a restaurant that happens to be between his

home and mine, and we would gather there for breakfast and sit

there and he would tell me the new things he was thinking of and

we would talk about innovative ways to deal with the problems of

our State.

So I offer you a man who is a visionary, who is tremendously tenacious and who is innovative but who has a fourth attribute I

11

would like to share with you that I think is perhaps the most important one in this assignment the President has given him.

Throughout these 11 years we have worked together, I have

come to know that Mike Leavitt is one who seeks solutions rather

than exploitation of issues. There are always in the political arena

those on both sides of the aisle of the ideological spectrum if you

will who are more interested in preserving an issue, keeping it

alive and gaining some political advantage from it than in finding

a solution to the problem.

In Utah, the temptation to do that can be very, very high, particularly for a Governor of the party that seems to be at the moment the predominant party. I am old enough to remember when

the Democrats were the predominant party in Utah and I know

there are some who are hoping those times will come again but

they are not here at the moment and the temptation to demagogue

an issue on behalf of the majority can be very, very strong when

you are the Governor in that kind of a situation.

Mike Leavitt has offended some of the members of his political

base by reaching out to those who are not part of that base and

saying to them, let us see if we can’t find a solution. One of the

first persons I called when I found the President had convinced

Mike to take this position, and it was not the first time the President asked and Mike said yes, it was about the seventh or eighth,

I think, one of the first people I called when I found the President

had made this decision was Bruce Babbitt. Secretary Babbitt was

a man who was booed, picketed, attacked very often when he appeared in the West. I hope we were a little more polite than that

when he came to Utah but I know many times when he came to

Utah there were plenty of people just ready to get out the magic

markers, create the placards and hit the streets.

Mike Leavitt could have taken advantage of that politically and

turned Bruce Babbitt into something of a political cartoon character in Utah’s atmosphere. He did not. I remember being at the

signing ceremonies with Bruce Babbitt and Mike Leavitt as problems that could be solved were solved and I remember listening to

the grumbling on the part of some of Mike Leavitt’s political base

who said, what is he doing dealing with that guy. What he was

doing is what he will do as Administrator of EPA. He was reaching

out to find a solution to a problem rather than an exploitation of

an issue.

There will be some who will appear before you who come from

Utah to whom he reached out but never quite connected. That is

always the case. You can never satisfy everyone. While I respect

the right of those Utahans to come before you and make their case

against Mike Leavitt, I remind you that overwhelmingly the people

of Utah, both parties and independents, have given this man not

only two overwhelming reelections, one initial election, but a consistently high approval rating which Orrin and I can only envy.

He comes to you as a visionary, a man who is very tenacious,

very innovative and most importantly, one who will reach out and

establish his record as a seeker of solutions. I can think of no better set of attributes for any Federal appointee to have. I urge the

committee to report him to the Senate with full enthusiasm and I

12

look forward to the opportunity to vote for his confirmation on the

floor.

Senator INHOFE. Thank you for that excellent statement, Senator

Bennett.

At this time, we would ask if you would like to be excused, you

may.

At this point in the record, I would like to enter four documents

of a similar nature to these introductions. One would be a letter

supporting the Governor from a dozen organizations. I would also

like to enter in the record an editorial written by the former Democratic Governor of Maryland, Parris Glendening, praising Governor

Leavitt. I also expect to have a letter in support of Governor

Leavitt entered in the record written by the NBA superstar Carl

Malone on behalf of the African American Environmentalist Association and last that of your former colleague, former Governor Ben

Nelson from Nebraska. Without objection, they will be entered in

the record at this time.

September 19, 2003.

Hon. JAMES INHOFE,

Senate Russell Building,

Washington, DC. 20510.

Hon. JAMES M. JEFFORDS

Senate Dirksen Building

Washington, DC. 20510

DEAR SENATOR INHOFE AND SENATOR JEFFORDS: The Senate Environment and Public Works Committee will soon be considering Utah Governor Mike Leavitt for appointment to the Environmental Protection Agency. The 12 organizations listed

below represent over 250,000 dedicated wildlife conservationists. We commend your

efforts to protect the future of America’s natural resources and we support the confirmation of Mike Leavitt as Administrator of the Environmental Protection Agency.

Mike Leavitt has shown a strong commitment to wildlife conservation in Utah,

increasing funding by nearly $100 million during his tenure as Utah’s Governor. He

has appointed wildlife commissioners with a strong commitment to wildlife and

quality wildlife programs. He has shown leadership in the development of conservation easements and land acquisitions for critical deer and elk winter ranges. He has

supported major efforts on wetlands restoration.

Under Governor Leavitts’ administration, Utah was recognized as a national leader for wild turkey transplants and restoration. Mike Leavitt was awarded the 2000

Outstanding Statesman Award by the Foundation for North American Wild Sheep

for Utah’s wild sheep restoration effort. He also instituted a Blue Ribbon Fishery

program to enhance Utah’s already famous trout fisheries.

Mike Leavitt supports America’s wildlife and we support Mike Leavitt.

Respectfully,

ARCHERY TRADE ASSOCIATION, BOONE AND CROCKETT CLUB,

BOWHUNTING PRESERVATION ALLIANCE,

BUCKMASTERS AMERICAN DEER FOUNDATION,

DALLAS SAFARI CLUB,

FOUNDATION FOR NORTH AMERICAN WILD SHEEP,

ROCKY MOUNTAIN ELK FOUNDATION,

SHIKAR-SAFARI CLUB,

SPORTSMEN FOR FISH AND WILDLIFE,

SPORTSMEN FOR HABITAT,

TEXAS WILDLIFE ASSOCIATION,

U.S. SPORTSMAN’S ALLIANCE

13

[From the Washington Post, September 20, 2003]

THE RIGHT CHOICE FOR THE EPA

(By Parris Glendening)

Think of a key environmental issue—global warming, air pollution, storm water

runoff, habitat destruction—and chances are its causes can be traced to haphazard

urban growth.

When cities and States fail to plan well for their development, roads and sewers

become overburdened and send emissions and effluent into our air and water. Ecologically critical lands disappear before we can protect them. Our people’s health

and quality of life degrade.

For these reasons, it is essential that the next administrator of the Environmental

Protection Agency understand the connections between urban sprawl and the environment. Fortunately, Utah Gov. Mike Leavitt, the president’s nominee for the post,

is one who does.

I learned this firsthand in working with the Governor at the National Governors

Association (NGA) over the past few years. In our respective stints as NGA chairman, Leavitt and I collaborated on an effort to raise the profile of growth issues

while developing tools States can use to tame sprawl and build healthy cities and

towns. In Governors-only sessions, he lobbied hard, and successfully, for NGA to

produce its first-ever land use principles.

Leavitt’s passion in this arena grew out of his experience in Utah. While his home

State is largely rural, the vast majority of its population—and most of the projected

future growth—is concentrated in an environmentally sensitive corridor along the

Wasatch Mountains, stretching 100 miles to the north and south of Salt Lake City.

The population of this sliver of Utah is expected to swell from 1.6 million in 2000

to 5 million by 2050.

Leavitt recognized that it was the State’s responsibility to make sure that this

growth didn’t become an unlivable mess. At the same time, he believed that citizens

and local governments should have a strong say in developing a vision for their future.

With those principles in mind, he created a commission to administer a special

fund for protecting open space in developing areas. He secured funding to preserve

175 miles of railroad right-of-way for commuter rail. And, most impressively, he

served as honorary co-chairman of Envision Utah, lending unequivocal support to

a public-private planning effort that has become a national model. Led by a coalition

of business, civic and government leaders, Envision Utah began by listening to people, thousands of them. Citizens were invited to more than 150 public workshops,

where, through use of innovative planning tools, they were able show how they

wanted to shape future land use, transportation and open space preservation.

Mike Leavitt participated in the workshops just like any other citizen, sitting for

hours with fellow Utahns at one of the many workshop tables. When Envision Utah

asked every household in the region to complete a survey on the region’s future, he

sat down with his family to do just that. And he recorded a television ad urging

his constituents to do the same.

In the end, citizens said they wanted more investment in public transit and affordable housing, more reliance on cycling and walking, more preservation of open

spaces and more town-like development along key transportation spines. The chosen

Quality Growth Strategy departs dramatically from current trends, conserving 171

square miles of land; offering expanded choices in housing and neighborhood types;

reducing vehicle emissions and traffic congestion; and saving $4.5 billion in transportation, water, sewer and utility infrastructure, which would have subsidized

sprawl.

I’ll leave it to environmentalist colleagues to scrutinize other aspects of the Governor’s record. No doubt they will press him to explain how his support of the controversial Legacy Highway squares with his quality-growth principles, as they

should.

As Leavitt well knows, the EPA has become an important partner in developing

citizen-friendly, market-oriented approaches to managing urban growth along the

lines of Envision Utah, which the EPA helped to fund. Far from dictating how

places should grow, the agency has supported innovation, served as a clearinghouse

for best practices and showed admirable flexibility on redeveloping industrial

brownfields and managing urban runoff.

Grappling with sprawl and creating great communities have nothing to do with

partisanship. Governors from both parties have been leaders in these arenas.

14

As Senators debate Leavitt’s confirmation as EPA chief they would do well to recognize his bipartisan leadership in bringing issues of growth and quality of life to

the fore.

15

16

Senator INHOFE. I have already had my 5-minute opening statement and I would recognize Senator Jeffords. I would admonish all

the members of the committee after Senator Jeffords, to confine

your statements to 3 minutes. We are going to have many, many

opportunities for you to participate in 5-minute rounds. We want

to have some discipline here so everyone will have an equal chance.

Senator Jeffords?

17

OPENING STATEMENT OF HON. JAMES M. JEFFORDS,

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Senator JEFFORDS. Thank you, Mr. Chairman and Governor, it is

a pleasure to be with you. I have enjoyed working with you over

the years, especially in education. I admire what you have done in

your State and in that area. I would like to talk with you a little

bit about where we are going here.

I also shared the same enthusiasm with your predecessor, Governor Whitman, who I had worked with over the years and felt

very strongly about her capacity and her abilities. Then I anguished with her as she struggled with the problems in the environmental area and with this Administration.

I would like to say as I anguished with her and she finally left,

I start with the same optimism for you, that hopefully we will be

able to find consensus on many of these environmental issues

which are so troublesome.

As a background to that, I would like to give you some idea

where we feel things are at this time. Last week, we were troubled

by Hurricane Isabel’s approach on Washington but we escaped

much of the natural disaster. Governor Leavitt, I am troubled by

the other disaster that has hit Washington. It is the environmental

policies of this Administration. It is hitting the entire country and

will harm generations to come.

Today, we are literally in the eye of that storm. Governor, the

record of the Environmental Protection Agency under the President

is abysmal. We have watched the Administration roll back environmental laws and regulations day after day, week after week, month

after month. They have been dismantling our environmental laws

and the protections that our citizens have come to expect and I believe deserve by their government.

Allowing the sale of properties contaminated with PCBs and exposing our citizens to highly toxic chemicals troubles me. Limiting

State decisions for allowing offshore oil drilling on their own coastlines troubles me. Allowing the fund that pays for cleaning up

abandoned toxic Superfund sites across the country to go bankrupt

troubles me. Omitting an entire section on climate change with a

White House report of the State of the Nation’s environment despite convincing science on the contrary troubles me.

Deciding not to classify carbon dioxide as a pollutant troubles

me. Forcing EPA to assume reassuring statements and delete cautionary ones related to the air quality standards surrounding the

ground zero site following the September 11 attacks troubles me.

Proposing rules that would narrow the waters protected over the

last 30 years under the Clean Water Act troubles me. Allowing the

major polluters to avoid installing modern, controlled equipment of

the New Source Review rule devastates the years of progress under

the Clean Air Act and deeply troubles me.

Governor, many of these decisions have been made with little

input from the people who will be most affected by them and must

implement them. This troubles me. As head of the agency charged

with upholding the laws that protect our people and their environment, you will be responsible but we, the members of this committee, the Senate and the Congress, are responsible for overseeing

your agency and the decisions made. Yet, I do not believe we can

18

carry out that responsibility without the cooperation of the Administration in the ones on which we would like to receive cooperation.

I have made repeated requests of the EPA to provide information

and have not received it. For example, I have asked for the analysis of the effects the New Source Review rule would have on the

environment and public health. I have not received it. The lack of

transparency in this Administration’s decisionmaking and the lack

of cooperation with the Congress troubles me. Governor, this Administration’s disregard for environmental law is bigger than one

agency and one Administration.

I don’t know if you as the head of EPA can bring the needed responsible environmental leadership to this Administration. This is

a difficult but necessary process. I commend you for your willingness to serve. I understand the difficulties that you will have trying

to reconcile what I have said about the policies and hopefully we

can work closely together because I want to work closely with you

to see if we can make some progress.

Thank you very much.

[The prepared statement of Senator Jeffords follows:]

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

VERMONT

Thank you Senator Inhofe, and I’d like to join you in welcoming Governor Leavitt

and thank him for adjusting his schedule so he could be here today.

Last week we were troubled by Hurricane Isabel’s approach on Washington, but

we escaped much of that natural disaster. But, Governor Leavitt, I am troubled by

the other disaster that has hit Washington. It is the environmental policies of this

Bush Administration, and it is hitting the entire country and will harm generations

to come. Today, we are literally in the eye of the storm.

Governor, the record of the Environmental Protection Agency under this President

is abysmal. We have watched this Administration roll back environmental laws and

regulations day after day, week after week, month after month. They have been dismantling our environmental laws and the protections that our citizens have come

to expect, and I believe, deserve from their government.

Allowing the sale of properties contaminated with PCBs and exposing our citizens

to highly toxic chemicals troubles me;

Limiting a State’s decisions for allowing offshore oil drilling on their own coastline

troubles me;

Allowing the Fund that pays for cleaning up abandoned toxic Superfund sites

across the country to go bankrupt troubles me;

Omitting an entire section on climate change from a White House report on the

State of the nation’s environment, despite convincing science to the contrary, troubles me;

Deciding not to classify carbon dioxide as a pollutant troubles me;

Forcing EPA to ‘‘add reassuring statements and delete cautionary ones’’ relating

to the air quality standards surrounding the ground zero site following the September 11th attacks troubles me;

Proposing rules that would narrow the waters protected over the last 30 years

under the Clean Water Act troubles me;

And allowing major polluters to avoid installing modern control equipment in the

New Source Review Rule devastates the years of progress under the Clean Air Act—

and deeply troubles me.

Governor, many of these decisions have been made with little input from the people who will be most affected by them and must implement them, and this troubles

me.

As head of the Agency charged with upholding the laws that protect our people

and their environment, you will be responsible.

But we, the members of this committee, the Senate, and the Congress, are responsible for overseeing your Agency and the decisions made. Yet I do not believe we

can carry out that responsibility without the cooperation of the Administration, and

I, for one, have not received that cooperation.

19

I have made repeated requests of the EPA to provide information, and have not

received it. For example, I have asked for the analysis of the effects that the New

Source Review Rule would have on the environment and public health. I have not

received it.

The lack of transparency in this Administration’s decisionmaking, and the lack of

cooperation with the Congress troubles me.

Governor, this Administration’s disregard for environmental laws is bigger than

one Agency and one Administrator. I don’t know if you, as head of EPA, can bring

the needed responsible environmental leadership to this Administration. This is a

difficult but necessary process, but I commend you for your willingness to serve.

Senator INHOFE. Thank you, Senator Jeffords.

I would like to ask unanimous consent that Senator Warner be

recognized for one minute. He has to chair the nomination hearing

of the Secretary of the Navy. Is there objection? Hearing none.

OPENING STATEMENT OF HON. JOHN W. WARNER,

U.S. SENATOR FROM THE COMMONWEALTH OF VIRGINIA

Senator WARNER. Thank you, colleagues.

Contrary to my friend and colleague, Senator Jeffords, I am confident, having met you and studied your impressive career, that

you can bring that leadership to this department. I intend to give

you the strongest possible support all along the way.

Thank you, Mr. Chairman. I just wanted to make that very clear.

I congratulate him on the manner in which you did your consultative process with the members of this committee prior to this

hearing certainly on my part and other colleagues said it was very

thorough.

Mr. Chairman, I would also say I am ready to go to work with

my staff on the highway bill tomorrow. We can’t wait 4 or 5

months, so let us pitch in and get that done.

Senator INHOFE. Thank you, Senator Warner.

Senator Voinovich?

OPENING STATEMENT OF HON. GEORGE V. VOINOVICH, U.S.

SENATOR FROM THE STATE OF OHIO

Senator VOINOVICH. Mr. Chairman, thank you for holding this

hearing.

As my colleagues on this committee know, I have a strong interest in the Federal work force and fitting the right people with the

right knowledge and skills at the right place and at the right time.

I think Governor Leavitt is the right person with the right knowledge and skills at the right place at the right time.

For a Republican, probably the most difficult job in the Federal

Government is the Administrator of the EPA. No matter what you

do it is not good enough and it is always attacked by some environmental groups. Christine Todd Whitman, our fellow Governor, did

the very best she could but I am sure she was relieved and glad

to leave the battle.

I am grateful the President has asked Mike to serve and that he

is willing to accept and use his extraordinary management and

interpersonal skills to serve his country. I think Senator Hatch did

an outstanding job of enunciating his outstanding leadership in the

environment and his record.

I appreciate his willingness to serve and I thank his wife,

Jacalyn, and her five children for their sacrifice and being willing

20

to allow him to serve in this very, very difficult position in the Federal Government.

I first met Mike when we were both Governors. I was chairman

of the Republican Governors’ Association. I needed a good vice

chairman and he was the young man who came along and I asked

him to do that job. He did an outstanding job. I watched him move

through the National Governors’ Association to being vice chairman

and then chairman of that association.

He has established a very strong reputation as a straight shooting consensus builder with proven ability to work on a bipartisan

basis. On many issues, Mike was willing to take on tough issues

and work with both Republican and Democratic Governors to form

consensus and move the ball down the field. I am glad there is a

statement from Senator Nelson and from Governor Glendening and

I know that Senator Carper is also a strong advocate of your being

here.

When the States were confronted with losing revenue from interstate sales, he took up the cause. No one thought the States could

come together and come up with a system and because of this

man’s leadership, 25 States are participating in a streamlined sales

tax system that provides States with a road map to create simplified sales tax collection programs.

During his three terms as Governor, Mike as demonstrated an

outstanding ability to efficiently and effectively manage the State

of Utah’s provision of public goods and services. It has already been

mentioned that he has been named outstanding manager. He is the

public official of the year. He has the gear to take on the management responsibilities of an agency that has 18,000 people, 10 regional offices and a half dozen research labs throughout the country.

Being head of the EPA is a management job and this man has

proven he is a darned good manager.

I would like to say, Mr. Chairman, we are fortunate that this

man is interested to take this job at this time. I can assure my colleagues on the other side of the aisle, if you want a straight shooter, if you want someone that is honest and willing to work and

willing to listen, you will find it in Mike Leavitt.

[The prepared statement of Senator Voinovich follows:]

STATEMENT OF HON. GEORGE V. VOINOVICH, U.S. SENATOR FROM THE STATE OF

OHIO

Mr. Chairman, I want to thank you for holding this hearing on Governor Leavitt’s

nomination.

As my colleagues here on the committee know, I have more than a passing interest in the people who run our Government. It seems like we can never find the right

people to manage all of the Departments and Agencies in the Federal Government,

which inevitably leads to problems down the road. The process is even more difficult

when trying to find people to nominate for controversial appointments like Federal

judgeships or high-profile cabinet officers.

For a Republican, probably the most difficult job in the Federal Government is

the Administrator of EPA. No matter what you do—it is not good enough and is

always attacked by environmental groups. Christy Todd Whitman did the best she

could, but I am sure she was glad to leave the battle.

I am grateful that President Bush has asked Mike to serve and that he is willing

to accept and use his extraordinary management and interpersonal skills to serve

his country. I appreciate his willingness to serve and want to thank his wife Jacalyn

and five children for the sacrifice they are willing to make for him to serve.

21

I first met Mike while we were both Governors and were active together in the

Republican Governors’ Association and National Governors’ Association. Mike

served as NGA vice-chairman under then-Governor Tom Carper, NGA chairman,

RGA vice-chairman while I was chairman and as RGA chairman.

He has established a very strong reputation as a straight-shooting consensus

builder with the proven ability to work on a bipartisan basis. On many issues, Mike

was willing to take on tough issues and worked with both Republican and Democrat

Governors to form consensus and move the ball down the field. When the States

were confronted with losing revenue from internet sales, he took up the cause. No

one thought that we could do it, but under Mike’s leadership, we now have over 25

States participating in a streamlined sales tax system that provides States with a

roadmap to create simplified State sales tax collection programs.

During his three terms as Governor, Mike has demonstrated an outstanding ability to efficiently and effectively manage the State of Utah’s provision of public goods

and services. Time after time, Governor Leavitt has set an agenda in Utah, and

each time he has rolled up his sleeves, pulled together broad coalitions, reached consensus and gotten results.

Under Mike’s watch, Utah has hosted the Winter Olympics, reduced crime, decreased reliance on welfare, reduced unemployment, and improved education funding and performance—all while the State’s sales, income, and property taxes have

been reduced. In fact, During Mike’s tenure as Governor, Utah has been named the

best-managed State five times. No wonder he was recently named ‘‘Public Official

of the Year’’ by Governing magazine.

I cannot think of anyone who is better suited to lead the EPA. Governor Leavitt

has continuously demonstrated the tremendous interpersonal skills and management experience necessary to run an agency with 18,000 people, 10 Regional Offices

and half-a-dozen labs. He cares deeply about the environment and will pull people

together to get things done.

Mike’s proven ability to facilitate the creation of positive solutions to multiple

problems and interests is exactly what is needed at the EPA’s top post. He has established an impressive track record of producing results; one that I believe will

continue should he be confirmed as Administrator of the Environmental Protection

Agency.

Senator INHOFE. Thank you, Senator.

Senator Wyden?

OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR

FROM THE STATE OF OREGON

Senator WYDEN. Thank you, Mr. Chairman.

Mr. Chairman and colleagues, I believe it is extraordinarily important that our country have an independent, tough voice to guide

environmental policy at the Environmental Protection Agency. The

reason I feel that way is that I believe now too many of our country’s environmental policies are being cooked by political chefs in

the White House kitchen. It seems to me that they brew the

science, they season the regulations and then serve up policies that

cater to a lot of the powerful anti-environmental interests.

What we have today is a situation where into this political cauldron comes a good man, somebody that I have known to be

straightforward and decent and bipartisan. I have been thinking

about this hearing a lot and went back in particular to look at your

work and the work of the Western Governors’ Association. What I

am concerned about today and what I will be asking about is the

very large gap that exists between the bipartisan policies the Western Governors’ Association has supported and what we see at the

Administration. I want to be specific.

The Western Governors’ Association has stressed enforcement of

the environmental laws. Just a few days ago, the EPA Office of Enforcement said that during the past 24 years, only 24 percent of the

facilities that were in major noncompliance with respect to the

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Clean Water Act faced enforcement actions. So the EPA’s own office says on major water violations, there hasn’t been enforcement.

Gap No. 2, the Western Governors’ Association has always

stressed consultation with all the parties and involving the States.

Two examples where the Administration isn’t doing that are on the

question of these closed door negotiations with industrial livestock

firms, behind closed doors they are talking about amnesty from the

Clean Air Act and the Superfund sites.

With respect to consulting the States on the proposed rule to

limit the scope of the Clean Water Act, 39 States objected and said

they weren’t party to that discussion. So no the question of consultation involving States, there is a big gap between the Western

Governors and this Administration.

Finally, throughout the Western Governors’ Association material

on the environment is a commitment to following the law and certainly that hasn’t been done with the Clean Air Act. I was on the

conference committee in 1990 and I can tell you there was absolutely no question that it was the intent of Congress that powerplants, oil refineries and industrial facilities be required to install

pollution controls. So we see again not the commitment to follow

the law.

My time is up but I would wrap up this way. I would note, Mr.

Chairman, that Senator Hatch had close to 20 minutes in terms of

his opening statement.

Senator INHOFE. Sir, that was not an opening statement. That

was an introduction of our witness.

Senator WYDEN. You have always been so fair and I want to take

note of that but I am not convinced we are going to get done here

by noon. I would just like to say that I think given the import of

this nomination for the country, we have a good man here but I

have outlined a number of examples where the bipartisan work he

has been part of in the past hasn’t been followed. I would like us

to take the time today to be thorough, stick to the record as I have,

but make sure we examine these issues.

Senator INHOFE. Thank you, Senator Wyden.

Senator Thomas?

OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR

FROM THE STATE OF WYOMING

Senator THOMAS. Thank you, Mr. Chairman.

Welcome, Governor. We are delighted to have you here. Certainly

a westerner is welcome for me. You clearly understand the unique

differences that do occur in the areas and I am sure recognize

those.

Your background, significant experience and dedication speak

well and make you a well qualified candidate. Your record, I think,

speaks for itself. Your work as co-chair of the Western Regional Air

Partnership and vice chair of the Grand Canyon Visibility Transport Commission should be highlighted.

Though several members I understand have holds on this nominee, we are just now holding a hearing. That doesn’t seem to be

quite right.

At any rate, I think we can move forward. I am surprised a little

to hear some of the criticism of the Administration that has gone

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on. I think they have moved in an environmental direction of trying to include States, trying to include and cooperate with people

on the ground rather than doing all the pronouncements and announcements from here. The fact is, as the chairman pointed out,

the progress has continued under President Bush’s leadership. The

facts are unequivocal.

Today’s environment is cleaner and healthier than it was when

the President took office. According to the most recent report, SO2

emissions from powerplants were 10.2 million tons in 2002, 9 percent lower than 2000, 41 percent lower than in 1980. NOX emissions from powerplants also continued a downward trend. So we

are making some progress and I hope we don’t try to make a political issue out of this and stick a little bit to the facts as to where

we are. The facts are quite different than some of the things we

have heard.

We are delighted to have you here, Governor, and I hope we can

move forward quickly and work together to continue the progress

that is being made.

Senator INHOFE. Thank you, Senator Thomas.

Senator Reid?

OPENING STATEMENT OF HON. HARRY REID, U.S. SENATOR

FROM THE STATE OF NEVADA

Senator REID. Thank you very much, Mr. Chairman.

I have a longstanding relationship with the Leavitt family.

Myron Leavitt, who is a member of the Supreme Court, is a first

cousin of Dixie Leavitt, the Governor’s father. I would like to tell

a brief story here.

When I thought I was an athlete, I went to school at a college

in southern Utah, that is where his father was an insurance salesman. When my wife and I decided we were going to get married

between my sophomore and junior year in college, I went to Mr.

Leavitt and I said I would like to buy an insurance policy and I

want to make sure it covers maternity in case we have a baby. A

couple of years later we had a baby and the insurance policy didn’t

cover maternity. By then I had moved to a different school hundreds of miles away, so I called his father and said, do you remember selling this insurance policy to me and he said yes. I am not

sure he remembered, but I said I bought it because I wanted maternity and it doesn’t have any. He said, did I do that? I said, yes.

He said, well send me the bill. I sent him the bill and he paid

them. I don’t think that happens very often, so I have always had

a great affection for the Leavitt family as a result of that.

Let me say I have talked with the Governor, as I indicated here

we have had a relationship over the years and I have great respect

for him. I said to him, why in the world would you want this job.

I said, I will do anything that I can to help you personally but I

think the record of this Administration environmentally is awful.

I go into detail as to the awfulness of the environmental record

of this Administration.

I would also say it is so unfair what the Administration has done

to me personally and the State of Nevada. Senator Daschle put forward a person by the name of Greg Jasko to be a member of the

Nuclear Regulatory Commission and they have rejected this. SenVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 92385 SENENV1 PsN: SENENV1
24

ator Daschle has not withdrawn it. Dr. Jasko has a Ph.D. in Physics, he has worked as a policy advisor in my office, he has been a

professor at Georgetown, a man eminently qualified to be a member of the Commission, but because he works for me and I assume

because he gave me advice on the nuclear waste issue, they have

rejected him.

I want everyone here to know as much as I care about this man

and as much as I think of his family, before I back off this, they

will have to make some decision on Dr. Jasko or give me some reason why he is morally unfit to be a member of the Nuclear Regulatory Commission.

Again, Governor, you have a lot of guts taking this job because

you are in a big hole to start. I am not sure you have the ability

or anyone has the ability to override the anti-environmental policy

this Administration has set. I hope I am wrong but I personally

wish you the best of luck. The fact you have decided to take this

job in no way is impugning your intelligence.

[Laughter.]

Senator INHOFE. Thank you, Senator Reid.

Senator Murkowski?

OPENING STATEMENT OF HON. LISA MURKOWSKI,

U.S. SENATOR FROM THE STATE OF ALASKA

Senator MURKOWSKI. Thank you, Mr. Chairman.

Governor Leavitt, again, welcome. It is nice to see you this morning.

It is quite apparent from the comments this morning that there

are many questioning why you would want to take on what appears to be a thankless task but I appreciate your willingness to

do so and your public service, your continuation of public service.

My State, like many in the West, has often struggled with the

environmental restrictions sought by, imposed by and maintained

with interest, often with very little knowledge of the conditions

with which we live. I would argue with some of my colleagues

about the environmental record under this Administration. I believe as a country we have made great strides toward improving

our environment and every day we learn better ways to care for

our environment, we have better technology, better research and I

think we are doing a better job.

If we honestly look at where we need to make improvements, we

have to conclude that regulatory reform is badly needed. I commend the Administration for its willingness to look at new approaches to building a better environment rather than just pounding the same tired nails.

Your record on the environmental issues has been stated earlier

and what you have done in Utah is exemplary. There are those

who will find areas to complain about but I think it is important

that we look to the record and what you have demonstrated

through your administration.

I am confident that there will be areas where should you be confirmed as the Administrator of EPA, which I hope you will, that

you will have issues. My State of Alaska has issues with the EPA

now and I am hopeful that what we will get from you is a fair

25

hearing and a recognition and understanding of those issues and

a willingness to work with us on those. That is what I ask of you.

I do intend to offer you my strong support. I think you have demonstrated your abilities and I have confidence you will be able to

continue with those at this level for the country. I again wish you

the best through this process.

Mr. Chairman, I do have additional comments that I would ask

unanimous consent be included for the record.

Senator INHOFE. Without objection.

[The prepared statement of Senator Murkowski follows:]

STATEMENT OF HON. LISA A. MURKOWSKI, U.S. SENATOR FROM THE STATE OF

ALASKA

Thank you Mr. Chairman—and thank you, Governor Leavitt, for being willing to

continue your public service by taking on this difficult and often thankless task. I’m

sure you know that no matter how well you do, you will seldom make anyone completely happy, and will never make everyone happy at once.

Mr. Chairman, my State, like many others in the West, has often struggled with

environmental restrictions sought by, imposed by, and maintained by interests with

very little knowledge of the conditions we live with.

We take our environmental responsibilities very seriously. We care about our environment, and we try very hard to address serious issues with clarity and common

sense. All too often, common sense is lacking when one-size-fits-all solutions are imposed from outside, and based more on fanciful gloom-and doom predictions than

on facts.

The truth is this country has made mammoth strides in improving our environment, and every day we learn new ways to apply research and technology toward

doing an even better job.

This Administration is providing a breath of fresh air—and I mean that both literally and figuratively—when it comes to environmental issues. While improvements can certainly be forced—at great cost—by the threat of heavy-handed government enforcement, they come far more rapidly when they are to the participants’

economic advantage. There is all the difference in the world between making money

and not losing money.

If we look honestly at what works and what doesn’t, we have to conclude that reform of the regulatory process is badly needed. I commend the Administration for

being willing to look at new approaches to building a better environment, rather

than continuing to hammer at the same old nails.

Governor Leavitt’s record on the environmental issues faced by the State of Utah

is exemplary, despite the inevitable complaints by those who have not gotten everything they wanted. His approach to negotiating complex issues has demonstrated

that it is possible to achieve balance—and a reasonable outcome for those involved.

In many respects, we in the West are not alone in seeking that same balance between our nation’s laws and our regional needs—between our responsibility for our

own choices and those who wish to make choices for us.

I am confident that I will not always agree with the positions that Governor

Leavitt may take if he becomes the EPA Administrator. Alaska has a number of

outstanding issues with the EPA.

We have long wished for administrative action to establish Alaska as a separate

EPA region; attempting to administer such a vast area with so few people who have

even seen the issues first-hand is an impossible task.

We would like to move forward on a determination that better defines the extent

of Clean Water Act authority over Alaska’s wetlands. We have over 174 million

acres of land classified as wetlands, more than all the other States combined. Much

of it is neither used for navigation nor connected in any substantive way with other

water bodies, or exists solely because it is underlain by permafrost.

We would like to receive active assistance from the EPA in evaluating the longterm health effects of our reliance on small, diesel-powered utilities.

We would like to receive recognition that temperature inversions due to our climate are the primary reason some of our cities have difficulty attaining compliance

with carbon monoxide rules.

We would like the Agency to work with us on developing a mechanism that will

more effectively deliver grants to Alaska’s many rural Native communities.

There are many other issues between us—far too many to list them all.

26

What I ask for, and what I believe Governor Leavitt will offer, is comprehensive,

impartial and thoughtful consideration.

I plan to offer Governor Leavitt my strong support in this committee, and look

forward to hearing from him on specific issues.

Thank you Mr. Chairman.

Senator INHOFE. Senator Clinton?

OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON,

U.S. SENATOR FROM THE STATE OF NEW YORK

Senator CLINTON. Thank you, Mr. Chairman.

I want to welcome the Governor and Jackie Leavitt. I am delighted that they are here. I think as the Governor has already determined from his consultative process and certainly the comments

already made today, many of us are a little concerned about the

Administration you are attempting to join and the policies that it

has taken toward the environment. Of course you would be responsible for carrying out those policies.

It is not just the policy choices, it is also the way the Administration has gone about them. The litany of requests for information,

some of which Senator Jeffords referred to that were basically ignored and rejected, are lengthy and troubling. So there are a lot

of topics to cover about specific issues but I want to focus in my

brief remarks on the recent EPA Inspector General report about

EPA’s response to the World Trade Center attacks. It is an issue

that illustrates how much Americans rely on the EPA for information about the air they breathe and how this Administration has

undermined EPA’s credibility.

In the last 12 days we marked the 2 year anniversary of the attacks on the World Trade Center and the Pentagon. It brought

back a lot of memories for many of us. It certainly did for me and

I remember very well being there the day after those attacks and

seeing the firefighters and the police officers and others emerging

from that hellish site covered with dust and debris.

I also know how concerned I was starting at that moment about

the health of the people who were working and living in the area

and we turned to our Government for advice and guidance. I was

asked, I asked the EPA, I asked other Government officials, is the

air safe. The EPA told us it was. In successive press releases, Governor Whitman, then Administrator, sought to reassure the people

of New York and America that their air was safe to breathe.

Based on the EPA’s statements, parents sent their children to

school, elderly residents returned to their apartments and unfortunately now we learn from the EPA Inspector General that the

statements were ‘‘not supported by the data available at the time.’’

I recognize and I have said this to Governor Leavitt and I have

said it publicly, that the EPA and everyone else involved was operating under extraordinarily difficult and unprecedented circumstances but I just cannot accept that there seems to have been

a deliberate effort at the direction of the White House to provide

unwarranted reassurances to New Yorkers about whether their air

was safe to breathe.

According to the Inspector General, ‘‘EPA’s early statement that

the air was safe to breathe was incomplete in that it lacked necessary qualifications and thus was not supported by the data available at the time. CEQ, the Council on Environmental Quality, and

27

the White House influenced the final message in the EPA’s air

quality statements.’’ Mr. Chairman, I will ask unanimous consent for two more minutes.

Senator INHOFE. It would be deducted from your next 5-minute

round if that is acceptable.

Senator CLINTON. That is acceptable.

The Inspector General went on to say, ‘‘Based on the documentation we reviewed and our discussions with numerous environmental experts both within and outside of EPA, we do not agree

that the agency’s statement on September 18, 2001 that the air

was safe to breathe reflected the agency’s best professional advice.

In contrast, based on the circumstances, it appeared that EPA’s

best professional advice was overruled when relaying information

to the public in the weeks immediately following the disaster. The

White House Council on Environmental Quality influenced through

the collaboration process the information that EPA communicated

to the public through its early press releases when it convinced

EPA to add reassuring statements and to delete cautionary ones.’’ Mr. Chairman, these revelations are outrageous but they are

part of a pattern. If this were the only example, it could perhaps

be looked at as unfortunate but understandable but it cannot be

isolated. Time and time again, when we ask for information and we

do not get it or when we get information which experts clearly say

and even lay people understand is not accurate, that undermines

the credibility that we should be able to have in our Government,

particularly about such important matters.

I would ask that my full statement be submitted to the record.

I would also ask that a statement by EPA workers who perform

health and environmental protection duties in expressing their

anger and dismay over the White House’s improper actions also be

included in the record.

Senator INHOFE. Without objection, so ordered.

[The prepared statement of Senator Clinton follows:]

STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR FROM THE STATE OF

NEW YORK

Thank you, Mr. Chairman. I want to join my colleagues in welcoming Governor

Leavitt, his wife and his family to the committee.

I also want to welcome a New York constituent who is especially concerned about

the environment and air quality issues. Catherine McVay Hughes is a NYC downtown resident, who lives with her two young boys and husband one block east of

the World Trade Center. I thank her for her work on these issues, and for being

here today.

This is an extremely important hearing on the President’s nominee to head the

Environmental Protection Agency. In that capacity, Governor Leavitt would be responsible for carrying out the EPA’s mission to protect human health and safeguard

the natural environment air, water and land-upon which life depends.

There are many issues I am concerned about, and that I would like to discuss this

morning. I am dismayed by the environmental policy choices that this Administration has made, and their impacts on the health of New Yorkers and its special

places, from the Great Lakes to the Adirondacks to the Long Island Sound. Just to

give one example, the Administration’s recent decision to eviscerate the Clean Air

Act New Source Review provisions will mean more acid rain in the Adirondacks and

more asthma in New York City.

And it’s not just the decisions the Administration has made, it’s the way that they

have made them. The Administration has not played it straight in pursuing its environmental policies. I won’t repeat the litany of outstanding information requests

from members of this committee, as Senator Jeffords has already discussed this

28

matter in detail. But the fact is that the Administration has stonewalled Congress

and the public time and time again by refusing to provide full and complete information.

So there are a lot of topics to cover, Mr. Chairman. And I regret the fact that

I cannot cover them here today with Governor Leavitt. But questions raised by a

recent EPA Inspector General report about EPA’s response to the World Trade Center attacks compel me to focus on that issue. It’s an issue that illustrates how much

Americans rely on the EPA for information about the air they breathe and how this

Administration has undermined EPA’s credibility in that regard.

Just 12 days ago, we marked the 2 year anniversary of the horrific terrorist attacks on the World Trade Center and the Pentagon. It brought back memories and

emotions for the victim’s families, for New Yorkers, and I think for all Americans.

I know it did for me.

I remember so well being there the day after the attacks, and seeing the firefighters emerging from the haze that hung over the site, covered in dust and debris;

the rescue workers, whom all of us saw, and many of whom I have met, who guided

people to safety without a mask or a bit of concern about their own long-term

health. I am sure that Americans remember—and New Yorkers have lived with—

the apartment buildings, the business buildings that were covered in gray dust.

When we turned to our Government in Washington for guidance in the hours,

days, and weeks after that tragedy, one of the questions I was asked and the EPA

was asked, the White House was asked, and the city and the State were asked was:

Is the air safe?

What did the EPA tell us? The EPA said: Yes, it is safe. Go back to work, get

back to your daily lives. Based on the EPA’s statements, parents sent their children

to school in the area and elderly residents returned to their apartments. But, unfortunately, the EPA Inspector General now tells us that EPA’s statements were,

quote, ‘‘not supported by the data available at the time.’’

Now, I recognize that EPA and everyone else involved were operating under unprecedented and extremely difficult circumstances. But I simply cannot accept what

appears to have been a deliberate effort to provide unwarranted reassurances-apparently at the direction of the White House-to New Yorkers about whether their air

was safe to breathe. And that’s precisely what is stated in the August 26 Inspector

General Report entitled ‘‘EPA’s Response to the World Trade Center Collapse.’’

According to the EPA Inspector General, quote:

‘‘EPA’s early statement that the air was safe to breathe was incomplete in that

it lacked necessary qualifications and thus was not supported by the data available

at the time. CEQ influenced the final message in EPA’s air quality statements. ‘‘

The IG went on to say that,

‘‘Based on the documentation we reviewed and our discussions with numerous environmental experts, both within and outside of EPA, we do not agree that the

Agency’s statement on September 18, 2001 that the air was safe to breathe reflected the Agency’s best professional advice. In contrast, based on the circumstances outlined in Chapter 2 of the report, it appeared that EPA’s best professional advice was overruled when relaying information to the public in the

weeks immediately following the disaster.’’

Mr. Chairman these revelations are outrageous. After reviewing the report carefully, I immediately wrote to President Bush, along with Senator Lieberman. In our

letter, we asked for an explanation of White House interference in EPA’s public

statements about air quality in lower Manhattan. In addition, we asked the President to implement several of the IG’s recommendations for ensuring that indoor air

quality concerns have been properly addressed.

I would have thought that the White House would be outraged by these findings

as well, and would want to get to the bottom of this and respond quickly. But that

hasn’t happened. We received a written response, not from the White House, but

from Marianne Horinko, the Acting Administrator of the EPA. Unfortunately, Ms.

Horinko’s letter did not address our concerns. So Senator Lieberman and I sent a

letter to the President reiterating our requests. We are still waiting for a reply.

The only response from the White House so far has been to suggest that national

security interests justified their interference in EPA’s statements. This is a canard.

To say that national security somehow justifies telling people the air is safe when

it is not is to essentially will engender distrust such that when people need their

government most, they will trust them least.

This issue clouds the EPA’s integrity. My constituents want and deserve a

straight answer as to how and why they were misinformed, and until they get an

answer, they and others will distrust the EPA’s announcements. And with the

29

White House’s lack of an interest in simply providing answers, who can blame

them?

That is why I decided to delay full Senate action on Governor Leavitt’s nomination until the White House adequately responds to my concerns.

Mr. Chairman, I want to be clear that this does not reflect any judgment about

Governor Leavitt’s fitness to be EPA Administrator, as I expressed to him in our

private meeting. I will evaluate Governor Leavitt’s nomination based on his record

and the responses that he provides to the questions that I ask him today and submit for his written response. But given the importance of this issue to my constituents, and the Administration’s reluctance to be forthcoming to date, I feel that I

have no choice but to hold Governor Leavitt’s nomination until this issue is resolved.

Senator INHOFE. Senator Crapo?

OPENING STATEMENT OF HON. MICHAEL D. CRAPO,

U.S. SENATOR FROM THE STATE OF IDAHO

Senator CRAPO. Thank you, Mr. Chairman.

Governor Leavitt, we welcome you here today.

I want to join with my colleagues who thank you for having the

courage to step forward and take on this important responsibility.

When it was first announced that you would be the President’s

nominee, one of the reporters in the country asked me if I thought

your nomination or your confirmation hearings would be contentious. I said, well there is certainly nothing in Governor Leavitt’s

background or record that would lead to any justification for a contentious nomination hearing but I suspect that there may be some

effort to try to use these hearings as a forum in which to attack

the President and his environmental policies. I think we are seeing

that come forward today.

You are to be thanked for your courage in stepping into this

arena. Although there will be differences between us about how the

President has done on the environment and those differences will

be aired in this hearing and in other forums, the fact is that the

one bottom line we all share is we all seek to advance the best interests of the environment and we seek to make certain that we

do what America leads this world in, that is facing up to environmental issues and dealing with them.

There are differences of opinion about how we should deal with

the environment. One of the strengths I believe you bring to this

office is the fact that you are so committed to the collaborative

process. You not only have shown the leadership but you have

shown the creativity to come forward and bring people with competing ideas together. One of the great strengths of our society is

the fact that our system of government allows for the conflict of

ideas. As those ideas come into conflict and as people debate them,

true leaders help resolve good public policy through a collaborative

process that helps bring forward the kind of decisionmaking that

everyone can buy into, that we can get out of the partisanship with

and get on with good public policy. That is what I believe is the

strongest thing you bring to this Administration and to this issue.

Because of that, again I want to thank you for your courage in

stepping forward at a time when you knew we were moving into

a Presidential election cycle, you knew the issues into which you

were stepping were issues with which you had no part in creating

but with which you were going to have to deal. You are seeing the

beginning of that today.

30

Again, I thank you for stepping forward to take part in this process and to use your leadership and your skills to help us address

these issues for our Nation. I thank you for the courage you have

shown in helping us to find another great leader who will step forward and help bring people together at a time when there is so

much that would tend to divide us.

Thank you.

Senator INHOFE. Thank you, Senator Crapo.

Senator Baucus?

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

FROM THE STATE OF MONTANA

Senator BAUCUS. Thank you, Mr. Chairman.

Welcome, Governor. Good luck.

It is interesting to hear how many members of this committee

asked you the same question I asked, namely why in the world do

you want this job which must say something. You have a real

tough job ahead of you.

I very much appreciate your willingness to take this on. I appreciate you as a westerner and that you understand western issues

which is so important to so many of us but, again, you have a

tough job. You will be I think the ninth Administrator since 1970.

William Ruckleshaus began in December 1970, Russell Train, Doug

Cousel, Ann Gorsuch, Bill Ruckleshaus came back again, Lee

Thomas, Bill Riley, Carol Browner, Christine Whitman and you.

On that list are some great people who when you think of them

know that they stood up for good, solid and proper balanced protection of the environment. I can’t say the same for everyone on that

list but I certainly can for some.

One of the challenges you face is to be one of the great ones and

that is going to be so difficult as I know you know because working

in Washington, DC. as an EPA Administrator is not the same as

being Governor of Utah. I have seen many Governors come to

Washington, DC. and think they can ‘‘run this town the same way

they ran their States.’’ You can’t do it. It is a whole different ball

game. The dynamics are so totally different. There are so many

longer knives in Washington, DC. compared with your capital city

in your home State. It is just different and not in the best sense

of the term in a lot of cases.

It is also different because you are no longer in charge, you are

working for somebody. You are no longer the top person, you are

kind of someplace else in the pecking order in the Administration.

That is a huge challenge because I agree with all the statements

made about you, your collaborative nature, you work together, your

salt and so forth but that works for somebody who is in charge. It

is a little harder for somebody who is not in charge. You may be

in charge of managing the EPA but you are not in charge of policy,

somebody else is. You have influence but you are not going to be

in charge.

That means you have to fight like the dickens internally within

the Administration to get what you think is right for the environment. Then you can be working with people, environmental side

and the business side to try to iron out the cracked implementation

of that policy.

31

There is a reason why Christine Todd Whitman left. She was not

in charge, she was told what to do, she very graciously left but we

all know why she left.

Senator INHOFE. Senator, I am going to ask you if you would

please dispense with your remarks at this time.

Senator BAUCUS. Mr. Chairman, I have one more minute and I

think it is only fair.

Senator INHOFE. To be deducted from your time.

Senator BAUCUS. You can deduct it. I think it is only fair.

Senator INHOFE. You are recognized.

Senator BAUCUS. Thank you.

Another issue I want to talk about as we did privately is Libby,

Montana. I have a long statement here about Libby, I talked with

you privately about Libby. Only 10 percent of the cleanup has been

accomplished so far in Libby. Carol Browner and Christine Whitman both were great about coming to Libby. We had a wonderful

person there named Paul Peranaud, EPA’s man on the spot who

had the utmost confidence of the people in Libby.

There is a great sense now in Libby, Montana, the community

is infected with asbestos related diseases on account of W.R.

Grace’s asbestos contamination, that the momentum of the cleanup

is losing steam. So I ask you to dedicate your efforts if you could

please and focus on Libby because those people in Libby need it so

much.

I also mentioned in your conversation that Milltown, Montana

needs a lot of help.

Thank you.

[The prepared statement of Senator Baucus follows:]

STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE STATE OF MONTANA

Mr. Chairman, Senator Jeffords, thank-you for calling this hearing today to consider the nomination of Michael Leavitt to be Administrator of the Environmental

Protection Agency.

This is an important nomination, to an Agency that should set the gold standard

for protecting the public’s health and their environment. Lately, the EPA has struggled to set that standard, reaching a low point when former Administrator Christie

Whitman stepped down early this summer. I believe Ms. Whitman tried hard to be

faithful to the mission of the EPA; she certainly always responded well to requests

I made of her for my constituents in Montana.

But, I don’t think that Ms. Whitman received the support she needed and deserved from the Administration. I admire and respect her decision to step down.

Which is why I’ve told Mr. Leavitt that I’m not quite sure why he wants this job.

But, I take him at his word that he will stand firm and honor the commitments

he makes on behalf of the EPA, to me, to this committee or to the American people.

The EPA needs someone to restore trust and accountability to the Agency.

The Chairman has asked us to keep our remarks brief, so I will turn to the issue

that means the most to me, and that is protecting the people of Libby, Montana.

Mr. Chairman, Governor Leavitt—people are dying in Libby. Hundreds have already died. In fact, more than 300 people are buried in Libby alone, their deaths

all related to asbestos exposure that resulted from the vermiculite mining activities

of WR Grace.

The EPA finally came to Libby about 3 years ago. Since that time, a tremendous

amount of Federal resources have poured into Libby, to start cleaning up WR

Grace’s mess and to screen residents for asbestos-related disease.

The results of these efforts have been staggering—asbestos was and still is everywhere in Libby, in homes, gardens, driveways, even in the high school track. Additionally, the Agency for Toxic Substances and Disease Registry has found that people from Libby suffer from asbestos related disease at a rate that is 40–60 times

the national average. They suffer from a rare asbestos-caused cancer, mesothelioma

(MEE-SO-THEE-LEE-OMA), at a rate 100 times the national average.

32

Even though we are 3 years into EPA’s clean-up of Libby, only 10 percent of the

total amount of clean-up work has been completed.

Last year, Marianne Horinko testified before this committee and promised me

EPA would clean-up the town of Libby in 2 years, in 2004. Now, EPA tells me it

will be closer to 5 years, maybe by 2008.

This greatly concerns me. This town is sitting on a pile of asbestos. The residents

of this town were exposed to high levels of asbestos for years. Many of them, as I

have already pointed out, are dead. Libby must remain a top, top priority for EPA,

for funding, for staff, for resources.

The Libby project should be a prime example that EPA can point to on how

Superfund protects Americans.

The investment of millions of Federal dollars in Libby, Montana—nearly $90 million to date—merits careful follow-up and focus. This project was started well; it deserves to be finished well. We can’t lose focus now.

Ever since Whitman stepped down, and the onsite coordinator, Paul Peronard,

was transferred out of Libby, folks in Libby tell my staff that EPA’s attitude has

shifted. EPA staff appear over-worked, and tired, lacking adequate support from Region 8 and headquarters. We have heard of dozens of examples of EPA staff acting

in a less than professional manner with Libby residents. Libby, and the EPA, deserve better.

Mr. Leavitt—I ask for your commitment today to make a Libby a top priority for

EPA and for you personally if you are confirmed as Administrator. That means

maintaining momentum and focus on the clean-up work until the town has a clean

bill of health sooner rather than later.

I also ask you to come to Montana, and to commit to meeting with EPA folks on

the ground and with members of the Libby community to better understand what

is needed in Libby to get the job done.

The people of Libby have suffered enough. It’s our responsibility to take that town

off the National Priorities List as soon as possible.

Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator Baucus.

May I just remind my fellow Senators the reason we are having

time restrictions is to respect the time of the other members and

we are trying to do that. You will have ample time to make any

remarks you want as this hearing progresses.

Senator Allard?

OPENING STATEMENT OF HON. WAYNE ALLARD,

U.S. SENATOR FROM THE STATE OF COLORADO

Senator ALLARD. Mr. Chairman, thank you, and I appreciate

your recognizing that some of us have rights too as far as free

speech is concerned.

I just want to compliment you, Governor, because you are stepping forward at a time that is going to be very difficult. Obviously

the issues before the EPA are difficult but this is an election year.

There are obviously members on this committee and members in

the Congress who will try and say that the environment is a partisan issue. In reality, the environment is not a partisan issue. I

can point to sites in the State of Colorado where their cleanup was

opposed by a Democratic Administration, right in the middle of

Denver. I can also point to sites in Colorado that are being cleaned

up ahead of schedule and under budget because of this Administration. So I don’t think that the environment should be a partisan

issue. We can point to instances on both sides with both Administrations.

I think you are the kind of leader that we need in this position

and I admire you for your courage and willingness to step forward.

I think you recognize that local interests can also have the best solution for the environment and that all the decisions shouldn’t be

driven out of Washington.

33

I think you also recognize that there is a balance between private

property rights and that is not a radical idea. Private property is

protected in the Constitution. There are some issues that are specific to the western part of the United States and they have to be

dealt with in a different way in order to protect the environment

than on the East Coast. I think you understand that delicate balance from our conversation. No two ecosystems are the same. Ecosystems have to be managed differently in order to protect the environment within those ecosystems. I also think you understand

how important it is that we apply good science as we are dealing

with the environment.

Again, I want to thank you for being willing to take on this job

and it is going to be difficult but I hope we can avoid some of the

partisan efforts that seem to be happening to make this a Republican versus Democrat issue. We are all concerned about the environment.

Mr. Chairman, I ask unanimous consent that my full statement

be made a part of the record.

Senator INHOFE. Without objection, so ordered.

[The prepared statement of Senator Allard follows:]

STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM THE STATE OF COLORADO

Thank you, Mr. Chairman, for convening this hearing in a timely manner. The

confirmation of the President’s nomination must be a top priority for this committee

and the Senate. As we begin this hearing, I challenge my colleagues to focus on the

results and achievements of our national environmental policy and not on penalties

and politics. Our national environmental regulatory structure, abundant environmental mandates and administrative and judicial rulings, work together to protect

our most precious resources, and have helped spur environmental recovery in many

areas. But these same layers of laws have also created tremendous burdens for municipalities, businesses and the ongoing development and maintenance of our public

infrastructure. We cannot simply wipe the slate clean and sweep away basic environmental rules; but we can—we must—develop an environmental agenda that protects private property rights while balancing environmental achievement with the

need for continued economic progress.

Governor Leavitt hails from the western United States. No other geographic region in the country has felt the heavy hand of regulation more than the public land

States of the west—be it in the form of forthcoming EPA mercury standards or the

Department of the Interior’s Endangered Species Act. Governor Leavitt understands

the complicated web of environmental rules and the impact that they have on health

and property. As a Governor, he has worked hard to increase the well-being of the

people in his State, and he has worked diligently to improve the State of the environment. Governor Leavitt understands the fundamental need to protect the environment from irresponsible actors. Just as important, though, he understands the

need to protect the environment through policies and programs that generate results and that create incentives to improve land, water and air quality. He also

knows that heavy handed action is not nearly as important as the results that can

be achieved through cooperation and collaboration. The development of such Enlibra

principles have received a bipartisan endorsement from the National Governor’s Association and deserve a great deal of attention.

As we begin deliberations on the nomination today, we do so in an environment

that has improved greatly over the past several decades. In the last 30 years water

quality has improved and emissions of the six principle air pollutants have been cut

48 percent. This progress comes even as the country has experienced a 164 percent

increase in gross domestic product, a 42 percent increase in energy consumption and

a 155 percent increase in vehicle miles traveled. This improvement has occurred

over the course of thirty-four years, 22 of which came under the leadership of Republican Administrations. Echoing the other members of the committee, our nation

lives today in a cleaner, healthier environment, far more clean than it was when

President Bush first took office. As mentioned, the most recent EPA data shows

that, SO2 emissions from power plants were 10.2 million tons in 2002, 9 percent

lower than in 2000 and 41 percent lower than 1980. NOx emissions from power

34

plants are also lower, measuring 4.5 million tons in 2002. This is a 13 percent reduction from 2000 and a 33 percent decline from 1990 emissions levels. The Bush

Administration’s environmental success will continue under Leavitt. Under his leadership, Utah now meets all Federal air quality standards. Seventy-three percent of

Utah’s streams currently meet Federal water quality standards, compared to 59 percent 10 years ago. This is a remarkable improvement since Governor Leavitt took

office. In Colorado, the Bush Administration’s efforts to clean-up the Shattuck and

Vasquez Boulevard sites deserve many thanks. The Administration continues to

prove its commitment to the people of Colorado through responsible stewardship

and active protection.

The evolution of environmental rules and regulations that control so many aspects

of life must be realistic goals that are established through a course of open deliberation and sound science. The impact EPA has on individual lives is real, not fictitious. New laws and enforcement decisions cannot be taken lightly. I am pleased

that President Bush’s approach has been one of reform—changing command-andcontrol mandates to innovative, market-based approaches that utilize cutting edge

technology to bolster environmental benefits. I hope this type of strong, principled

leadership will continue into the future, and challenge the new nominee to further

these efforts.

Governor Leavitt carries all the necessary credentials to oversee our nation’s environment. He has not backed away from major issues and has been a proactive leader on many issues. Not only is he the nation’s longest serving Governor, he has experience as chair of the National Governor’s Association, the Western Governor’s Association—where he oversaw the Western Regional Air Partnership—and the Republican Governor’s Association.

Yet despite all these accomplishments, there is still room for progress. Senator

Crapo and I have introduced legislation that would establish an independent office

of the EPA ombudsman. This important position was critical to the successful removal of waste from the Shattuck Superfund site in Colorado. The legislation has

already passed the Senate and I look forward to working with members of the

House and the Administration on its enactment into law. I also believe that the

President’s Clear Skies Initiative sets a strong tone for positive results. According

to EPA figures, the proposal will reduce SO2 emissions by an additional 70 percent

by 2018. I want to caution, though, that the Clear Skies proposal must be formulated in a way that does not bring about arbitrary change at the expense of western

States’ interests.

The commitment President Bush has made to improving the environment is

strong, clear and unquestionable. I look forward to working with members of this

committee and the Administration as we work toward confirmation of this nominee.

Senator INHOFE. Senator Boxer?

OPENING STATEMENT OF HON. BARBARA BOXER,

U.S. SENATOR FROM THE STATE OF CALIFORNIA

Senator BOXER. Thank you very much, Mr. Chairman.

I want the record to show that I think taking time away from

colleagues if they go over for a minute, colleagues who have served

here for many years, I don’t think it serves the public interest. It

is just my opinion and obviously you are the chair and you can

choose to do that.

I just want to say I had a very good meeting with the Governor.

We spoke for about 45 minutes and he knows how concerned I am

about the direction of this Administration. We didn’t pull any

punches with each other and I so appreciated his candor at that

meeting.

Clearly objective voices will decide if this Administration is moving forward on the environment or is taking us back. Clearly today

we have two distinct views. Republicans feel we are moving forward, we are doing great and the Democrats don’t seem to share

that.

As for me, I am not going to make a statement full of hyperbole,

I am going to go in my questions with the exact rollbacks. I have

50 rollbacks, Governor, that this Administration has undertaken

35

and their relatively short time. Overall, there have been 300

rollbacks of environmental protection. I guess you are fortunate it

is only 50 in your EPA, but it is very, very serious.

For me, it is critical that the EPA Administrator, whether she or

he is sitting in a Republican Administration or a Democratic Administration and I mentioned this to you, will go to that Cabinet

meeting and will sit in that chair and as Senator Baucus says, will

fight for the environment. We are not going to go over those now

but will wait for the questions.

When you sit around that table, I would hope you would see your

role not as a Governor or a Senator. We have to balance a lot of

different issues. You are there to fight for the environment. It is

the Environmental Protection Agency. It is not the Environmental

Pollution Agency, it is the Environmental Protection Agency. So to

me that is the most important thing I want to hear from you today,

is that sitting around that table you will be an environmental advocate, because I believe that is exactly what your job is. The President, he is going to take everybody’s views. You are going to have

OMB objecting, you are going to have other people objecting, you

might have Commerce objecting, but I want to know how you view

your role, and I will ask you about that. I am also going to, as I

told you when I met, in addition to those things, ask you about

your own record in Utah, which I see as being pluses and minuses.

But there were three things that concerned me, and I want to explore them with you when I get a chance. One is there are newspapers articles that staff was retaliated against after they made

recommended changes in endangered species protection. So I want

to get your side of that. I will tell you the reason. I am very concerned in this EPA. I have a lot of whistle-blowers calling my office. They are told not to talk to anybody, not to talk to the press.

I don’t think that is good for the Country. So I want to ask you

about that. Also, lacks clean water enforcement. A recent EPA report on clean water enforcement you were tied for last place with

Ohio and Tennessee. I want to ask you about that. And, last, allowing Utah’s power plants to increase their emissions of nitrogen

oxide. Between 1995 and 2002, the rest of the Country reduced by

21 percent, and your emissions went up. So I will ask you about

the rollbacks, the record there, and, in general, your feeling about

the job.

Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator Boxer.

Well, Governor Leavitt, at this time we will recognize you for

your opening statement. We would like to have you know that we

will submit your entire statement for the record, but ask you to try

to confine your remarks to 5 minutes.

STATEMENT OF HON. MICHAEL O. LEAVITT, NOMINATED BY

THE PRESIDENT TO BE ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

Governor LEAVITT. Senator, thank you, and thank you all for the

graciousness with which I have been received over the course of the

last weeks. In keeping with the spirit and letter of the chairman’s

request, I will ask that my full statement be submitted, and I will

simply make five points.

36

First, I have in fact answered the President’s call, and he has

asked that I be the Administrator of the Environmental Protection

Agency, and today I begin a road of seeking the confirmation of

this Senate. Many of you have asked why. The answer to that is

simple. I do so because I passionately believe that this Nation deserves to have a clean and safe and a healthy environment. And

I also believe that the United States can increase the velocity of

our environmental progress, and that we can do it without compromising our competitive position economically in the world.

The second point I would make, Mr. Chairman, is that for 11

years I have served as Governor of Utah. I have not had the luxury

of being able to do so in isolation. As Senator Jeffords pointed out,

one of my responsibilities has been to ensure a proper education for

the children of our state. Another has been to nurture those who

have been in need. Still another has been to provide economic leadership, helping to ensure that there is quality jobs for state residents. And, while I recognize that if I am confirmed as the Administrator, I will have the luxury of working full-time to protect the

environment, I also recognize that I still won’t be able to do it in

isolation.

The third point is that I view myself as a problem-solver by nature. That is where I find satisfaction, and over time I have had

substantial experience in dealing with large, complex environmental issues, and I have found with experience that the solutions

to those problems are found in the productive middle; rarely are

they found at the extremes. That experience of working through

those problems has caused me to form and have nurtured in me,

or at least crystallized in me a very clear environmental philosophy. Former Governor Kitzhaber, a Democratic colleague from the

State of Oregon, and I shared many thoughts about this. We ultimately concluded that we needed to give that philosophy a name.

We coined the phrase ‘‘en libra.’’ It is a Latin word, two syllables: ‘‘en,’’ to move toward; and ‘‘libra,’’ balance; to move toward balance.

You will see that reflected today in our interactions.

Last, while this committee hearing is about my fitness to serve

as the Administrator of the Environmental Protection Agency, it is

clear to me that there are disagreements that will play out in our

conversation, and I want to be as forthcoming as I can, and want

to contribute in every way I can to that conversation. Obviously,

there will be limits when we start reflecting on things that have

happened in the past and things that could happen in the future.

But I do believe one thing that would be most helpful would be for

me to give you a clear view how I see my relationship with the

President. Perhaps I can best do it by reflecting on my own experience as Governor.

For the last 11 years I have served with an able cabinet, and

with each one of those members of the cabinet I have had a conversation. I want you to know that the President of the United

States has my full respect, and he has my complete loyalty. None

of you would expect less of me than that. When I met with my cabinet members, I told them that this is the way I defined loyalty.

First, I expect them to run the department over which they have

been appointed. Ninety-nine percent of the things that come

through that department I, as Governor, will never see. And I exVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 92385 SENENV1 PsN: SENENV1
37

pect them to keep the law, and I expect them to do all they can

to manage the department according to the policies that I have laid

out. Second, I expect them to be wise enough to know when a matter needs to be elevated, when it begins to reflect on other parts

of society other than the jurisdiction that they immediately have.

Third, when those are elevated, I expect them to tell me exactly the

way they feel; sometimes publicly, other times privately. And, last,

I expect them to understand that I am the one who was elected as

Governor, and there are times when those decisions have to be

made by me. And I expect that is precisely the same relationship

I will have with the President of the United States; I will run the

Department, he will know where I stand, and I will give this all

I have.

Senator INHOFE. Thank you, Governor Leavitt.

We will start our series of 5-minutes questions. I apologize to

some who have arrived late. We are trying to stay on schedule and

you will have time to make your statement during question time.

There are two required questions I would like to ask you at this

time. Are you willing to appear at the request of any duly constituted committee of Congress as a witness?

Governor LEAVITT. Mr. Chairman, I am.

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

may not have thus far disclosed that might place you in any conflict of interest if you are confirmed to this position?

Governor LEAVITT. I know of none.

Senator INHOFE. Thank you very much.

I would like, since I cut you off there, you can use any of my 5

minutes to conclude your opening statement, if you weren’t quite

through.

Governor LEAVITT. Well, Senator, I would only add this. I recognize that the first obligation I would have, if confirmed by the Senate, would be to gain the trust and the confidence of the nearly

18,000 people who work at the Environmental Protection Agency.

By my experience, these are dedicated, able people. And I would

tell this committee, the full Senate, the American people, and those

at the Environmental Protection Agency that I would give this my

full energy.

Senator INHOFE. I have no doubt to that.

Governor Leavitt, I would just ask one question, then we will go

on to the other Senators. When I became chairman of this committee, I said that we wanted to do three things. The first one was

to use good, sound, objective science. Quite often, Governor, there

are competing sciences, and there are certainly some that are recognized higher above others, National Academy of Sciences and so

forth. I would like to know how you are going to address the

science, as these decisions come along, in carrying out the duties

to this office.

Governor LEAVITT. Senator, I reflected earlier that many years of

dealing with complex, large-scale environmental problems has crystallized in me a philosophy. One of the tenets of that philosophy

is science for facts, process for priorities. What I mean by that is

that very early in my time working with environmental problems

people would say to me, but the science says this, and I realized

over time that there are, at moments, competing science. And as

38

I began to dig deeper in the science, I became knowledgeable that

many times there were human assumptions made in the creation

of science, and that it was my obligation as a policymaker to understand what was behind the science and to understand the human

judgments that had been made. I absolutely believe that the best

science, the best science ought to be utilized. But we have to have

disciplined process, then, to understand what is behind the science

and what the policy implications are so we know which science is

best and what the implications are.

Senator INHOFE. Thank you, Governor.

I will recognize the Senators in the order using the same early

bird order. I would observe, however, in my opening statement I

mentioned that most of the discussion in opening statements really

had nothing to do with Governor Leavitt. And if we will confine our

questions to Governor Leavitt and his positions, and things that

you want to inquire about him, I am sure that we will have ample

time to do it. I would second say that we are going to have a vote

at 10:45. It is the decision of this chair to go ahead and continue

the questions throughout that vote. I will start out by voting, coming back; perhaps, Senator Voinovich, you can chair when I am

gone. We will vote in shifts, if that is all right.

Senator Jeffords, you are recognized for your 5 minutes.

Senator JEFFORDS. Thank you, Mr. Chairman. These are most

important matters, and members on both side deserve ample time

to make their remarks and ask questions, and I laid the whole

afternoon before me for that purpose, so I would hope that we do

give that opportunity to the members. Also, some members couldn’t

be here. Senator Lieberman also would have submitted questions

to be answered, and I assume those will be answered.

Senator INHOFE. I am sure they will. We announce at the very

first, questions for the record from those who were not able to attend would be fine.

Senator JEFFORDS. Chairman, I ask unanimous consent the prehearing questions that are received and provided, rather, to Governor Leavitt on September 5th, 2003, be inserted into hearing

record and that the record be held open, as is our usual course of

business, until these questions are answered.

Senator INHOFE. Is there objection? Hearing none, so ordered.

Senator JEFFORDS. I would like my colleagues to understand the

importance of these questions, as well as the importance of the full

exchange of information with Governor Leavitt. I intend to obtain

and review these answers prior to the markup of Governor

Leavitt’s nomination in the committee.

Governor, the Bush Administration does not have a good record

of sharing information with this committee, not during my chairmanship and not while I have been Ranking Minority Member.

Last week I provided you with a substantial list of outstanding unanswered or inadequately answered requests that I and members

of the committee have made over the last 2 years. It is a long list,

and that is a long time. Do I have your commitment to endeavor

to provide this information to me prior to your confirmation? And

if you could give me some guidance on how much time that might

take, if you know, I would appreciate it. And I would look more favorably on your confirmation if these questions are answered.

39

Governor LEAVITT. Senator, as you can appreciate, I don’t have

access to any of the information that you talked about in the past.

I would like to reflect that it would be my desire to have a very

straightforward, candid, and open relationship with you, as we

talked during our private meeting. I fully also acknowledge that

there are historic tensions that exist between administrations and

the Congress, and I don’t fully understand all of the dynamics of

this, but I want you to know that I will do all I can to make certain

that I am responsive to you. With respect to your questions, I am

anxious to answer those and make certain that they are responded

to in a way that will provide you with what information you need

to know what goes inside my head and also my heart.

Senator JEFFORDS. I appreciate that answer. Governor, the White

House recently rushed to issue a second final rule to eliminate the

New Source Review program. Taken together, these new rules will

allow at least 7,000, if not all, major sources of pollution to increase

harmful emissions above today’s levels without requiring modern

controls. This last rule, done just before Labor Day, allows 120 or

so of the oldest, least efficient, and dirtiest power plants to avoid

modern controls forever. According to EPA and Abbott Associates,

that means at least 20,000 people will continue dying prematurely

each year. Your State and your director in Utah and the Bipartisan

Group of Northeastern Governors had said these rules make NSR

worse, and EPA hasn’t shown the benefits for polluters justify the

cost to public health, as they must under the major rules.

No. 1, Acting Administrator Renko has said that the latest NSR

rule will increase reliability without affecting emissions, and Assistant Holmes has stated that emissions at some facilities will increase. If you become Administrator, will you agree to collect information on these rules to find out who is telling the truth and share

it with the committee?

Governor LEAVITT. Mr. Chairman, my objective, if I am confirmed, is to have the air cleaner when I am finished than when

I start. I have watched this New Source Review issue unfold, and

I have done my best to understand the dynamics of it. I have spoken extensively with State regulators who use the phrase the puzzle book; it is the five three-ring binders that contain the regulations necessary to decide if a plant is subject to New Source Review. On the other hand, I have heard others speak of the problem

with these legacy plants and the need to find the way to do it. Now,

my own air director, as you indicated, was asked for input and provided them with input, which I am happy to say, for the most part,

in fact, entirely was adopted as part of those conclusions. My objective is to make certain that we are upgrading wherever possible.

We will administer the rule, I will do everything I can to clean the

air, and look forward to cooperating with you in whatever way I

can to make that happen.

Senator JEFFORDS. I appreciate that answer, because I can’t tell

you how frustrated I am. We continuously ask for answers and we

get nothing.

Senator INHOFE. We will have several other rounds, but your

time has expired.

Senator Voinovich?

40

Senator VOINOVICH. I have often stated that we need to harmonize our environmental policy and our energy policy. In fact, I

believe these two issues are merely two sides of the same coin. We

cannot have a healthy sustained economy without a healthy environment, and we cannot afford to invest in new environmentally

friendly technologies in an unhealthy economy. And I was interested that you believe that you can move forward and clean the air

and do a much better to our environment, but at the same time

take into consideration the impact that it has on our competitive

position in the global marketplace.

President Bush has set out an aggressive plan to reduce emissions of harmful pollutants into the atmosphere in a way that will

not put American jobs in jeopardy. The agenda calls for reduced

emissions from diesel vehicles through new emission limits on diesel truck engines and new roles that will require reduced emissions

from off-road vehicles like heavy construction equipment; passage

of the Clear Skies Act to reduce power plant emissions by 70 percent, of which I am a co-sponsor with Senator Inhofe; and reform

the New Source Review program to allow electric generators to put

new modern equipment into their power plants, and Senator Jeffords has referenced that.

If you are confirmed by the Senate, you will be a person who has

to implement President Bush’s plan. As I mentioned in my opening

remarks, I believe you are perfectly qualified for this position because of your ability to bring everyone to the table and find consensus. But I don’t know that you have ever faced a situation like

we have here. Senator Jeffords and I have been dealing with this

now for about 2 years. The two sides of this debate seem so polarized that finding any sort of compromise or consensus will be a

huge undertaking. How do you plan to accomplish this and implement the President’s clean air agenda?

Governor LEAVITT. Senator, during the western electricity crisis,

we in the west had to reassess our position with respect to energy,

but at the same time wanting very much to do nothing that would

compromise the environment. In my own State we wrote a new energy policy that called for us to move forward with the development

of a nearly 5,000 megawatt each year, actually, and also to continue to reduce air pollution, and we have been able to do that in

the last 2 years. We have done so by following a balanced policy.

Now, I will tell you that I believe fundamental to being able to increase the Nation’s supply of energy, and to do it without sacrificing our environment or our competitive position, the President’s

Clear Skies initiative is a prerequisite to being able to accomplish

that. And I look forward to working with the committee and the

President to be able to find a way in which that can be implemented so that we can move forward with both.

Senator VOINOVICH. New science. The National Science Foundation, a couple of years ago, said that there should be an assistant

over there in the Department that elevates the scientific capacity

of the Environmental Protection Agency. Initially Senator Carper

and I introduced legislation, and the reaction from the Administrator was that we don’t need a new position in the Environmental

Protection Agency. I intend to reintroduce that legislation with

Senator Carper. And you mentioned that you would take all of the

41

information that you have, and I would like a commitment from

you that you would reevaluate the position of the Environmental

Protection Agency in regard to this. And, once done, I would hope

that if you find that the National Science Foundation was correct,

that you could become an advocate in the Administration, and perhaps even get them to support this legislation, which we feel is crucial to your agency.

Governor LEAVITT. Senator, if I am confirmed, you have my commitment to learn more about that, and I look forward to working

with you on this matter, as we have on so many in years past.

Senator INHOFE. Senator Wyden?

Senator WYDEN. Thank you.

Governor, welcome, and appreciate all your candor. I would like

to begin by having your reaction as to whether you would ramp up

enforcement of the Country’s environmental laws. I think there is

a widespread feeling in the Country that this is something of a polluter’s holiday; that you look at the clean water record, for example, the clean water record found that only 24 percent of the facilities in significant noncompliance, major violations, faced enforcement actions. The amount of penalties recovered from polluters

dropped 50 percent in 2002 compared to prior years.

My first question is are you prepared to ramp up enforcement of

the environmental laws? And particularly after the collaborative

approach that you have advocated, that I support, after it fails, are

you willing to bring in strong enforcement stick and fight for the

Country’s environmental statutes?

Governor LEAVITT. Senator, I would like to give you a straightforward understanding of my enforcement philosophy. First, the

goal is compliance, to find ways to move people to compliance; and

there are times when strong enforcement is the only tool available

to have that happen. If there are those who avoid or those who

evade the law, the full weight of the Environmental Protection

Agency and the law will be brought to assure their compliance.

Senator WYDEN. Well, that is not being done today, and so my

question, we will be back to it today, is something needs to be done

to ramp up enforcement. When you look at those numbers coming

out of EPA, they are sending a very strong message that polluters

can pretty much enjoy this holiday, and it needs to be changed.

My second question involves what you would do to restore the

independence of the Environmental Protection Agency. You have

got people like Russell Train. We are talking about being bipartisan here. He served both in the Nixon and Ford administrations.

He is talking about unprecedented intrusion by the White House

into environmental policy. What would you do to restore the independence? And perhaps you might want to tell us what did the

White House tell you about how you do your job? You talked, and

I know it to be the case, about how you treated your people fairly,

but you didn’t talk about what the White House said to you about

how you would be able to carry out your duties. What can you tell

us today about how you would restore the independence and the

credibility of this agency that it has enjoyed in the past?

Governor LEAVITT. In my conversations with the President, I

made clear to him and he made clear to me that our mutual goal

was cleaner air, purer water, better cared for land, and a healthy

42

environment, and I agreed, Senator, to offer myself for this position

with that in mind. It was his commitment that attracted me to this

role. Now, I recognize there are disagreements with respect to the

policy, but I would like you to know this: the President will always

know where I stand. He will hear it many times publicly and sometimes privately. I recognize in the role that he has and the role

that I have, that what he needs from me is loyalty expressed in the

context of he will know what I believe to be the facts, and he will

also know what the best science is and what the people of the Environmental Protection Agency believe.

Senator WYDEN. How would you have handled the situation such

as the Cheney task force? Christine Todd Whitman was part of it,

which was put in place in secret, continues to be secret despite the

fact that three Federal courts have ordered the information released? What would be your reaction if someone asked you, as EPA

Administrator, to participate in something with that level of secrecy?

Governor LEAVITT. Senator, I know very little, really, about the

incident you are referring to. I will tell you that I intend to be a

straightforward voice that will lay out the facts and call them as

I see them, and I will be a passionate advocate for my view and

what I believe to be the view of the Environmental Protection

Agency.

Senator WYDEN. Would you open up, for example, the discussions

that are now going on with industrial livestock farms? There are

discussions going on behind closed doors. People want to know

what is going on with respect to the Clean Air Act and the Superfund laws there. They are being done in secret. Would you open

those up?

Governor LEAVITT. Again, I know nothing about those discussions. I would like to tell you about the way we handled those discussions in my State. We anticipated the need for these combined

animal feeding operations to find some means of improvement. We

began working in a very collaboratively way, bringing together the

agricultural organizations with those who would ultimately have to

make decisions. We brought the EPA from the region over and told

them we wanted to find a way in which we could work together to

inspect these organizations quickly and bring them into a sense of

compliance. Over the course of a very short period of time we were

able to develop a program where all 3,000 potential combined feeding operations in our State were inspected, and that all of the larger ones, 387 of them, have now been permitted. We have done so

because we wanted the water to be cleaner, and it has worked.

That is the way I would intend to work, and those are the kinds

of conversations that I want to participate in.

Senator WYDEN. I think what troubles me, and I touched on it,

is the way you have conducted some of these discussions and the

Western Governors’ Association have conducted a number of these

bipartisan policies indicates there is a big gap between that approach and what we have seen, and I will be discussing that some

more in the next round.

Senator INHOFE. Thank you, Senator Wyden.

Senator CORNYN.

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

FROM THE STATE OF TEXAS

Senator CORNYN. Thank you, Mr. Chairman.

Thank you, Governor Leavitt, for being here today.

Senator INHOFE. Let me interrupt for just a moment. The scheduled vote that was going to be at 10:45 looks like it will be at 11:15

now.

Go ahead.

Senator CORNYN. As we have heard, this hearing is really not so

much about your qualifications, unfortunately, from my standpoint,

but an opportunity for people to make and repeat, in many instances, unfounded and outlandish claims against the current Administration in terms of its environmental record. I am not asking

you to comment on that, that is my opinion, and I think shared by

many.

Obviously, delay in your confirmation as head of the EPA is

hardly a pro environment move, and so I hope this committee will

expeditiously vote out your nomination and we will confirm you by

the vote of the entire Senate quickly. There is no reason not to, and

the only reason for delay is for scoring political points, which I

hope we would avoid and show some restraint attempting to do

that.

Just listening here so far to this hearing, you would think that

pollution is continuing and running rampant in our Country, when

in fact the EPA, just last week, in its latest findings on national

air quality, reflects that at thousands of monitoring stations across

the Country we have seen tremendous improvement over the past

20 years for all six principal pollutants. Since 1970, aggregate

emissions for the six principal pollutants have been cut by 48 percent. Now, to be entirely bipartisan about that, that has occurred

both during Democratic administration and Republican administrations. But in the face of those facts, I find it very hard to swallow

some of what I hear when I hear unfounded criticism of this President’s commitment to environmental protection. Indeed, under his

administration, we have seen the reduction of pollutants, we have

seen cleaner air and safer water for all of us, which is our collective

goal, be we Republican, Democrat, Independent, or whatever.

I share Senator Voinovich’s concerns about the polarization of

the debate, because it seems like, for some, environmental protection is a zero sum game; you are either for the environment or you

are for people, and there could be no sort of middle ground. And

I delighted to hear you express your desire to try to achieve some

middle ground in what seems like a zero sum game in the eyes of

some.

Now, I just would have really one question in this round, and it

relates to New Source Review, and let me just tell you my concerns. New Source Review has been a lawyer’s best friend. Because

of the unpredictability of this regulation, because of lack of clarity,

lack of predictability on how it would be applied, rather than a

cleaner environment, we have seen protracted litigation; and that

is why I say the New Source Review has been the lawyer’s best

friend.

Do you view that, whatever the rules may be, that clarity, common sense, and balance ought to be our goal, rather than rules that

44

are perhaps vague, ambiguous, those that will basically invite litigation and thus delay an implementation of those rules? Could you

respond?

Governor LEAVITT. Senator, I acknowledge that there has been

some disagreement on the prudence of that rule, but I will tell you

this. I find no disagreement on the fact that the rule needed to be

clarified. When I speak with State regulators in particular, I referred to this earlier, they called them the puzzle book, and not

only because there is a picture of a puzzle on the binders, but there

are five three-ring binders that contain regulations through which

a State regulator has to filter every decision to determine if in fact

it applies or it does not apply; and there was unanimity, from what

I knew, that there was a need to simplify it. Now, there was disagreement as to how it should be done, but the decisions has now

been made, and it would be my objective, if confirmed, to do that

in the most efficient way possible to make certain that we are moving toward cleaner air, fundamentally cleaner air.

Senator CORNYN. And would you view clarity and eliminating

ambiguity in what the rules are so that there can be, where necessary, strict enforcement of a clear rule, the goal?

Governor LEAVITT. Senator, I have always found that in rulemaking clarity and straightforwardness is the first step of compliance. Generally speaking, most people want to keep the rule, most

people are willing, but they have to know what the rules are and

how to apply them.

Senator CORNYN. Thank you, Governor.

Mr. Chairman, I would like to ask that the latest EPA trends report released last week, entitled ‘‘Latest Findings on National Air

Quality’’ be made a part of the record.

Senator INHOFE. Without objection, so ordered. Thank you, Senator Cornyn.

[The referenced document appears in the appendix to this hearing record:]

Senator Clinton?

Senator CLINTON. Thank you, Mr. Chairman.

Governor, I have a number of questions on a range of issues that

I will most likely not get to during this hearing unless the chairman has a change of mind and we are able to lengthen it so that

we can get all of our questions in. So I will be submitting a number

of questions to you in writing. There are lots of issues that are of

concern to New Yorkers, and I would like to get your answers as

we move through this process.

But I want to ask you about the continuing concerns that I have

expressed about the Inspector General’s report, and I want to

speak about indoor air quality. And before I ask a specific question,

I want to thank a representative of the Downtown Residents from

Lower Manhattan, Katherine McVeigh Hughes, who has just arrived, because I think Mrs. Hughes demonstrates clearly why I am

so concerned about this. She is the mother of two young boys.

Along with her husband, she lives one block east of the World

Trade Center, on Broadway, between John and Maiden Lane, and

she has lived through the confusion, the disinformation, the unsubstantiated reassurance. And I know that in addition to your many

other attributes, you and your wife have a lovely family, and I

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think that putting yourself into the position of someone like Mrs.

Hughes perhaps can clarify the concerns that we have and why

this is not just a question about the past, it is a question about

what you will do as the Administrator.

Because when we began the process of cleanup, it took quite

some time, but the EPA finally announced a testing and cleanup

program in May of 2002, and they tested and cleaned thousands of

residences; and I applauded that effort at the time, but I continued

to raise questions about its adequacy. Since reading the Inspector

General’s report carefully, I have even greater concerns, because

the Inspector General makes a compelling case that further testing

and cleanup are required. Specifically, the IG recommended three

additional testing and cleanup actions. I wrote to the President,

asking that these be implemented. It seems to me that given the

problems in the cleanup and the testing, given the IG’s findings,

that when we went back and retested some of the cleaned up areas,

we found residue of contaminants that were troubling.

I want to ask you a simple yes or no question at the outset. If

you are confirmed, would you seek to implement the recommendations about indoor air testing and cleanup referred to in the Inspector General’s report and in my letter to the President?

Governor LEAVITT. Senator, I understand that there are conversations going on currently between your office and the White

House with respect to this and the EPA. I have not been party to

those, and therefore I am not able to give you a simple yes or no.

I would like to reflect, if I could, however, thoughts I have had

since our conversation about this matter. I listened carefully to

your concerns, and while I have no new insight to add to what has

occurred, because I have no firsthand information about it, I have

tried to ascertain what I could learn from this, and it is my clear

sense that there is an importance for people to have information,

and that when people have information, they are able to act. And

I would like you to know that in a circumstance where I found myself, I would do my best to assure that information was available

and that we could serve the best interest of the people in crisis.

Senator CLINTON. I thank you, Governor, and I know that this

is not yet your responsibility, but as we move forward in this process, I will continue to ask about an EPA commitment. You know,

as part of whatever resolution, and I hope there is a resolution to

this matter, you would be responsible, of course, for implementing

it. Because if one looks carefully at the IG’s assessment of the

cleanup and the retesting, the scope of that program has not been

adequate. You know, we just didn’t get enough places cleaned and,

unfortunately, as the IG report found, 82 percent of the residential

units were recleaned, and they had to be recleaned because the

sampling filters were too clogged with dust to be analyzed. And

even after that second recleaning the units were still too dusty to

pass the clearance tests over 80 percent of the time. So that is evidence that even though there was a cleaning process, the cleaning

process was often not successful.

And, again, I am really trying to get to this en libra point, Governor, because it does seem to me that, first, when you say you are

going to have a cleaning process, then the cleaning process should

be adequate with the results that people can point to and say we

46

are successful. And I think that is the EPA’s responsibility, so it

will be my continuing point that we should do whatever it takes

to reassure people that they have been given both accurate information and that the cleaning of their residences and workplaces

have removed the contaminants that could possibly endanger the

health of themselves and their children.

This IG report I think is very instructive.

Senator INHOFE. Senator, your time has expired. You have gone

3 minutes over, and I am awfully sorry, we have to get to the other

Senators.

Senator CLINTON. Thank you, Mr. Chairman. Mr. Chairman, will

we do another round?

Senator INHOFE. Of course.

Senator CLINTON. Good. Thank you, Mr. Chairman.

Senator INHOFE. Let us go ahead and go to Senator Chafee now,

since he didn’t have an opportunity for opening statements, if that

is all right.

Senator CHAFEE. Thank you, Mr. Chairman.

Senator INHOFE. Senator Chafee, 5 minutes.

Senator CHAFEE. Thank you, Mr. Chairman.

Welcome, Governor. It was a pleasure to meet with you in the

office and hear about your past growing up in the southwest corner

of Utah, and your town grew, I think you said, fivefold in the last

number of years, and so you are familiar with rapid growth and

some of the issues associated with that, and I am sure that you will

bring that experience to your new position, should you be confirmed. And now you are going to be working for President Bush,

as everybody has talked about, and during the campaign he talked

about brownfields legislation and was successful at implementing

that legislation and funding it, very importantly. On the other

hand, he talked about regulating carbon dioxide, and I would like

to see more of the same emphasis put into that campaign pledge

as put into the brownfields, which has been enormously successful.

I would like to ask a separate question, though. You are going

to be overseeing 10 regional administrators. What kind of flexibility

and autonomy will you give to these 10 different regional administrators? Each of these regions are going to be so different, so what

kind of flexibility do you foresee giving these administrators?

Governor LEAVITT. Senator, having served as Governor for nearly

11 years, I have dealt with the regional administrators of the Environmental Protection Agency on many, many occasions, and recognize that much of the great work that happens, and many of the

decisions that are reached happen at the regions. I would be happy

to meet, pre-confirmation, with the regional administrators to

begin to delve into the organizational structure, where changes

might be made or where the strengths of the organization would

be found. If I am confirmed by the Senate, I would most certainly

begin that discussion and do what I can at that point to make any

improvements necessary.

Senator CHAFEE. Thank you. On a lighter note, since your relationship with the President is so important, people have talked

about it, and you are both former Governors, what has been your

relationship in the previous years, in meeting at conferences or the

like?

47

Governor LEAVITT. Well, since T is very close to U in the alphabet, we have spent a considerable amount of time sitting with one

another. He is a person who, as I indicated earlier, has my full

trust, and he has my full loyalty. He knows, I believe, based on the

nature of our relationship, that he will have my best efforts and

that he will also have my full and complete opinion; that I won’t

pull punches with him; that I will tell him directly, sometimes in

private how I feel; and I like to believe that that may be one of the

reasons that he has called on me for what is clearly a challenging

assignment.

Senator CHAFEE. Thank you, Governor. Good luck.

Senator INHOFE. Senator Murkowski.

Senator MURKOWSKI. Thank you, Mr. Chairman.

Governor, I would like to switch over to some Alaska-related

issues.

Senator BOXER. Can we go back and forth?

Senator INHOFE. No, not until each one has had a second round.

That has always been the custom of this committee, and all committees that I am aware of.

Senator CLINTON. She hasn’t had a round.

Senator BOXER. I haven’t had a second round.

Senator MURKOWSKI. I have not had a second round either.

Senator INHOFE. Oh, that is correct. I do apologize to you, Senator Boxer, you didn’t have that first round. I apologize.

Senator BOXER. Thank you so very much.

Senator INHOFE. You are recognized.

Senator BOXER. Thank you so very much.

Senator INHOFE. In fact, take 6 minutes, just because of my mistake.

Senator BOXER. Oh. You have won my heart.

I just wanted to say to Senator Cornyn, who has kind of said

that many of us were putting forward unfounded claims regarding

this Administration’s environmental record. I couldn’t disagree

with you more. I have full respect for your opinion, but I think

that, again, history will show us. I mean, try to tell that to the people of New York, who can’t get straight answers on their equality.

Try to tell that to my people, who are sitting there with perchlorate, you know, not even having a standard at this point, with

Superfund sites who are yet to be cleaned. So I just think, again,

I don’t think any of us should impugn each other, and let history

judge where we are.

Governor, the EPA has, to date, been defending against the hard

rock industry’s attempt to weaken the public’s right to know. This

has to do with toxic releases. As you know, Federal law requires

that facilities that emit toxics to tell the community what toxics are

being released. Now, you sponsored a Western Governors’ Association policy resolution, siding with the industry, to push for the

weakening of the TRI program. That is the toxic release inventory

program that I talk about. As EPA Administrator, would you support giving the hard rock mining industry a special break, or continue to assure that the public’s right to know about toxic releases

is upheld?

Governor LEAVITT. Senator, the report I think you are referring

to is the toxic release inventory that is regularly offered, and there

48

was a resolution put forward by the Western Governors’ Association that made a very simple point, and that was that the public

does have a right to know, but we should also make certain that

there is context given to that report. Those that are regularly listed

at the top of the report are generally from western interior States,

for the reason that you pointed out, and that is because of mining.

Senator BOXER. Governor, I just have so little time. I really think

this is a yes or no deal. If you emit, you report it, period.

Governor LEAVITT. I don’t disagree with that, Senator.

Senator BOXER. So do you support the public’s right to know if

a polluter, be it a hard rock mining or any other industry, emits

toxics, that they have to tell the community what is being emitted,

yes or no?

Governor LEAVITT. That is important information. The answer is

yes. But I also think it is important that we give context to those

reports.

Senator BOXER. OK. Well, I am going to watch this carefully, because I don’t know what you mean give context. This is what we

are trying to get at here, it is either facts or it is not. If you emit

it, you tell it. Now, if you say now you have to give context, I

worry. So if you could maybe amplify.

Governor LEAVITT. I would be happy to.

Senator BOXER. Because I am concerned, because right now this

is one thing the EPA is doing right, so I don’t want to see us go

back on that.

Now, according to an investigative report by the Sacramento Bee,

several EPA enforcement officials say they have been pressured by

management to pad their enforcement statistics and make it look

like they are pursuing more violations of environmental laws than

they really are. The statements by EPA officials and the information they provide appear to suggest an orchestrated effort to disguise the fact that EPA is actually pursuing fewer investigations

than in the past. For instance, this investigative report in the Bee

said that EPA has lumped 190 counter-terrorism-related investigations into its annual performance report to Congress, identifying

them as EPA-initiated ‘‘criminal investigations.’’ One senior EPA

agent said, ‘‘I called the FBI and said if you need us, call us.’’ That

warranted a criminal case number. There was no investigation.

Now, you have nothing to do with what this report talks about.

What I want to know is will you commit to us to investigate this

matter and assure us that EPA will be completely forthcoming and

transparent when reporting to Congress and the public on its investigations?

Governor LEAVITT. Senator, no question that enforcement is a

very important part of a compliance program, and I would like to

just repeat that compliance, in my judgment, needs to be the objective. And there are times when people evade and when they avoid,

and when they do, the full force of the agency’s responsibilities

should be brought to bear.

Senator BOXER. No, no, no, that is not my question. My question

is within the EPA, that they said they were investigating when in

fact the Bee said they were making these numbers up. Will you investigate this matter?

49

Governor LEAVITT. It is not currently. I will assure that there is

some reference or some responsibility if I am concerned.

Senator BOXER. Some reference?

Governor LEAVITT. I would be pleased to follow your suggestion

if I am confirmed.

Senator BOXER. Thank you.

Governor LEAVITT. And there is not something currently there.

Senator BOXER. Thank you very much.

There are so many things and so little time. Do you believe the

EPA should inform the public and its representatives of a decision

to dramatically ease land reuse of parcels contaminated with PCBs,

one of the most dangerous and persistent chemicals known to man,

and a decision which overturns a 25-year understanding of statutory language, or should the EPA have made such a decision with

no public participation, no announcement, and no data? It was only

the press that revealed this.

Governor LEAVITT. Senator, obviously the problem of PCBs is a

significant one. I am not able to respond to the specifics of that situation, but I would tell you I am aware of the general area and

the need for clarity.

Senator BOXER. OK. So will you look into this and report back

to us, should you be confirmed, on how this was handled within the

agency and why it took the U.S. Today to have a front-page headline ‘‘Government Changes The Laws Regarding The Transfer of

Land With PCBs’’ without one hearing about it or anything else?

Would you also look into that and let us know what you find?

Governor LEAVITT. If confirmed, I will, Senator.

Senator BOXER. If confirmed. Thank you.

On perchlorate, do you believe it is EPA’s responsibility to regulate contaminants in drinking water that threaten the public

health and the environment?

Governor LEAVITT. Obviously, that is one of EPA’s most important positions, and on perchlorate in specific. I am aware of the

growing number of States where that has become of concern. My

State is among them. We have a particular site where rocket emissions were used, and we are in the process of working to clean that

up on a voluntary basis.

Senator INHOFE. Senator Boxer, your time has expired.

Senator BOXER. OK, thank you.

Just to conclude, could you please let us know your opinion on

when we should have a Federal standard for perchlorate?

Governor LEAVITT. I would be happy to respond to that in questions.

Senator BOXER. If confirmed. Thank you.

Senator INHOFE. Thank you, Senator Boxer.

Senator MURKOWSKI.

And, by the way, the vote now is not until 11:25, so who knows

what is going to happen.

Senator MURKOWSKI. Thank you, Mr. Chairman.

I would like to turn briefly to some Alaska-related issues. First

is regional haze. Your record indicates that you have been quite involved with this, particularly as it pertains to the Grand Canyon

and other important sites in Utah. In Alaska, the EPA has failed

to commit funding to a regional haze monitoring program, and we

50

have some reason to believe that there are overseas sources which

are the major contributors, but we don’t know. Without this positive data, it is difficult to make a determination as to what we need

to do; are we unnecessarily imposing restrictions without any resulting benefit. Can you comment on the process that you feel

should be adopted to ensure that the proscribed treatments really

treat the problem?

Governor LEAVITT. Senator, this is at the heart of one of my most

fundamental beliefs, that we ought to be managing for results and

not simply process, and that while we absolutely have to have

broad and very specific national standards, we need to have the

ability for neighborhood solutions; and Alaska’s circumstance would

clearly be unique. You referenced the fact that I have done some

work with regional haze and with regional issues. One of the lessons that I learned in doing so is that oftentimes the source of pollution may be across a border. In the Grand Canyon Visibility

Transport Commission, for example, it became clear that there

were many contributors to the brown haze that went across the

Grand Canyon; one of them was pollution that came from Mexico

across our border.

It is clear to me that the Environmental Protection Agency ought

to use its reach as a convener, to be a leader among nations, to find

those areas where there are agreements necessary between nations

to be able to solve regional problems. Problems of this sort clearly

go across boundaries; they clearly go across political boundaries.

Senator MURKOWSKI. I would like to work with you to find some

of the solutions there.

Now, when we spoke in my office, I mentioned the issues of wetlands in Alaska. Forty percent of the State is wetlands, and yet

they are not wetlands as most people back here on the east coast

would define them; they are very isolated, they are not navigable.

And we really have not seen any resolve in terms of how we define

the jurisdictional status of these wetlands, and this is despite this

Northern Cook County case. Can you give me your views on the appropriate role of EPA in resolving this issue?

Governor LEAVITT. Senator, it will be of no surprise to you. as a

Governor over the course of the last 11 years, I have worked on

many different occasions on issues related to wetlands; and wetlands are a very important part of a natural heritage that we want

to protect. I am also aware that the Illinois Supreme Court case

that you reference has caused some question on this matter, and

that it is a matter that is currently before the EPA and that a likely comment on my part would not be particularly productive at this

moment. But I would like to tell you I am fully conscious, fully conscious of the difficulty, fully conscious of how important it is to a

State like Alaska.

Senator MURKOWSKI. We do want to work with you on that.

Another area that I would specifically ask for some assistance,

we have health respiratory issues in the State as they relate to

dust. It is uncontrolled out in our rural areas. But we also have

a very unique problem in that so much of rural Alaska is still powered by diesel generators. We are not on a power grid, so when you

have a blackout out here, it doesn’t affect us; the only thing that

affects us is the price of the diesel. But we have questions and conVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6601 92385 SENENV1 PsN: SENENV1
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cerns as to the health effects, the long-term health effects of diesel

use in these smaller communities. We are looking for assistance,

we want some sound scientific information to help us resolve this

issue. Can you give me some comment as far as how EPA could

take some kind of a leadership role with Alaska in resolving or at

least assessing the long-term health risks that are posed by diesel

use in our rural communities?

Governor LEAVITT. Senator, the goal we all share is cleaner air,

whether it is in Alaska or Delaware, and my philosophy is we have

to have national standards, we need neighborhood solutions, we

need the capacity to work within the unique circumstances in every

State to achieve that national standard. And if I am confirmed by

the Senate, you can be certain that I will be willing to work with

you and the citizens of Alaska to find the neighborhood solution.

Governor Murkowski. Thank you, Mr. Chairman.

Senator INHOFE. Thank you, Senator.

We have been joined by Senator Carper.

And in my opening remarks I shared with them some of the complimentary things you said about your fellow Governor during the

years you were Governor.

Senator CARPER. Is it my turn?

Senator INHOFE. Yes, sir.

OPENING STATEMENT OF HON. THOMAS R. CARPER,

U.S. SENATOR FROM THE STATE OF DELAWARE

Senator CARPER. Well, let me clear the record up, then.

It is great to see Jackie Leavitt, and we thank you for coming

and for your willingness to share your husband; not just with the

people of Utah, but with the people of our Country.

To my colleagues, Governor Voinovich and I have had the pleasure of serving with Governor Leavitt for a number of years in our

old jobs, and I think it is safe to say that of all the people that I

have had a chance to serve with when I was Governor, I respected

none of them more than I did Governor Leavitt. He is thoughtful;

he is just a decent, good person. I think his environmental record

is probably mixed to good. People in Delaware probably describe

mine the same. He is very good at getting people to gather around

consensus and create consensus where it is sometimes difficult to

find. In fact, of all the people I have served with, there is probably

no one that I liked any more than Mike Leavitt when I was Governor, except maybe Christine Whitman. And Christine Whitman

went on to become head of EPA; she sat right there where you sit,

my friend. And I said almost as nice things about her as the time,

and she went on to lead EPA during a tough time, and for an Administration that I think, being charitable, has not compiled an enviable environmental record. And she can speak for herself as to

how difficult or easy that job was, but it is a tough job.

One of the issues that Governor Bush campaigned on was the

issue of global warming, greenhouse gases, and he indicated as a

candidate in the 2000 campaign that it was something he wanted

to address, and so did Governor Whitman. But as Governor Bush

becomes President Bush and decides that he wants to take a different course, and so did Governor Whitman.

52

In the meeting that you and I had, we talked about good science;

we talked about our need to be able to rely on EPA for thoughtful

analysis, and when they have good scientific analysis, to share it

with all of us. Senator Jeffords here and myself, along with Senator

Lamar Alexander, Lincoln Chafee, Judd Gregg have joined me in

sponsoring clean air legislation that seeks to reduce CO2 emissions. We have been trying for months to get EPA to share with

us the analysis that they did on our bill, comparative analysis of

our bill, the health effects of our legislation, that it indeed provided

better protection for Americans than President’s initiative, and

frankly not at a whole lot more cost, and we never got the disclosure, that kind of analysis.

And I just want to ask you to say for the record what can we

expect from an EPA with your leadership that might be different,

less frustrating for us and, frankly, less unfair to the people of this

Country? It is one thing to deny us the information that EPA has,

but we rely on that information; we need good scientific data to be

able to make the right kind of decisions. How will it be different

once you are confirmed, and I believe you will be?

Governor LEAVITT. Senator, may I say that it would be my pleasure again to work with my friend from the State of Delaware in

whatever way, whatever capacity. It would be my intention to work

with you in the same open spirit of transparency that we always

have. I am also aware that there are dynamics that historically

have always existed between administrations and Congress as to

data and when it is provided and when it is not. I don’t know much

about that. What I do know is that it would be my purpose to work

with you directly, straightforwardly, and in a way that would supply us both with the information to meet our common goal, which

is clean air.

Senator CARPER. There is an interesting piece you have to read

in today’s Wall Street Journal. It is a comparative analysis of Senator Jeffords’ bill, the President’s Clear Skies initiative, and what

we believe, the four of us that I mentioned earlier, to be a good

compromise between sort of bridging the differences between the

two legislations, and it is pretty much described as such, and I

would invite your attention to it in the kind of spirit where we for

years worked to develop compromises and consensus among Governors from all over the Country, different political parties, and I

would invite us to try to do the same thing here. It may be the

time for man’s hope over experience, but I think we ought to give

it a shot.

The other thing I want to mention just briefly relates to the

Motiva Refinery on the Delaware River, one of the largest, maybe

the largest producer of sulfur dioxide of any refinery on the east

coast, maybe in the Country. In the 2001 EPA, along with Delaware, along with Motiva entered into a consent order to reduce dramatically, beginning in 2004, sulfur emissions from that plant.

Since that time we have entered into a new consent agreement, effective in 2006, to reduce dramatically sulfur dioxide emissions

from the plant; not to put them into the air, not to put them into

the Delaware River. And when Governor Whitman left her post,

she had assured me that she would use her good offices to make

sure that whatever was agreed to was abided by, and I wanted to

53

discuss this issue privately, and I just wanted to raise it again here

and ask for your comments and really for a similar commitment

today.

Governor LEAVITT. Senator, you were very straightforward with

me when we had our private meeting, indicating the priority that

it was to the people of Delaware. I indicated to you, as I will now,

that it is not a circumstance that I am fully aware of or knowledgeable of. I look forward and commit to you that I will learn more

and that, as we do, that commitments that have been made can be

kept.

Senator CARPER. Fair enough.

Senator INHOFE. Thank you, Senator Carper.

Senator CARPER. Thank you, Mr. Chairman.

[The prepared statement of Senator Carper follows:]

STATEMENT OF HON. THOMAS R. CARPER, U.S. SENATOR FROM THE STATE OF

DELAWARE

Mr. Chairman, Senator Jeffords, and Governor Leavitt. Good morning.

I am pleased to have Governor Leavitt with us this morning and to consider his

appointment as Administrator of the Environmental Protection Agency.

As a Governor of Delaware for 8 years, I had a chance to work closely with Governor Leavitt when I served as chair and vice-chair of the National Governors’ Association. Although we are from different political parties, we nevertheless were able

to find consensus on many issues important to the States and the Nation. Governor

Leavitt consistently demonstrated a willingness to work closely with Governors from

both parties to solve a problem, and I am hopeful he will continue to do so once

he is confirmed to his new position. I look forward to continuing our friendship during his tenure as EPA Administrator.

I had similarly positive things to say about Governor Whitman two and a half

years ago during her confirmation hearings. She did an admirable job of leading the

Agency, but I often wondered if others in the Administration influenced decisions

made by the EPA in ways that were not helpful. I hope we can work with you, Governor Leavitt, to address these concerns in the future.

From my own perspective, the EPA was less than forthcoming earlier this year

about its own analysis of clean air legislation I have introduced, the Clean Air Planning Act. This analysis showed that the bill would produce substantially greater

health benefits than the Administration’s competing air pollutant bill but would cost

virtually the same to implement. I specifically requested that the EPA release this

analysis to me and the bill’s cosponsors. But the EPA refused to do so, presumably

for political reasons.

Refusing to cooperate, however, damages the EPA’s reputation as a credible, scientific body, and it hurts the EPA’s relationship with Congress. This committee, for

instance, is currently considering several complex environmental proposals—ranging

from water quality standards, ozone standards, chemical plant security, and of

course clean air and climate change. These are complicated, scientifically rigorous

matters. We look to the EPA for help understanding the impact of legislative proposals on these topics. Regardless of how a particular member may ultimately vote

on an issue, members of this committee are entitled to make their own assessments

of complex legislation based on the most accurate and unbiased information available. Given the crucial nature of the issues at stake, I hope that EPA, under your

leadership, has a change of heart and decides to be more forthcoming with analyses

and information on the matters before this committee.

In a letter to the New York Times on June 21st of this year, Russell Train, who

served as EPA Administrator under both Presidents Nixon and Ford, expressed his

concern that the independent status of the EPA is being eroded. When you are confirmed, Governor Leavitt, I hope you will make it a goal to stop that erosion and

return a sense of independence to the Agency. As we look forward to working with

you at the EPA, I join my colleagues in asking you to focus on improving the flow

of information from the EPA to the Senate, and I urge you to do all that you can

to see that the EPA continues to fulfill its primary mission of protecting the nation’s

environment.

I also want to take a minute today and ask you to focus on two important questions, one local and one global.

54

In Delaware, on the Delaware River, in the town of Delaware City is the Motiva

oil refinery. While this refinery has been an important contributor to the State’s

economy and the nation’s supply of gasoline and petroleum products for decades, it

has also been a significant source of air pollution. In 2001, 1.5 million tons of pollutants were released, much of that to the air. In March of 2001, the EPA, the Delaware Department of Natural Resources and Environmental Control and Motiva

signed a consent decree wherein Motiva agreed to substantially reduce emissions of

sulfur dioxide by installing modern controls on the two major sources of air pollution

by the end next year, 2004.

Earlier this year, we learned that parties to the agreement were considering

changes to the decree which would have allowed some of the sulfur removed from

the air to be discharged into the Delaware River, along with additional toxic byproducts. I was very concerned with this news and asked your predecessor, Governor

Whitman, to become involved. She did and was working with me and the people of

Delaware before her departure to help achieve a workable solution. Since then, the

parties have developed a revised consent decree which seems to protect the water

but also delays compliance until 2006. Delawareans, myself included, expect the

EPA to uphold the Clean Air Act and not allow diversion of pollutants from one

source to another. I urge you to be proactive in seeing that whatever agreement is

ultimately reached is fair to the environment and that any delay in installing the

proper equipment occurs only if absolutely necessary.

I am also particularly interested in your views on the issue of global warming and

humanity’s role in altering the earth’s climate. When you visited with me earlier

this month, you mentioned that you were reading a National Academy of Sciences

report on climate change. I am interested in your latest views on the topic. In my

view, the evidence and the science point to the conclusion that global warming is

occurring, and I am also convinced that human-caused emissions of greenhouse

gases are increasing the rate at which the earth is warming. As a result, I think

we in Congress should be talking about how we might best start to address such

changes. Instead, we are still debating whether the changes are even occurring or

if they are linked to human activity. People of Utah may not be too concerned with

beach erosion as sea level rises, but the people of Delaware are. People of Utah may

not be too concerned with the loss of sugar maple trees as New England warms,

but the people of New Hampshire and Vermont are. People of Utah may not be too

concerned with the melting of glaciers and the warming of the permafrost, but the

people of Alaska are.

As Administrator of the United States EPA, I expect you to be open to examining

the issue and working with us to develop the best strategy moving forward. As I

mentioned earlier, I have introduced legislation that takes a significant step forward

in addressing CO2 emissions from one contributor—the electricity producers. I suggest you take a look at its provisions, particularly regarding CO2 controls. It represents a sensible proposal for how to get started on this problem.

I would also like to point out an article from this morning’s Wall Street Journal,

written by Tom Hamburger, entitled ‘‘Clear Skies Hits Storm Front, Polarized Political Climate Threatens Bush Environmental Plan’’. Mr. Chairman, if there is no objection I would like to have a copy of this article included in the hearing record after

my statement, and I would urge Governor Leavitt, as well as the members of this

committee, to read it. I am interested in your thoughts, in light of the points raised

in this article, of how we should best proceed on a clean air agenda.

In closing, I look forward to joining with you, Mr. Chairman, my colleagues on

this committee, and the Administration to strengthen our nation’s commitment to

clean air, clean water, and to preserving a rich environmental legacy for our children. While we have made important strides in the past three decades, we have an

obligation to try harder, to do better. Whatever the challenge, whether it is global

warming, nuclear waste, polluted coastal waters or urban sprawl, we should work

together to do what is right.

I know members of the committee have questions for Governor Leavitt and I don’t

know if we will have time to ask all of them in person today. If we have to submit

questions for response after the hearing, I hope that you will allow sufficient time

for the nominee to respond and for members to review his answers before scheduling a vote on his nomination.

Mr. Chairman, I look forward to hearing from Governor Leavitt today, and to the

opportunity to work with him during the coming years.

Senator INHOFE. We are going to Senator Allard, and then as

soon as you are through, Senator Allard, I would take my first

round of questions and then go vote; we can do it kind of in shifts,

55

and perhaps if you can stay and preside until I get back, that

would work out. Senator Allard.

Senator ALLARD. Thank you, Mr. Chairman.

Governor, you come from a beautiful State; it is a bountiful State

and also pretty diverse. And I am your neighbor to the east, and

I think I come from a State that has many of the same attributes.

I would like to have you talk a little bit about why or why not, at

the Federal level, we should have an appropriate administration of

the programs, yet enough flexibility there where the States can respond to the need within the State, and I wonder if you would respond, please.

Governor LEAVITT. Senator, I believe I can best answer that

question by reflecting on my experience with the Grand Canyon

Visibility Transport Commission. This was a Commission established under the clean air amendments in 1991 and it, in essence,

empaneled a group, of which I was a co-chairman, to bring all of

the States together in a region, all of the Indian tribal nations, all

of the Federal agencies, all of the environmental groups of interest,

the industries, ranging from timber to tourism, to come up with a

plan to clean up the view over that national treasure. There was

and continues to be in the Clean Air Act a national standard that

needed to be met, but it was clear, as we began to work through

this, that there were individual circumstances in every State that

made their need for a neighborhood solution unique and important;

and we were able to, in essence, invent a way in which, collaboratively, each State could meet the individual demands of their

State and then, by using a market trading mechanism as a backstop, assure that there was certainty to the solution. Now, that has

grown since into the Western Regional Air Partnership, which is

part of the President’s Clear Skies initiative and one of the reasons

that I so strongly believe that bill needs to pass if we are to meet

the objective that I think we all have, which is more environmental

progress in a way that will not compromise our competitive position.

Senator ALLARD. That is a good example, Governor, and I want

to compliment you on your leadership in that. We all hear horror

stories from State officials trying to work with Federal Government

officials in the Environmental Protection Agency. Did you have any

similar experience in your time serving in Utah? I don’t know that

you need to list specifically names or anything like that; questions

you have with similar experience. And then to go a little bit further

with that, please discuss how you will work to ensure that EPA

does not fit the description perhaps of your experience and some

of these other horror stories that we sometimes get and, under your

leadership, how you will work with the individuals and not necessarily through press releases.

Governor LEAVITT. Senator, there are 18,000 people in the EPA.

Ironically, that is about the number of employees in the State of

Utah. We have held ourselves to a high standard in the State of

Utah, wanting to respond to those who had need for services from

government in an efficient and hopefully friendly way. To the extent we have met that, I am proud; to the extent we haven’t, I wish

we could do better. My guess is that there have been times, I know

there have been times, when I have dealt with the EPA, like any

56

other large organization, when I have been dealt with in ways I

wish I hadn’t. But, there have been many times where I have observed dedicated people prepared to do what they can to clean up

the air, to purify the water, and to better care for the land. I have

a basic tenet of my own philosophy, and that is that if you change

a heart, you change a Nation; and I think that is true of agencies,

and it will be my objective to, first of all, set an example myself,

if I am confirmed, to be as responsive to you and to the people of

this Country as possible, hoping that others in the agency will follow suit.

Senator ALLARD. As you are aware, Governor, the Superfund program is one that is important to many States. It is imperative that

problem sites be identified and cleaned up to minimize the risk to

those who live around them. I would like to commend the EPA on

a job that they have done in handling the Shadduck Superfund site

here in Denver, Colorado, under a Republican administration, I

might add. This site, right in the middle of a heavily populated

neighborhood, is currently being cleaned and cleared so that the

residents of the Shadduck neighborhood can breathe a little more

easily. Would you care to share some of the experience you have

had with the Superfund program during your term as Governor of

Colorado? And I also hope that you will help us keep an eye on the

Shadduck site to make sure we stay up on cleanup on that.

Governor LEAVITT. Senator, we currently have 22 Superfund

sites in our State. Superfund is a very important part of our effort

as a Nation to clean up the environment and to make right some

of the things that have happened in the environment we wish

hadn’t. I will tell you that some of the most positive experiences I

have had, however, have come when we as a State have stepped

up and voluntarily found ways to solve problems. So I am very supportive of the Superfund project, but I am also supportive of the

ability for States to be able to find ways to clean up sites. One of

the sites that I am the most proud of was the Kennecott water

reclamationsite. This is one of the largest copper mines in the

world, an open pit copper mine, and I will tell you about it later.

Senator INHOFE. All right.

Senator ALLARD. I will give you an opportunity later.

Governor LEAVITT. Thank you.

Senator INHOFE. Thank you very much. We will now start our

second round of questions. And while we are waiting for others to

get back, Senator Jeffords and I will have our questions, and then

Senator Voinovich will be back to chair the meeting.

Governor, I know there are two approaches as to measuring the

performance of the EPA. Many people believe that it should be

measured by the number of criminal prosecutions or fines, or this

type of action taken by the EPA. I don’t believe that, but, nonetheless, if anything, I could probably be a little critical of this Administration because they have a very impressive record, if you call it

impressive, of enforcement actions. In 2002, the EPA reported a 40

percent increase over 2001 in the number of criminal cases initiated, more than 17,600 compliance inspections conducted across

the Nation, and 144 million in administrative, criminal, and civil

judicial penalties. I would like to know just what your feeling is in

terms of how you can measure the performance of the EPA.

57

Governor LEAVITT. Senator, I believe fundamentally that we

should manage for results. Results in the case of the EPA is compliance. Progress is measured when people come into compliance.

When we measure only enforcement, we miss, I think, some of the

best work done by the EPA or any State Environmental Protection

Agency. When a representative of the Utah Department of Environmental Quality is able to meet with someone who is currently

not in compliance and find a way to get them there, that is a success in my mind.

Now, there are times when people avoid or they evade, and that

is the point at which we have to have strong laws and the capacity

to enforce, and that is when we should. And one of the things that

I am most optimistic about is that in 1996 the EPA began to negotiate agreements with States that allowed a partnership approach

where we could measure not just enforcement, but actual improvement and results. And while I will commit to you and the members

of this committee that we will be willing to move forward with the

full enforcement authority of the agency, we will also work to

achieve compliance, because progress is in compliance.

Senator INHOFE. Well, I appreciate that, Governor, and I only

bring this up because there has been some criticism of this Administration not being as strong as they should be on enforcement,

when in fact the record is probably stronger than any previous administration.

You have got a problem in Utah in this growth, you have a very

heavy growth in population. I would like to have you tell us a little

bit about the Envision Utah and how the State can deal with its

growth issues. Would you do that?

Governor LEAVITT. I would be pleased to. That is a source of

some satisfaction to many in my State. Utah is a State that is

growing rapidly; it took 113 years for us to get our first million people, only 30 years to get the second million. The third million will

come in about 17 years and the fourth million about 16 years after

that. So it will double in size at a very rapid time, and we are, like

any State with that kind of growth, facing pressure on our infrastructure, pressure on our open space, pressure on water, and we

needed to take a long view, so we engaged in a process we called

Envision Utah, where we literally laid out with broad community

participation four selective scenarios and then asked the people of

our State through broad outreach to tell us what they wanted the

State to look like 50 years from now.

The four scenarios had responses from literally tens of thousands

of people. We held town meetings in 150 or more areas. We had,

at various times, full blackout of television while we had these environmental discussions with the broad communities. Over time we

have settled on a vision of what we want the State to look like, and

we are now training through Envision Utah all of the city councils

and the county commissioners and the planning commissions, and

all of those who will have some effect on what that vision will

come. The foremost principle is that we use light, not heat. We are

using the persuasion of what the broad vision is to allow many different coordinated organizations to come to that vision, and it is

working. In the last few years we have been able to instigate light

rail, for example, in our State; we have been able to rebuild our

58

highways; and we have been able to do it all in a way that is environmentally consistent with our objective of having a clean, safe,

and healthy place to live.

Senator INHOFE. Well, I applaud you for that; it is a very difficult

thing. I was mayor of a major city, and you have to respect property rights, but you can use your persuasion as you have done in

Utah, and I think it is a great model for the Nation.

Senator Jeffords, let me comment that Senator Wyden and I

talked, and we are going to go ahead and do this until 12:30, since

this vote has kind of interrupted things, so if you will go ahead and

take your time, we will go vote and then others will be coming

back. Senator Jeffords.

Senator WYDEN. Mr. Chairman, just in the interest of time, I

think I would be next. Would it be all right if I proceeded after

Senator Jeffords?

Senator INHOFE. Yes, that would be fine.

Senator WYDEN. Thank you.

Senator INHOFE. Well, unless a Republican comes back, because

you are supposed to go back and forth.

Senator WYDEN. Fine.

Senator INHOFE. Let us see what happens.

Senator JEFFORDS. If a National Academy of Sciences studies determines that emissions will or are likely to increase above today’s

levels due to the NSR rules, will you revoke them, or what would

you do?

Governor LEAVITT. Senator, I am not sure how I would respond

to that question. It is clear to me what the goal is, and that is

cleaner air. It is also clear to me that the New Source Review

rules, as they were previously constituted, were so complex that

there wasn’t a State regulator who knew how to apply them; and

there is, I think, broad, at least substantial support that I have

ascertained among State regulators in having the clarity that has

come. I recognize the differences of opinion that exist here, but,

from my own experience, having clarity is going to be quite valuable not just in the context of clean air, but in the very difficult

and rather thorny issues involved in how we pay for the creation

of not just production, but also transmission. These are thorny

issues in terms of rate basis and public service commissions, and

I have seen the complications, as I know you have, in various roles.

Senator JEFFORDS. Well, if emissions go up, would you consider

revoking the NSR rules?

Governor LEAVITT. It would not be in our interest to have those

go up. One of the reasons I support the President’s Clear Skies initiative is that I believe that through a market-based trading, and

the backstop and the certainty that that will bring, we will see all

of the pollutants subject to regulation begin to reduce. I have seen

this work, I have seen it in our Western Regional Air Partnership,

and I have high confidence that we can make it work and that it

can be part of the solution as to how we can increase the amount

of progress we get while at the same time not compromising our

competitive position as a Nation. So, Senator, I have optimism that

we can find ways to achieve both of those.

Senator JEFFORDS. You may be surprised to learn that the Clear

Skies proposal weakens current law substantially by immediately

59

eliminating or downgrading important standards and authorities in

exchange for weak caps required in the future, which we don’t

know about. For instance, New Source performance standards are

set well below standards now being required at new power plants

in the west. Power plants could be sited 32 miles from a national

park or other Class I areas without having to analyze the impact

on air quality or visibility in those areas. And EPA would be permanently prevented from controlling mercury emissions from utilities, even if their unacceptable high risk remained after the Clean

Skies were met. In 2010, even if Clean Skies were to pass, approximately 80 counties with about 45 million people will still be in the

non-attainment or the free fine particle standard.

First, would these provisions be good for Utah? If Utah has performed an analysis of the costs and benefits of the Clean Skies proposal, could you share that with this committee?

Governor LEAVITT. Senator, you mentioned in the course of that

question the beauty of our national parks and the difficulty of

being able to balance the emissions that come from power plants.

That is precisely at the point that we were pursuing very aggressively on the Grand Canyon Visibility Transport Commission, and

doing it by focusing on action and results instead of the endless arguments that sometimes I think we get into as a result of the implementation of some of the statutes.

When President Bush announced my nomination, I described an

experience I had at the Grand Canyon at age eight. My family arrived at the south rim at twilight, just in time to see a giant shadow creep across the canyon. I saw the Grand Canyon in all its

splendor.

Thirty-six years later, I returned as Governor, with responsibility

to co-lead a commission to clean up what was now a brown haze

across the sky in the Grand Canyon, and much of it was coming

from various sources that ranged from pollution from cars, from

forest fire burns, to pollution coming from Mexico. Everyone was

contributing to that problem.

We had to find a way in which we could craft a solution that

would meet the individual needs in every State, and we did so

using a market trading device with each State being able to come

with their own plan.

Senator it is working, and it is not just working. We now have

a plan on sulfur. We are moving on one on NOX. We have been

able to work with one on diesel, and I feel some optimism that

Clear Skies, in fact, can deploy that kind of tool, and that we, in

fact, can achieve the level of air progress that the President envisions.

Senator VOINOVICH. I have the list. I am next, and then I think

Senator Wyden, you are next.

Senator WYDEN. Fine.

Senator VOINOVICH. Governor Leavitt, I have been concerned

about the Great Lakes. I want to get a little provincial right now.

The Senator from Ohio, someone said, had a lot to do with Lake

Erie. When I came to the legislature, Lake Erie was the poster

child for a dying lake. At that time, I made a commitment as a

State legislator to do everything I possibly could to stop the deterioration of the lake, and I referred to it as waging the second batVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6601 92385 SENENV1 PsN: SENENV1
60

tle of Lake Erie. You remember Lake Erie won the War of 1812

with Admiral Perry. I think we started the second battle of Lake

Erie.

At the time, I worked very closely with the first head of the Environmental Protection Agency, Bill Ruckleshaus. The world was focusing on the Great Lakes. The United States was focusing on the

Great Lakes.

The ecology has come a long way since the 1960’s. But the fact

is, there still needs to be a great deal done. I was very much involved in the comprehensive restoration plan for the Everglades. In

fact, I was the chief Republican sponsor of that bill that came out

of the WRDA bill.

I said to myself, we are doing this for the Florida Everglades.

Why are we not doing this for the Great Lakes? I think that I do

not need to remind you of this, but it is the water for 40 million

people. It contributes about $4 billion in terms of a fishery. Onefifth of the total manufacturing activity takes place in that region.

The GAO recently came out and said that where there were

many State and local programs, restoration of the Great Lakes is

being hindered because there is little coordination and no unified

strategy for these activities; and the Environmental Protection

Agency, Region 5, is responsible for the coordination.

I have held two hearings on the matter, and I wrote to the Governors of the various States, and we have put together a restoration bill for the Great Lakes.

I would like to know, are you aware of how important the Great

Lakes are? I am interesting in knowing what kind of leadership

you possibly could give to working with us to go forward with a

comprehensive plan, and also to engage our friends from Canada

in that effort?

Governor LEAVITT. Senator, I must confess that some of the lessors of the War of 1812 that you alluded to, I had missed. But I

did not miss your great enthusiasm for the Great Lakes initiative,

and I must confess that your enthusiasm has affected me with

some interest and you have caught my imagination, as well.

I look forward to learning more about this. It seems to me that

this is the kind of regional collaboration that, in fact, has great

promise. I have had some experience in regional collaborations, and

I am hopeful that I can bring some of that to add to your enthusiasm and that great progress could be made there.

Senator VOINOVICH. Well, as you recall, when I was chairman of

the Governors, we created that task force with the Governors to

work with Canada. It seems to me that we are going to have a new

Prime Minister of Canada taking Gratien’s place. It would be wonderful, I think, if our President and the new Prime Minister could

make the comprehensive restoration of the Great Lakes something

that both of our countries devote themselves to. I think I have a

couple more minutes.

Governor LEAVITT. Could I just mention one thing; not to impose

on your 2 minutes? But in my role as a Governor, at least once and

often twice a year, we meet with the Premiers of the Provinces of

Canada that border the United States and discuss these kinds of

issues.

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I think this is the kind of regional issue that not only could use

the participation of the National Government of Canada and the

United States in the form of the Environmental Protection Agency

and others, but also the provincial governments there.

Senator VOINOVICH. Thank you; I would just like to say that you

are going to have a real problem in this committee and in this Senate with the whole issue of burning of coal. I would like to make

very clear to you, as the Governor of the State of Ohio, that I was

very concerned about it. There, in my opinion, have been environmental groups and other well-meaning people that want to shut

down the burning of coal.

I want you to understand that from my perspective, if you shut

down burning of coal and force our utilities to go to natural gas,

you have killed manufacturing in this country.

We are in dire, dire shape today, as a result of the fact that we

have not harmonized our environmental and our energy needs in

this country. We are having businesses leave the State and go out

of business, and we have lost about 2,300,000 manufacturing jobs

in this country.

I would hope that you will have the courage to raise the issue

of many of these environmental policies and how they impact on

the economy of the United States of America, because we are in

trouble right now.

Governor LEAVITT. I acknowledge your comments, Senator. I

mentioned earlier that in my State we have an energy policy that

calls for the balanced use of various fuels, recognizing precisely

what you have suggested.

Senator VOINOVICH. Senator Wyden?

Senator WYDEN. Thank you, Mr. Chairman; let me go back to the

New Source Review rules, Governor. Because I am struck by the

fact that your man in Utah, your head of the department, he

creamed these rules. I mean, he said, and I will just quote here,

‘‘The proposal makes it worse. It creates more bureaucracy, cost,

and uncertainty, with no proven environmental benefit.’’ Now this is not some stark raving, wild-eyed environmentalist.

This is your man saying that these proposals are a turkey.

Why not just freeze those rules so as to address the concerns that

went out on your letterhead, and the kind of concerns that other

States are giving around the country? Why not freeze those rules,

and I would like to know, if you would this morning, say you are

willing to consider freezing these hugely important environmental

protection rules so as to address the concerns that your State, my

State, and others have made?

Governor LEAVITT. Senator, Mr. Sprott, who is the head of air

quality in Utah, made thoughtful comments in a very colorful way.

Senator WYDEN. That is for sure.

Governor LEAVITT. I will tell you that they were made in March,

as a request of the Administration, I understand. In going back to

look, all of his recommendations were incorporated.

Senator WYDEN. You are saying that he now supports the Administration’s proposal?

Governor LEAVITT. Yes.

Senator WYDEN. And other States do? Because that is certainly

not my understanding.

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Governor LEAVITT. Senator, I did have a chance to do two things,

obviously recognizing that we might have a chance to talk about

this.

Senator WYDEN. The majority of States are opposed.

Governor LEAVITT. Well, I cannot speak for the States. I am just

telling you about my experience with Mr. Sprott, who I have high

regard for. He was asked for recommendations and made them. In

going back and looking at the rule, after the comment period, I am

told that they were incorporated.

Senator WYDEN. Well, a majority of States remain opposed to the

Administration’s position. I think the other aspect of this is the

General Accounting Office said that the judgments were made essentially on the basis of anecdotes. I am curious whether you think

that is a way to bring about the best science approach that you

have been talking about this morning.

That is, again, not the judgment of wild-eyed environmentalists.

That is the General Accounting Office. It issued a report that said

that the New Source rules came about through anecdotes. Is that

your notion of best science?

Governor LEAVITT. Senator, best science is clearly our objective.

I am not familiar with that report, other than to say this. My objective is to bring about clean air and I know that is yours.

In my observation and conversations with many State regulators

I mentioned, and I think you may have been out, that they refer

to the manuals as the puzzle book, because they have been so complicated.

The first and foremost thing that Mr. Sprott indicated in his letter was how much the rule needed to be remodeled in a fashion

that was more ascertainable as to what should apply and what

should not. Not only was the rule put into place, but it was my understanding that his recommendations were incorporated.

Senator WYDEN. The States are very unhappy with respect to the

consultative process with the Environmental Protection Agency.

You look, for example, at the Wetlands Rule. Something like 39

States said that they oppose the Administration’s approach with respect to rulemaking on wetlands. What would you do differently to

give the States a bigger role in making sure they are heard on environmental policy?

Governor LEAVITT. Senator, I, of course, come to this, having led

a State for 11 years. I recognize that my perspective will have to

be somewhat different, now that I would have a National role. But

my roots will not change in the sense that I believe that we need

National standards, but you have to have neighborhood solutions.

The whole idea of managing for results, taking each jurisdiction

one at a time, I think that kind of sensitivity will clearly appeal

to States, because they want clean water. They want clean air.

They want to protect the land. They want to do it in a way that

makes sense and meets the standards.

It is my firm belief that by negotiating partnerships, by clearly

stating our objectives, by working together in a collaborative way,

we will be able to achieve that.

I have worked enough collaborations to know that collaboration

does not eliminate disagreement. It does not eliminate litigation. It

mitigates it, but it does not take away the hard decisions. It someVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6601 92385 SENENV1 PsN: SENENV1
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times makes them better accepted, but we will still have to work

together in a collaborative way, recognizing and realizing the respective roles that we have in this system of government.

Senator WYDEN. Well, what we are seeing in terms of the collaborative process again is not what the Western Governors have

done in the past, and it is certainly not my understanding of the

Leavitt record.

As you know, I am very concerned about what is happening in

Portland. We are concerned about the sewer overflow situation,

where they are doing somersaults to try to work an enforcement

agreement with the State and with all of you. It is being honored

more in the breach than in the observance.

Are you willing to take a fresh look at that, so I can tell my constituents that perhaps the collaborative process, as you and Governor Kitsobera talked about over the years. might actually take

place on your watch?

Governor LEAVITT. Well, Senator, you were almost as colorful as

Mr. Sprott in your admonitions to deal with the Portland matter.

I hear you loud and clear, and look forward to an opportunity

where I can be better acquainted with it.

I realize that it is currently an enforcement matter, and not

something I should comment on; and frankly, not something I have

had much briefing on.

Senator WYDEN. How about making clean water a higher priority

in the Bush Administration? The Administration, if I could just finish this question, Mr. Chairman, has requested $3.7 billion for

water and sewer funding for Iraq. That is $1.5 billion more than

is in EPA’s budget for all of the water and sewer projects in the

country.

Do you think this would be a priority on your watch, to elevate

the importance of Clean Water; and particularly make it possible

for those of us who face folks in town hall meetings to say it is at

least as important as those projects are in Iraq?

Governor LEAVITT. Every American deserves to have clean water,

Senator. Particularly in some States, the water infrastructure may

be old and needing re-engineering because they have combined

them. I recognize the importance of the revolving loan funds. As

Governor, I have not only seen that demand, but know the competition for it and know how valuable those funds have been.

Senator INHOFE. Thank you, Senator.

Senator Allard?

Senator ALLARD. Mr. Chairman, I would like to follow-up a little

bit on my colleague from Oregon’s comments on clean air and what

you have been doing in Utah in your administration.

I have a letter here from Mark Sherbut. He is Attorney General

there. I assume that the Attorney General in Utah is an elected official in Utah. He is not necessarily a part of your administration.

He has his own separate constituency out here. Is that correct?

Governor LEAVITT. Well, we have spent a lot of time talking

about that.

Senator ALLARD. Well, I do have a letter here where he encourages the New Source Air Program reform because of some uncertainty and lack of specificity, and it creates confusion to States. Mr.

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Chairman, I would like to make this letter a part of the record, if

I might.

In this letter, he encourages EPA to expeditiously move ahead

with a substantive administrative reform to the Clean Air Act New

Source Review Program.

Senator INHOFE. Without objection.

[The referenced document follows:]

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Senator ALLARD. Also, Governor, I would like to give you an opportunity to finish my question. Remember, we were talking about

the Superfund sites and your experiences in Utah.

You were talking the Kennecott mine, and then our time ran out.

I wondered, you said that there is more that you wanted to say

about that. I want to give you an opportunity to talk more about

this.

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Governor LEAVITT. Well, Senator, this is one of the largest open

pit copper minds in the world. They have been mining it for over

100 years. As a result of mining practices at the turn of the century, there were two very dangerous plumes of pollution that were

moving toward the water supply in the largest population center in

our State.

The Department of Environmental Quality, in partnership with

the EPA, the current owner of the mine, and the water conservancy

district in that area were beginning to move toward a very serious

set of litigation and, in fact, we are in litigation. In 1995, we concluded we should move toward finding a solution.

The owner stepped up and wanted to come up with a plan. We

not only found ways in which to block that plume of pollution from

going toward the water, but began to clear it up, to the point now

that not only have we cleaned it up, but we have turned it to the

point that there are now 8,000 acre feet of water a year that can

be converted to the municipal systems of our State and meet all

Clean Water standards.

Here is the point, Senator, we did it without a dime of Superfund

money, and in a fraction of the time, because of a successful collaboration. There is a good example of how a collaborative circumstance did result in the best possible outcome, and we did it

in a way that did not impede our economic competitiveness as a

State.

Senator ALLARD. Thank you for that good story.

I would like to follow up on the ombudsman program. We found

the ombudsman to be helpful, particularly in cleaning up the

Shadduck waste site in Denver. There are other members on this

committee, I know, that agree that we need to continue that ombudsman as an independent office in the EPA.

Because of its critical role in the clean-up there at the Shadduck

Superfund site in Denver, I assume that you are familiar with the

success of the clean-up effort. Do believe that there is a way that

what we have done there could be a model for other clean-ups?

Governor LEAVITT. Senator, you have spoken with some passion

and persuasion about that site. I have not known much about it

until I had these conversations with you, but I look forward to

learning more about it. It seems to me that must be a good example of how it can be done well.

Senator ALLARD. Well, it is a site that did not start out very well.

Because of the ombudsman program, he helped us when we had a

recalcitrant Regional Director there that did not want to do anything toward the removal of the site, and was able to help the residents move forward with this issue.

The bottom line today is that there is clean-up happening and

material is beginning to move off the site. The Environmental Protection Agency has agreed that it is inappropriate to leave that

kind of a waste site, Superfund site right next to the river, and

that it should be cleaned out.

So that is happening. Right now, it is moving forward. If we run

into glitches, we will be contacting your office for some help. We

have not been bashful about that.

I see that my time is starting to run out. So before it does, it

does not appear as though I am going to be able to get back to ask

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you any further questions here on the committee, because I have

another meeting that is coming up. But I wish you well, and wish

you and your family both well.

Governor LEAVITT. Thanks for the graciousness that you have offered me.

Senator INHOFE. Thank you.

Senator Clinton?

Senator CLINTON. Thank you, Mr. Chairman.

Governor, on the continuing series of questions that I have about

the clean-up of lower Manhattan, I will submit those in writing to

you, as well, with the back-up data, because it is hard in the time

we have to cover that much ground.

But I want to focus on the issue of the EPA’s integrity that this

set of circumstances raises. You know, when you look at the Inspector General’s findings and, to me, they are conclusive; I know

the EPA was concerned that it put the EPA in a bad light. I, frankly, think it put the White House in a bad light, unfortunately. I

think the EPA tried to do what they thought was appropriate and

were overruled, to some extent.

But when you look at the September 18th statement that the air

was safe to breathe and realize it was not supported by the data

available at the time; and that the White House directed changes

in a number of September 2001 press releases, I think that is a

concern. Because it does fit into this pattern that we have that we

are not getting accurate information that not only we can rely on,

but more importantly, the American people can rely on; especially

when we need to trust our Government the most, as we do in these

times of challenge.

So I had asked the White House for an explanation; and as I

think I said to you in our meeting, I can fully understand why the

White House might have over-reacted or worried about panic at the

time. But enough time has now passed that I think it would be appropriate for the White House to try to rebuild that confidence that

we should be able to have in the highest levels of our Government

when it comes to health and safety.

But specifically with respect to your nomination, Governor, I am

sure you are going to have conflicts with the White House and with

other Administration officials about policy matters, and on every

decision, you may not always prevail; although I certainly hope you

prevail on more than less. But can I ask you, do you agree that regardless of the policy decisions, the EPA has a mandate to provide

accurate data?

Governor LEAVITT. Senator, it seems clear to me that the Environmental Protection Agency has the role of being able to assure

the air is clean and to be able to provide the best available data.

Senator CLINTON. Can you assure me that if you are confirmed,

you will fulfill this mandate to provide the public with accurate

data, regardless of what pressures you may face from the White

House or the Administration?

Governor LEAVITT. As I mentioned in our private meeting, Senator, I have no first-hand knowledge of any of the things that happened with respect to 9/11 or in Manhattan.

I have watched closely to see what I can learn from the circumstance; and as I indicated earlier today, one of the things I

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draw from this is, in my own mind, if I am faced with a circumstance, to make sure that people have the data, and that we

do the best we can to inform people of risks that are there. I feel

some confidence that those at the White House have every intention of being able to meet that mandate.

I recognize that there is a controversy going on over this right

now, but I will do my best not to find myself in any kind of similar

circumstance.

Senator CLINTON. Governor, I want to ask you also about the

Clean Water Act. We have a lot of water in New York. The proposed rulemaking that is now underway concerning the Clean

Water Act, do you support the proposed rulemaking to limit the

types of streams and wetlands, ponds, and other waters that are

covered by the Federal Clean Water Act at this time?

Governor LEAVITT. Senator, are you referencing specifically wetlands?

Senator CLINTON. Not only wetlands; it is the broader set of

issues concerning the scope of the Clean Water Act, which would

remove Federal protection; not just from millions of acres of wetlands, but also steams and lakes.

Governor LEAVITT. I am aware of these issues, but only in a most

general fashion. One of the areas that our State has worked hard

on is in doing the studies necessary to establish the total maximum

daily load, for example.

There are certain indentations in the land where there is no

water, but periodically there will be water. There is work to try to

figure out how to treat those indentations that have no water. I

know that is an issue, for example.

But fundamentally, our objective is to have clean water and to

find ways in which to gain compliance. But in the final analysis,

when all of the discussion has been held, if the water was cleaner,

I will feel as though we have succeeded. My objective is not to do

anything to weaken the law to do that. My objective is to find compliance and to find ways of collaborating to that end.

Senator CLINTON. Well, Governor, I have heard several of my colleagues refer to the fact that the latest trend report from the EPA

demonstrates the increasing good news about the air and the

water. I would only remind us that that is something that has happened over 20 to 30 years.

What we are seeing now, and part of the reason why we are

pressing this so hard on some many fronts, is a reversal of those

trends. No one argues that we have had some very good news over

the last several years, and I think it is due to the hard work of

Members of Congress, Administrations of both parties, that have

remained committed to the underlying fundamental mission of enforcing both the Clean Air and the Clean Water Acts. What we see

now are disturbing trends in the other direction. So I think that

has to be put into a larger context.

Finally, I think that you have a tremendous opportunity, should

you be confirmed. I am not lifting my hold, yet, but should you be

confirmed——

Governor LEAVITT. There was some optimism.

Senator CLINTON. Yes, I know; I could see it.

[Laughter.]

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Senator CLINTON. I hope to. I hope that we get the answers and

the actions that I think the people I represent deserve to have, so

that I could consider doing that.

But in any event, let me just quickly conclude, Mr. Chairman.

You have a tremendous opportunity, Governor, because of this continuing debate about carbon debate, because of the continuing concern about the changes in the New Source Review, to try to get

people at the table.

You know, I have spoken with a number of my colleagues on the

other side of the aisle. I think there are opportunities for us to

come to some resolution of these issues, but we have to have some

real leadership and not just proposals that frankly do not stand up

to any kind of scientific or expert analysis. Thank you.

Senator INHOFE. Thank you, Senator Clinton.

Senator Bond, did you say you would yield to Senator Boxer?

Senator BOND. I would accommodate my colleague from California.

Senator INHOFE. Senator Boxer?

Senator BOXER. Thank you; I am going to speak very fast, because I only have 4 minutes. I am going to lay out these questions,

and I am going to look forward to your answers.

There is an article in the ‘‘High Country News’’ about a situation

where people are claiming that the Fisheries Chief who assisted in

the case of this Wild Trout Disease was fired, along with 18 people

in his department. I would like you to respond to that in writing;

because I will tell you, it is so crucial. We do not want a message

to go out that employees who do their work are under some jeopardy. I just wanted to get your side of it, in writing.

Also, on mercury, which you probably are aware I was going to

ask you about this, it is a terrible toxin. Most at risk are children

and the unborn. According to the CDC, one in 12 women of childbearing age have blood mercury levels exceeding EPA safe levels;

and according to the New York Times, EPA canceled and slowed

down the rulemaking. I want to know if you will ensure that the

Agency moves forward and gets the rule this year; so if you can

write me about that.

Then I know you are a strong supporter of States’ rights. I wanted you to know that what is happening to us in California is there

may be a move to preempt us in terms of air pollution. So I wanted

to get your view of preemption issues.

Then Superfund, you mentioned you were very proud that you

had a site voluntary cleaned and you said it was collaborative. I

just want to make a very strong point to you, because Superfund

is very near and dear to my heart because I happen to have 100

sites in my State and we have 1,200 sites nationwide. There has

been a slow-down of clean-up to half of what it was under the Clinton Administration.

Now I strongly believe Superfund is a collaborative effort. Yes,

at the end of the day, if the people who are causing the pollution

will not cooperate, there is a right to go to court.

But I wanted you to know, I think with your leadership and

being a leader and bringing people together, we could move some

of this forward between the States, the local communities, the responsible parties, and get Superfund moving again.

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So I think it is really important, and I would like your opinion

on the Superfund fee that Senator Chafee and I are trying to reinstate. I will put all this in writing for you. You do not have to take

copious notes on it.

I want to know if you think carbon dioxide should be regulated,

because I am a little concerned about that issue, since the National

Governor’s Association opposes the Kyoto protocol and favors voluntary measures.

I wonder if you feel it is time we had some law, as Senator Jeffords has proposed and, I think, Senator Carper, as well, to actually clean-up carbon dioxide. It does kill people. It does hurt people.

It is causing our children to have higher levels of asthma.

Also, just in closing, I have a point that I talked to you about

when we had our one-on-one meeting. I have never had such a time

just getting information, and you pledged to me that you would

make sure that we did. So if you could just perhaps give that answer before my time runs out.

I will be asking you for information, because it is the only way

I can do my job. I represent 35 million people. That is a lot of people. I represent the fifth largest economy in the world. I have to

have information for my industries, for activists, for my community

leaders, for my nonprofits.

So will you pledge that even if we do not agree at the end of the

day, that we will not have to resort to subpoenas, which we almost

did twice here, because we could not get information on NSR or

Superfund. So could you assure us that you will try to do your best

to make information available to us on a timely basis?

Governor LEAVITT. Senator, it is my desire to work in a collaborative, straight-forward and transparent way with you. As I have

indicated a couple of times today, there are historic tensions between branches of Government that I will have to learn to navigate, and I will do my best within those confines.

Senator BOXER. Well, I look forward to answers before our markup, Mr. Chairman, because they are important.

Governor LEAVITT. I will be happy to respond.

Senator BOXER. I did not get a chance to show the 50 roll-backs,

but I am going to send them over to you. I have got them. We are

going to send them to you, to see the 50 roll-backs. Thank you so

much.

Governor LEAVITT. Thank you, Senator Boxer.

Senator CORNYN. Mr. Chairman, parliamentary inquiry. The

record remains open for questions that we might want to submit

to Governor Leavitt in writing, does it not?

Senator INHOFE. It will remain open, and we are going to have

a business meeting a week from tomorrow, at which time we will

report Governor Leavitt. The record will remain open until that

time.

Senator CORNYN. Thanks very much.

Senator INHOFE. I am sorry, follow-up questions, is that what

you are asking? That will remain open until noon tomorrow.

Senator CORNYN. Noon tomorrow?

Senator INHOFE. Yes.

Senator Bond, you have been very patient and you have not been

heard, yet. You are recognized at this time.

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Senator BOND. Thank you very much, Mr. Chairman; my apologies to you and the members of the committee and the others. I

found myself in a natural disaster this morning, trying to get to

work, as several people may have. We have certainly cured the

drought problem, at least in this part of the United States. I have

spent more than enough time on the road.

I apologize for not being here earlier, and also we had a very important intelligence hearing. But this is an extremely important

hearing, and I thank you, Mr. Chairman, for holding this hearing

and being ready to move the nomination of Governor Leavitt to

head the Environmental Protection Agency.

I think the President has nominated an excellent candidate for

EPA. As a former Governor myself, I look forward to the leadership, management skill, and State perspective that the Nation’s

longest-serving Governor will bring EPA. I will warn you, Governor, that things will change. It is a lot different from running a

manageable State to running a Federal agency.

But from what I have seen of Governor Leavitt’s record, he

stands for the Environmental Principles that we desperately need

here in Washington: collaboration, not polarization; national standards and neighborhood solutions. We should reward results, not

programs. We should put science at the lead for the facts and do

the process for priorities, and set markets before mandates.

Governor Leavitt has a record of environmental achievement to

match his environmental vision. The air in Utah and in the West

is cleaner and clearer because of the work Governor Leavitt has

done.

All of Utah now meets all Federal air quality standards. Visibility over the Grand Canyon has improved after the Governor’s

role with the Western Regional Air Partnership. Utah is among the

Nation’s cleanest watersheds. I did not know you had any water;

no, excuse me.

[Laughter.]

Senator BOND. But the watershed is clean. I know there were

real problems in Utah, seriously, and it has improved dramatically

during the Leavitt administration.

Seventy-three percent of Utah’s streams currently meet Federal

water quality standards, compared to 59 percent 10 years ago and

60 percent, nationwide. That is a pretty good record.

Utah’s most environmentally sensitive land is better protected

because of Governor Leavitt’s service. Governor Leavitt helped protect 500,000 acres of land in national parks, monuments, recreation

areas, and wilderness areas.

Unfortunately, Governor Leavitt, you are entering a job in a city

where political opponents try to use the environment for political

gains. Environmental and health benefits from drastically reduced

levels of nitrous oxide and sulfur oxide, dioxide, and mercury pollution in the President’s Clear Skies proposal are being held hostage

by those who want to use global warming as a political issue

against the President.

I would remind my colleagues, as I recall, I and 94 other Senators voted unanimously to oppose the so-called Kyoto Agreement.

That agreement would have put stringent economic burdens on the

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United States, while leaving major polluters like China and India

uncovered by the terms.

Environmental benefits, improved energy security, more efficient

and reliable electricity protection, and New Source Review improvements are being attacked by the President’s political opponents.

Even some of my own modest, incremental suggestions for improved environmental collaboration and process in the Transportation Bill to get the environmental concerns into the bill earlier

were mis-characterized and leaked to the press and criticized by

stakeholders with whom we were trying to work, resulting in significant delays in moving forward on the Surface Transportation

Bill.

In addition, there has been reference made to the Clean Air Act

and California’s efforts. For the record, the Clean Air Act has an

exemption and says that States cannot regulate small engines

under 175 horsepower used for off-road, for construction and agriculture.

The proposal, which leads down the road requiring catalytic converters on everything from lawnmowers to leaf blowers to chain

saws has tremendous fire dangers. It also would ship roughly

22,000 American jobs off-shore, and require that these snow blowers and leaf blowers and chain saws with catalytic converters be

made in China.

We believe that there is a much better way to do that, to help

California meet its clean air goals. We will provide that to the

State of California, the Air Regulation Board, and we will hope

that they would not impose the tremendous burden on workers in

the United States and dangers when there are better means of

achieving the environmental goals.

But President Bush is maintaining a strong commitment to the

environment and the Environmental Protection Agency. In the face

of funding a war on terrorism, growing deficits, and record tax

cuts, President Bush has requested more money for EPA.

I happen to know a little bit about that, chairing the Appropriations subcommittee. President Bush’s $7.6 billion request for EPA

is more than the previous President requested for EPA in his last

budget.

Each year, President Bush has sent us larger requests for EPA.

President Bush’s $431 million request for EPA enforcement is the

largest request for Federal environmental enforcement funds in our

Nation’s history.

The President is doing good things for the EPA and the environment. I look forward to your good leadership in EPA. I know that

we can continue to make progress working together, using the collaborative processes, the market processes that you have emphasized, enforcing the law where people refuse to take opportunities

to move forward. I urge my colleagues to allow a vote on your nomination without delay.

Senator INHOFE. Thank you, Senator Bond.

I think perhaps as is often the case, we overlook the most significant parts of hearings. I think we did this time. I do not believe

you have introduced your wife, yet.

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Governor LEAVITT. That would be a pleasure for me to do, and

it would probably keep me out of trouble at home, too, thank you.

I am very pleased to have my wife, Jackie, with me today. She has

been heroic through all of this.

Senator INHOFE. It is nice to have you here, Jackie; and it will

not always be this way.

[Laughter.]

Senator INHOFE. Now I have to have a unanimous consent request. If there is no objection, I would ask that the staff have time

and authority to make conforming and technical corrections to the

Highway Extension Bill.

Let us do this; we will wrap this up. As I say, we will go ahead

and have a business meeting a week from tomorrow.

Senator Jeffords, if you would like to have some time, feel free

to do so for questions.

Senator JEFFORDS. Yes, I certainly do. Governor, it is great to be

here with you. I am a great States-righter. I had to take the State

of New York to the United States Supreme Court to make them

obey the environmental laws in Lake Champlain. So we are very

sensitive in Vermont about making sure that we are not imposed

upon.

Do you believe that the States should be allowed to have and enforce environmental laws that are more stringent than the Federal

laws?

Governor LEAVITT. I do, and in most cases, many cases, they do

now.

Senator JEFFORDS. Will you ensure that the water quality impacts are fully evaluated for regulations that are issued under the

Clean Water Act?

Governor LEAVITT. I am not sure I understand fully, Senator, the

impact of that question. Obviously, the goal for me, if I am confirmed by the Senate, is to assure that not just the water is cleaner, but the air is cleaner, as well; and that we make substantial

progress in the environment during the course of my service.

Senator JEFFORDS. I will take that. One of the critical issues you

will face as EPA Administrator is securing the Nation’s chemical

plants. This is one I am deeply concerned about. The stakes are

very high.

In March of 2002, the U.S. Army Surgeon General warned that

a terrorist attack on a chemical plant in an intensively populated

area could kill up to 2.4 million people.

Although this committee unanimously passed the bill last Congress, and although the Administration has called for legislation,

the issue languishes due to the influence of relatively few plant

owners who fear regulation. So the Administration has not pushed

for us. As Administrator, will I have your commitment to press for

legislation in this area?

Governor LEAVITT. Senator, I currently serve as a member of the

Homeland Security Advisory Council, which was previously the

President’s Homeland Security Advisory Council. Much of that

came as a result of my experience as the Governor of Utah during

the 2002 Winter Olympic Games.

That was the first gathering of the world after 9/11, and it became very clear at that moment that Homeland Security was evVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6601 92385 SENENV1 PsN: SENENV1
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eryone’s second job. It is going to be part of virtually every industry. It is going to be part of every Government agency, State and

local, and they have to be coordinated. It would be my intent to assure that the Environmental Protection Agency played its role in

meeting that obligation.

There was a moment during the 2002 games when for about 3

hours, we thought that the Salt Lake International Airport had

been infected with anthrax. I had sitting at my table some of the

best professionals in the world. That was a day I was glad to have

the EPA there.

We were able to make a decision that needed to be made in a

short period of time as to whether to close the international airport

and throw the Olympics into a much different event than it turned

out to be.

I pledge to you that if I am confirmed that kind of experience will

be loaned, whenever necessary, whenever possible, to local officials,

to State officials, and to others, as we contemplate that very important part of our future.

Senator JEFFORDS. I would like to work forward with you on pursuing legislation in this area, to make sure that we do have the security in our chemical plants and things. I look forward to working

with you.

Governor LEAVITT. Thank you.

Senator JEFFORDS. EPA Administrator Whitman said that the

Federal Government should be ‘‘held to the same standards of environmental clean-up as the private sector.’’ Do you agree with this

statement; and if so, do you also agree that the military should be

held to the same standard as the rest of the Nation, with respect

to complying with environmental laws?

Governor LEAVITT. Senator, I do believe that the Federal Government and Federal agencies need to do their part and need to be

held to the same standards.

I have had substantial experience in working with various defense-related facilities. For example, Hill Field is a large maintenance depot that is in my State. We have a number of test and

training ranges, and I am quite familiar with those military missions, and the task of assuring that they can complete those missions.

The bottom line is, we all need to keep the law. I have found that

they are willing and, in many cases, exemplary in the approach

that they have taken to help us meet our various State environmental commitments.

Senator JEFFORDS. It seems very unlikely that the Administration’s multi-pollutant legislation will ever gain the kind of support

that other bipartisan bills have gathered. This is largely due to the

significant shortcomings in the Clear Skies.

In 2001 and in 2002, there were bipartisan discussions to achieve

a compromise, but we did not succeed, due to the White House

intervention. Would you be interested in putting the resources of

EPA to work and help us get a compromise bill that could pass a

committee in the Senate?

Governor LEAVITT. As I indicated earlier to you, I know that the

President currently has three legislative priorities; one of them

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being the Clear Skies. Frankly, it is something that I have some

passion for, because I have seen it work.

I am very hopeful that Clear Skies can pass, so that we can move

forward as a Nation in being able to achieve more environmental

progress at a faster rate, but do it in a way that is not going to

compromise our ability to be competitive in the world economically.

Senator JEFFORDS. May I ask unanimous consent to place Senator Lieberman’s opening statement in the record?

Senator INHOFE. Without objection, so ordered.

[The prepared statement of Senator Lieberman follows:]

Thank you, Senator Jeffords.

I am going to conclude this, but before I do, I would ask Senator

Bond, since he was not here for the round of questioning, if you

had any other remarks that you wanted to make before I do so.

Senator BOND. Thank you very much, Mr. Chairman. I have had

the opportunity to discuss many of these issues with the Governor.

I found his responses to be both knowledgeable and encouraging for

his work on the environment, so I have no further questions for

him; thank you.

Senator INHOFE. Thank you, Senator Bond.

Senator JEFFORDS. I have just one request, Mr. Chairman.

Senator INHOFE. All right, yes, sir.

Senator JEFFORDS. In addition to the questions that my staff will

draft for submission by our deadline for the hearing follow-up, I

now ask unanimous consent to include in the record the following

documents addressed to me that contain questions for Governor

Leavitt from Senators Corzine, Stabenow, Congressman Stupak,

the People for Ethical Treatment of Animals, and the Center for

Progressive Regulation. I also expect, as is our usual practice, that

the record will remain open until such questions are answered.

Senator INHOFE. First, you said statements that were made as a

part of the record, which there would be no objection to. But then

when you have questions, you are talking about Congressman Stupak and other people. I might find objection to that. What is your

intent?

Senator JEFFORDS. Well, we want to make sure that there are

opportunities for people to be able to get information to make their

judgment on how to support or non-support.

Senator INHOFE. Would it be your intention not to have a business meeting until these questions are answered?

Senator JEFFORDS. No, I do not believe so. I do not intend to

have any delay. It was just to make sure that these questions get

answered and can be made a part of the record.

Senator INHOFE. The chair would object to those that are not

members of the committee, because it is the tradition of the committee only to have questions responded to from the members of

the committee. Most of yours are not, and I have no objection to

that. But as far as some of the other organizations, that is not a

part of this hearing, and I believe it is legitimate.

Senator JEFFORDS. Governor Whitman, I know, she did allow

that; but I will not pursue this, other than to expect that we can

cooperate with Governor Leavitt.

Senator INHOFE. I am sure we will, Senator Jeffords.

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Senator JEFFORDS. We will provide them to him and he will

make his discretion.

Senator INHOFE. For my final comments, let me just mention, it

has been brought up a few times today about the World Trade Center. There has been, and I am at this time releasing, the Majority

staff report on the I.G. investigation into the World Trade Center

air quality issues. I ask that it be made a part of the record.

Senator JEFFORDS. Without objection.

[The referenced document follows.]

Senator INHOFE. One of those statements in there is quoting the

Inspector General, and he said, ‘‘In regard to the monitoring data,

we found no evidence that EPA attempted to conceal data results

from the public.’’ The OIG also stated that was neither a conspiracy

nor an attempt to suppress information.

The reason I asked the last question, Governor, of you was that

sound science is something that is so important. It is to this committee; it is to me, anyway, and I know that it is to this Administration. You have been asked several questions about CO2, about

the fourth pollutant, as some would like to refer to it as.

I would only like to say that this is a huge issue, and it is one

that I am going to ask you to look at all of the impacts, while you

are thinking about this issue.

Horton Econometrics Forecasting Associates, and that is Horton

School of Economics, came out with an analysis as to what would

happen in America if the Kyoto Treaty were complied with. It

would cost 2.4 million U.S. jobs, and it would reduce GDP by 3.2

percent, or around $300 billion, which is more than we spend on

primary and secondary education, combined.

They said because of Kyoto, American consumers would face

higher goods, medical, and housing costs, and then it went on to

quantify. They said, at the same time, an average American household of four would see its real income drop by $2,710 in 2001 and

each year thereafter. Under Kyoto, energy and electricity prices

would nearly double, and gasoline prices would go up an additional

$.65 a gallon.

Now it goes into a lot more detail than that, and I think you are

probably aware that the American Black Chamber of Commerce

and the Hispanic Chamber of Commerce have come out and quantified the number of jobs that would be lost, some 511,000 jobs that

would be Hispanic workers; 864,000 jobs of black workers; and they

are very concerned about this issue.

So it gets down to looking at the science. I would suggest to you

that recently, James Schleschinger, former Energy Secretary for

the Carter Administration, came out with very strong statements

that the science is certainly not settled.

Dr. Richard Lindsen, an MIT scientist, and he was a former

member of the National Academy of Sciences, said there is a definitive disconnect between Kyoto and science.

Should a catastrophic scenario prove correct, Kyoto would not

prevent it. Dr. Frederick Sites, a past-president of the National

Academy of Sciences, and he is a Professor Emeritus at the Rockefeller University., compiled the Oregon petition, which reads as follows:

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‘‘There is no scientific evidence that human release of carbon dioxide, methane, and other greenhouse is causing, or will in the

foreseeable future, cause catastrophic heating of the earth’s atmosphere and disruption of the Earth’s climate.’’ This goes on and on; and, in fact, over 4,000 scientists, 70 of

whom are Nobel Prize winners, signed the Heidelberg appeal,

which says there is no compelling evidence that exists to justify

controls on greenhouse gases.

Finally, the Harvard/Smithsonian study compiled and examined

results at more than 240 peer reviewed papers, published by thousands of researchers over the past four decades. This is the most

comprehensive study of climate change ever, and they say that

there is no convincing evidence.

I would just say that we are dealing with something that is highly emotional, and very likely, this could be maybe the greatest hoax

ever perpetrated.

That is why it is important, Governor, in the position that you

will be taking, that you look at the scientific evidence on all these

decisions, as well as this one.

I appreciate very much your patience and your wife’s patience,

and we will now adjourn our meeting.

[Whereupon, at 12:30 p.m., the committee was adjourned, to reconvene at the call of the chair.]

[Additionals statements submitted for the record follow:]

STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE STATE OF FLORIDA

Mr. Chairman, thank you for calling this hearing today on what I consider to be

one of the most important jobs in the executive branch. I have reviewed Governor

Leavitt’s record of accomplishments in his current role as Governor of Utah. I am

pleased that he places strong emphasis on coalition building and consensus seeking.

I think these are the kinds of leadership skills that a successful EPA Administrator

must possess.

That said, I would like to express my concerns over what I deem an inherent conflict associated with the position of EPA Administrator in this Administration. We

have seen evidence that White House politics take precedence over the formulation

of data and the distribution of information. I strongly believe that this kind of political manipulation of scientific information is diametrically opposed to the mission

of EPA—to protect the public health and human environment. How can EPA protect

American’s and the environment in which we live if EPA cannot make decisions

based on sound scientific data?

I am encouraged by Governor Leavitt’s enthusiasm for his nomination to this position, and I hope that he will demonstrate to this committee that he will be the voice

for science over politics and full disclosure of facts over secrecy.

Finally, I hope that Governor Leavitt will provide this committee with real answers to the questions posed on all of the important issues before the EPA. While

I recognize that the Governor has a steep learning curve, I must state clearly that

answers that promise only to investigate and learn about the issues will not satisfy

me. Nor should these kinds of answers satisfy this committee. Furthermore, I hope

that you, Mr. Chairman, will respect the rights of committee members to get full

answers to our questions before we are expected to vote on Governor Leavitt’s nomination.

Governor Leavitt, I look forward to your testimony. I plan to submit the majority

of my questions to the record, and I will look forward to your answers.

Thank you, Mr. Chairman.

STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR FROM THE STATE OF

CONNECTICUT

Mr. Chairman, in considering Governor Leavitt’s nomination to serve as Administrator of the EPA, I seek answers to questions not only about his qualifications, but

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also about his commitment to the Agency’s independence and his allegiance to President Bush’s failed environmental agenda.

I posed many of these questions in a letter to the Governor weeks ago, and I was

deeply disappointed to learn last Tuesday that he refuses to answer them. Donald

Rumsfeld answered my questions prior to his confirmation hearing. Tom Ridge did

the same. Why will Governor Leavitt not answer them?

I suspect the White House issued the gag order. It would certainly be consistent

with its pattern of information control on the environment. In-a practice reminiscent

of the Soviet Union, the Bush Administration has systematically suppressed scientific and public health information that conflicts with its polluter-friendly environmental agenda. It has routinely dodged, ducked and denied legitimating questioning—and has shown nothing but favoritism for private interests and nothing but

contempt for the public interest on the environment.

Why does the White House reject clear evidence that global warming is a real and

growing threat to the environment? Senator McCain and I, who are sponsoring legislation on this matter, demand to know.

Why did the White House delete the EPA’s warnings about air quality and public

health at and around Ground Zero in the aftermath of September 11th, endangering

the lives of thousands of survivors? Senator Clinton and I, who have pressed the

White House for answers, demand to know.

Why will the White House not disclose information regarding the public health

impacts of its recent rollback of Clean Air standards? Senator Jeffords and I, who

raised these concerns over 2 years ago, demand to know.

To each of the pressing questions, we have gotten nothing but silence.

This systematic stonewalling by the President has not only destroyed his credibility on the environment, it has covered-up policies that destroy the environment

itself. It is time the Administration come clean on its environmental record—and

cleanup its act.

And it is time the EPA assert its independence and resist the White House’s efforts to control it. I cannot in good conscience support Governor Leavitt’s nomination

until I am convinced that he will uphold the EPA’s mandate to be an independent

advocate for protecting the environment. And I will block Senate consideration of

his nomination unless I am given assurances that he will do this.

America’s elected leaders and public officials have a moral responsibility to protect

public health, to preserve our environment, and to provide future generations with

a world better and cleaner than we . found it. I am committed to meeting this responsibility; President Bush is not. The question before is where Governor Leavitt

stands.

STATEMENT OF GOVERNOR MICHAEL LEAVITT, NOMINATED TO BE ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. Chairman, I am honored that President Bush has nominated me as Administrator of the United States Environmental Protection Agency. I sit before you today,

respectful of your role and ready for your assessment of my fitness to serve.

In the weeks leading up to this hearing, I have had the opportunity to visit with

nearly all of you. You have been candid and generous with your time and insights.

Thank you and the committee staff for the courtesies extended.

Our conversation today will likely have two components: my fitness to serve as

Administrator of the United States Environmental Protection Agency, and the policy

differences that exist on environmental issues. As a Governor who has served for

more than a decade, I understand the complexities, emotions, fears and conflicting

values that are fundamental to environmental issues. I’ll do my best to be responsive to your questions and sensitive to our differences.

When President Bush announced my nomination, I described an experience I had

at the Grand Canyon at age eight. My family arrived at the south rim at twilight,

just in time to see a giant shadow creep across the canyon.

Thirty-six years later, I stood at nearly the same spot, but as the Governor of

Utah. This time, a brown haze stretched across the sky that had once been so clear.

I was there to co-lead a commission, charged with rescuing that view.

The Grand Canyon Visibility Transport Commission was created under the Clean

Air Act. We were to convene States, tribal nations, Federal agencies, local governments, private industries and environmental groups to protect the air over this

international treasure. If we failed in 5 years, the law made clear the Federal Government would take on the task.

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Four years passed and nobody budged. Every State, tribe and local government

protected its turf. Industry and environmental groups traded barbs; it looked to me

like the whole thing would implode.

As the 5-year deadline approached, slowly the group began to unite. Serious problem solving and collaboration began to occur, and, ultimately, a 20-year plan was

developed. We developed a way for every State to design its own plan that met national standards. Importantly, we agreed that if a State failed to meet the standard,

a mandatory market-trading system would kick in.

This experience taught me that enforceable national standards can be a catalyst

to bring parties together, but national standards work best if participants are allowed to use innovative neighborhood strategies.

The Grand Canyon effort changed environmental problem solving in the West and

led to the creation of the Western Regional Air Partnership, a collaboration of three

Federal agencies, 13 States and 13 tribal nations. We now have a region-wide plan

for SO2 and we’re closing in on a NOX agreement.

The Western Regional Air Partnership has taught me that environmental solutions (just like environmental problems) transcend political boundaries.

These experiences in cleaning up the air in the West, and many experiences since,

have caused a well-defined environmental philosophy to crystallize in me. The philosophy is called ‘‘Enlibra.’’ The word is derived from Latin roots and means ‘‘to

move toward balance.’’ Balance, in this context doesn’t mean splitting the difference,

but rather to apply the collective wisdom of the productive middle ground to make

environmental progress.

Former Governor John Kitzhaber (D-Ore) and I, coined the word Enlibra as we

compared experiences. We were in different political parties and dealt with different

environmental problems, yet both of us saw environmental disputes dividing our

communities, diminishing our nation’s economic competitiveness, costing the public

millions of dollars in legal battles and taking decades to resolve. We concluded there

has to be a better way.

The two of us were joined by another dozen Governors and invited hundreds of

environmental practitioners of every persuasion to help capture the principles that

lead to balance: balance between this generation and the next, balance between sustainable environments and sustainable economies and balance among regions.

The outcome was a simple set of beliefs, a philosophy, a shared doctrine of environmental management.

For example, one of the principles is ‘‘Markets before Mandates’’—a belief that

people move farther and faster when they move willingly. Another is ‘‘Reward Results, Not Programs’’—we should value and measure improvement, not the rote adherence to regimen.

A story illustrates another principle of Enlibra: ‘‘Collaboration, Not Polarization.’’

I’ve been party to hundreds of environmental cleanups, including dozens of Superfund and Brownfield projects. One I’m especially proud of occurred in the Salt Lake

metropolitan area and is the largest mine-related water reclamation project in the

history of the United States.

Groundwater contamination from the Kennecott Copper Mine threatened the

water supply of Utah’s population center. The State of Utah worked with Kennecott,

the local water district and the EPA to organize a remediation plan that will cleanup the groundwater and provide 8,000 acre-feet of drinking water per year. It was

accomplished without a dime of Superfund money and in a fraction of the time it

would have taken if it had become a Superfund site. It was a great collaboration,

and it occurred because well-meaning people (industry and regulators alike), joined

together to solve a problem in a cost-effective and timely way. This was Enlibra in

action.

Every significant step of environmental progress I’ve been involved in has been

a product of collaboration. Collaboration does not eliminate litigation, but it can

minimize it. Collaboration doesn’t take away hard decisions, but it improves acceptance. Collaboration doesn’t lead to instant solutions, but it does accelerate progress.

Most importantly, first-rate collaborations are more than compromise; they are problem-solving expeditions that penetrate the fortress of polarized extremes.

Collaborations always have critics, cynics and saboteurs. They regularly break

down and often fail, but those that break through become beachheads of innovation,

staging areas for progress, launching pads for new technology.

Moreover, successful collaborations restore people’s confidence in their government. They show we can do more than fight, that we can find common ground to

serve the common good.

I would like to share one more story that illustrates a principle of Enlibra. In February of 2002 it was the privilege of our country and my State to host the 2002

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Olympic Winter Games. Working with Federal and State agencies and volunteers,

the Salt Lake Organizing Committee set four environmental goals:

• Net zero air emissions,

• Zero waste,

• Complete compliance with all Federal, State and local environmental standards, and,

• The planting of 100,000 trees.

These became more than Olympic goals, they were national goals. Federal, State

and local environmental officials spent 7 years planning, preparing and training. In

the final execution we accomplished everything we set out to do.

What is the explanation for this success? I like to think it had something to do

with a largely emblematic, but meaningful symbol. A worker assigned to the Olympic environmental effort explained it to me:

Everyone on our team wore those funky purple Olympic coats. We had people

from the EPA and other Federal agencies working along side workers from State

and local government, private sector professionals and volunteers. We all looked the

same. Once we all wore the same color jacket nobody said, ‘‘that’s not my job.’’ It

was about getting the job done. We were Americans unified in a goal that enlisted

every spectator, every athlete and every vendor. We did it.

The Enlibra principle employed here is simple: Change a Heart, Change a Nation.

The key to environmental progress is not the Federal code alone; it’s our ethical

code. It is the aggregate of our individual commitment to care for this planet, to

protect our natural assets, to ensure that our citizens’ health and safety are protected.

In closing, I would like to express my admiration for the dedicated professionals

who work for the United States Environmental Protection Agency. Many in the

Agency have devoted their career to the noble pursuit of protecting our environment. In my nearly 11 years as Governor, I have observed their expertise and my

first priority, should you confirm me, would be to reach out and learn from these

dedicated employees and earn their trust.

Mr. Chairman, if confirmed, I pledge to you, the Senate and the American people

my full commitment that I will give this aspiration the full measure of my heart.

There will always be genuine disagreement, but my aspiration is to achieve unity

in our beliefs, so we can attain harmony in our purpose. I will listen to the views

of all stakeholders and all points of view. I will work to make environmental protection more than an Agency; I will make it an ethic.

Thank you.

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RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR INHOFE

Question 1. Governor Leavitt, I want to thank you for you assurances in our meetings that Tar Creek will receive the highest level of attention from the EPA. As we

have had many discussions to date and will have many more once you are confirmed, I would just like to get you on record to committing your highest level of

attention and involvement with the cleanup of the Tar Creek Superfund site in

Oklahoma.

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Will you commit to ensuring the health and safety of every resident in Tar Creek

is the top priority when making decision regarding Tar Creek?

Response. If confirmed, I can assure you that protecting the health and the surrounding environment of the residents of Tar Creek is a priority of the EPA.

Question 2. Will you commit to making the remediation of a Tar Creek a top priority for the EPA?

Response. If confirmed, I can assure you that the Tar Creek site will remain a

top priority for EPA.

Question 3. Will you commit to an open, honest dialogue with all residents and

officials involving EPA decisions and actions with regard to Tar Creek?

Response. If confirmed, I can assure you that EPA will continue its efforts to

maintain an open and honest dialogue with the residents and officials of Tar Creek.

Question 4. Over the last few years their have been innovative settlements in

Superfund that have used environmental insurance to expedited cleanup and protect trust fund resources. The Agency and DOJ have been reluctant to embrace

these innovative concepts. Will you direct Agency Enforcement staff to vigorously

explore these options and develop approaches that will enable this and other innovative tools to be used when it will expedite cleanups and protect the taxpayer?

Response. I am not familiar with the specifics of the environmental insurance settlements in the Superfund program. If confirmed, I commit to examining this issue

and to vigorously explore innovative tools to expedite cleanups.

Question 5. EPA had cited several aviation fuel providers for not having secondary

containment for their trucks. Aviation fuel providers were shocked at the application

of these regulations to their vehicles. It had long been the understanding of the industry that the secondary containment requirement of the SPCC rules did not apply

to aviation fuel trucks used on airports. This had been confirmed by approval of

many airport SPCC plans that do not address this requirement for aviation fuel

trucks. The aviation industry has sought to work with the EPA to provide the Agency with an understanding of the inappropriateness of imposing this requirement on

aviation fuel trucks, yet the Agency has been slow to respond to these concerns and

seems little interested in recognizing the unique nature of airport fueling operations. What steps will the EPA take to ensure that aviation fuel providers, particularly those at smaller non-commercial airports, are not unduly burdened by imposing secondary containment requirements on fuel trucks used only to transport and

deliver such products?

Response. I am not familiar with the specifics of the secondary containment requirements of the SPCC rules. If confirmed, I commit to examining this issue.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR VOINOVICH

Question 1. The 2000 Clean Water Needs Survey identifies $181.2 billion worth

of wastewater infrastructure needs nationwide, including over $8 billion worth of

needs in Ohio. Communities in Ohio and across the Nation are struggling to comply

with the mandates of the Clean Water Act. For example, the city of Akron has developed a $377 million Combined Sewer Overflow Long Term Control Plan. Unfortunately, there simply is not enough money available at the Federal level to help communities like Akron make the improvements necessary to protect public health and

the environment. Moreover, wastewater infrastructure investment would create

thousands of jobs nationwide. That is why I have joined many of my colleagues in

calling for increased funding for the Clean Water State Revolving Loan Fund program, which provides low-interest loans to communities for wastewater infrastructure projects.

Governor Leavitt, do you agree that we have a water infrastructure crisis in this

country? As EPA Administrator, what would you do to address this crisis?

Do you support increased funding for water infrastructure projects, including

loans and grants? Will you push the Bush Administration to include higher levels

of funding in its budget requests?

Will you work with the State of Ohio and cities like Akron to develop reasonable,

locally driven plans to address their unique water infrastructure needs?

Response. I know from first hand experience that our drinking water and wastewater infrastructure is aging and that local communities have significant needs. I

recognize the importance of the revolving loan fund and how valuable those funds

have been to local communities. I look forward to being briefed in detail on this

issue and to finding innovative ways to help address this problem.

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Question 2. The city of Akron and the Ohio EPA have worked in good faith to

produce a conceptual agreement for Akron’s Combined Sewer Overflow-(CSO) LongTerm Control Plan. The Ohio EPA has spent significant time and resources to reach

agreement with the City. That agreement will result in $377 million being invested

by Akron to correct its CSO problems. The City and Ohio EPA have agreed to a

30-year implementation plan, with most of the projects producing the most water

quality benefit being completed in the first 15 years. The City is moving forward

with its plan, and is designing the first major project.

U.S. EPA Region 5 has indicated that it may want to pursue a Federal consent

decree and require that the City complete the work in a shorter timeframe of 10– 15 years. The City does not want this to go to court. Ohio EPA would ask that the

Region give proper deference to the State of Ohio and not re-open this settlement.

Opening up the agreement and re-negotiating would not be fair to Akron and is not

an efficient use of resources. Ohio EPA would like to do a State consent decree rather than a Federal consent decree.

Governor Leavitt, do I have your commitment to work with the State of Ohio and

the city of Akron to resolve this matter in a manner acceptable to all involved parties?

Response. I am not familiar with the agreement you mention between the city of

Akron and the EPA, but if confirmed, I will certainly look into this matter.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR CHAFEE

Question 1. In the coming months, the EPW committee will once again turn to

the issue of reauthorizing funding for wastewater and drinking water infrastructure.

This year, EPA’s budget included a drop in funding for water infrastructure assistance. What are your thoughts on the role of the Federal Government in addressing

the nation’s multi-billion dollar backlog in water infrastructure projects?

Response. I know from first hand experience that our drinking water and wastewater infrastructure is aging and that local communities have significant needs. I

recognize the importance of the revolving loan fund and how valuable those funds

have been to local communities. I look forward to being briefed in detail on this

issue and to finding innovative ways to help address this problem.

Question 2. Environmental insurance products have proven to be extremely effective tools in facilitating faster and less costly cleanups of contaminated properties,

such as brownfield and Superfund sites.

a) How do you envision environmental insurance products being utilized to promote cleanups in the future?

Response. If confirmed, I am committed to an effective and efficient EPA Superfund and Brownfields program. I support the use of innovative tools to leverage Federal and private resources to clean up contaminated sites.

b) Are there impediments to the utilization of environmental insurance products

in the context of the Superfund program that would require new legislation?

Response. I cannot speak for the Agency on whether there is a need for Federal

legislation to address the use of environmental insurance in the context of the

Superfund program.

Question 3. In March 2003, the Phase II Storm Water Rule went into effect, requiring States and municipalities to begin developing and implementing management plans and general permits for stormwater runoff in urbanized areas. Last

year, this committee approved an amendment, signed into law as part of the Great

Lakes and Lake Champlain Act of 2002, that provided a 1-year fix for States to retain maximum flexibility in utilizing Section 319 funding for addressing stormwater

concerns.

a) What is the current status of a State’s ability to utilize 319 funds for Phase

II programs and activities? What will the status be at the start of the fiscal year

2004 budget cycle?

b) If Congress does not provide another temporary extension providing States

with flexibility to utilize 319 funds for Phase II activities, will 319 funds be eligible

for use in a Phase II geographic jurisdiction in the future?

c) During an EPA briefing with committee staff, the Agency indicated a list of

stormwater activities that would be eligible to receive Section 319 funding, including

‘‘monitoring and evaluation,’’ ‘‘information and education,’’ and ‘‘development of enforceable policies’’. As many of these items are specifically required to be included

in Phase II NPDES permits under the rule’s six minimum control measures, would

you identify what guidance the Agency is providing to States to clarify 319 uses as

they proceed with development and implementation of their Phase II programs?

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Response. I have not been fully briefed on the Clean Water Act’s 319 program.

In general, I believe that States should be given significant flexibility to solve difficult environmental problems.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR MURKOWSKI

Question 1. WETLANDS.—As my opening statement noted, 40 percent of Alaska—

some 174 million acres-is classified as wetlands, yet many of the areas are isolated

and not by any stretch of the imagination can they be called navigable. Despite the

opportunity created by the Northern Cook County case to address the jurisdictional

status of these areas, there has been no movement on the issue. Governor, can you

give us your views oh the appropriate role of the EPA in resolving this issue?

Response. Over the past 11 years, I have had many opportunities to work on

issues related to wetlands. I believe EPA has an important role in determining the

jurisdictional reach of the Clean Water Act. I have not been fully briefed on this

specific issue, but I will consider the input of States and others before determining

how to proceed.

Question 2. METALS AND MINING.—As I understand it, research under the auspices

of the EPA suggests that it may be more appropriate to use a dissolved concentration standard for metals found in the effluent from permitted mining operations,

rather than the current standard where the metals content is expressed in terms

of ‘‘total recoverable metals.’’ However, the EPA has yet to implement such a change

in NPDES permits. This is a serious issue in certain operations where river water

with naturally occurring mineral particles is added during treatment. Suspended

particles in river water may artificially inflate the effluent numbers unless the more

accurate standard is used. Isn’t this an area where sound science and common sense

should come together, and if so, what should be done to ensure that they do?

Response. It is my intention to ensure that Clean Water Act standards are based

on sound science and are translated into effective and enforceable permitting requirements. I am not familiar with the details of this issue, but I look forward to

learning more.

Question 3. EPA’S APPROACH TO TRIBAL GOVERNMENTS.—Alaska has 228 federally

recognized tribes—one half of the nation’s total. Yet only one Alaska tribe has a reservation providing it with a land base, and most consist of isolated and remote villages. This is distinctly different from the situation with tribes in the Lower 48

States with large land bases. EPA is currently forming policies and providing substantial amounts of grant funds directly to tribes in a manner that may be appropriate in the other States, but is not the best way to accomplish the desired results

in Alaska. For example, one standardized effort was to collect and recycle batteries

and other household hazardous materials. However, in at least one Alaska community, once such materials were collected, there was no way to recycle them onsite

and there was no way to pay the cost of moving them to another location, so they

were simply put into the local landfill—already substandard and in the process of

being closed. The result was groundwater contamination that was a greater threat

than leaving the materials alone. This could have been avoided had the Agency

worked more closely with State authorities and others, rather than applied a onesize-fits-all solution. How can this kind of situation be avoided in the future?

Response. I strongly believe that there needs to be continuous dialogue between

EPA, regions, States, and Tribes because a one-size-fits-all solution frequently is not

the best way to protect human health and the environment.

Question 4. WATER QUALITY/COASTAL WATERS.—One of EPA’s charges is to monitor

the state of the nation’s water resources. It has made it a priority to pursue an Environmental Monitoring Assessment Program which will characterize the state of

freshwater resources in 14 western States. However, Alaska, with 40 percent of the

nation’s surface water resources, has been excluded, and so has Hawaii. The Agency

has also funded a National Coastal Survey to examine the state of the coastline.

Alaska has close to 50,000 miles of tidal shoreline—well over twice what the ‘‘contiguous’’ States have in all. And yet EPA’s survey has been funded for only a small

part of the Alaska shoreline. What, in your view, is the best way to ensure that

Agency activities provide all States with equal treatment.

Response. I am not aware of the specifics of this issue, but if confirmed, I commit

to looking into the details.

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RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS

Question 1. According to Environmental Protection Agency (EPA) reports and

records, the State of Utah does not compare favorably to other States with regard

to certain aspects of its environmental record. For instance:

• according to a 2003 EPA report on Clean Water Act enforcement, Utah tied

for last place for performance in six key environmental indicators, and;

• according to the 2001 Toxic Release Inventory, Utah has the second highest

volume of toxic chemical releases in the country.

Are you satisfied with this performance? Would you expect to have a higher

standard for the nation’s environmental record?

Response Regarding Clean Water Act Enforcement

I inquired of the Utah Department of Environmental Quality and was supplied

with the following information. At the time the reports were pulled from the EPA

PCS data base, our data entry were incomplete; the missing data were flagged as

violations. Other data was incorrect. The data are now current, and Utah’s low rate

of noncompliance ranks with the 10 best States in the Nation.

I am informed that of the Kennecott violations cited in the report, five of the six

were not actual violations. Three of the reported violations were due to data entry

errors in PCS, one was a reporting error by the permittee, and one appears to be

a problem with the PCS system itself. The data base has been corrected. One item

which is flagged as a violation is for a compliance schedule being missed on a supplemental environmental project done by a third party. This information should not

have been coded into PCS in the first place and is not a Kennecott violation. The

reported 900 percent exceedance of mercury was due to an error in the coding of

the effluent limits. Their actual discharge did not exceed permit limits.

I am not satisfied with the difficulties in utilizing the data base, but I do support

the resulting information and the value of access to this information.

Response Regarding Toxic Release Inventory

It is important to remember that the releases identified in the toxic release inventory for Utah are releases that are approved under permits issued in compliance

with environmental laws. These releases are not violations of environmental law. It

is recognized that some industries, such as mining, must sometimes remove large

volumes of waste rock in order to reach the ore body. Since TRI requires reporting

of this removal of waste rock, the TRI will by law include large volumes of releases.

These are not measures of violations of environmental law or damage to the environment. They are a reflection, for example, of the actions necessary to conduct mining operations.

I am satisfied if the reporting is used in the context of TRI, not as a reflection

of perceived environmental violations.

Question 2. Governor, can you think of any reason why EPA should not provide

me and the 19 bipartisan cosponsors of the Clean Power Act with an estimate of

the benefits of our legislation, which we requested in May 2001, using the same

methodology used for the Administration proposal?

Response. As I stated at the hearing, if confirmed, it is my intention to work with

you directly, straightforwardly, and in a way that would supply us both with information needed to meet our common goal of clean air.

Question 3. In 2001, the Agency told industry that a ‘‘transport’’ rule would be

necessary to achieve attainment with the fine particle standard if multi-pollutant

legislation didn’t pass. Very little work has occurred since then to issue that rule

and multi-pollutant legislation is not moving. Will you use the Clean Air Act’s authority to propose a ‘‘transport’’ rule next spring?

Response. I am not familiar with the issues associated with EPA’s authority to

propose a ‘‘transport’’ rule. I look forward to learning more about this matter if confirmed as EPA Administrator.

Question 4. In June 2003, reports surfaced that Clean Water Act enforcement was

faltering under the Bush Administration. An internal analysis performed by the

EPA documented extensive non-compliance with discharge permits and a decline in

enforcement activities. For example, there was a forty-five percent decrease in EPA

formal enforcement actions between 1999 and 2001. Enforcement personnel have

been reduced by 100. What priority will you give enforcement at the Agency? What

specific changes will you seek, and how will you articulate the need for those

changes to the White House?

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Response. I am not familiar with the statistics you are citing. I look forward to

being briefed on the specifics of EPA’s enforcement program and what steps, if any,

may be necessary to strengthen that important program. Ensuring compliance with

the Nation’s environmental laws will be one of my highest priorities. It is my view

that enforcement is an important tool that can and should be used to promote compliance.

Do agree with current EPA policy that the general measures for the selection of

cases for criminal enforcement are the presence of significant environmental harm

and culpable conduct?

Response. If confirmed, I look forward to being briefed on the specifics of EPA’s

enforcement program and on what changes, if any, are appropriate.

Question 5. I understand that the American Trucking Association would like EPA

to delay the heavy-duty diesel engine rule for on-highway vehicles. The final rule,

which Governor Whitman affirmed in her first few months in office, has benefits

that significantly outweigh its costs. Would you commit to not delaying the implementation of that rule?

Response. I understand that there are tremendous health benefits associated with

this rule, and I look forward to learning more about it if I am confirmed as Administrator. I will review the heavy-duty diesel engine rule to ensure that it is being implemented in accordance with the requirements of the Clean Air Act.

Question 6. As you may know, the National Academy of Sciences has criticized

the Agency’s representation of uncertainty associated with environmental hazards.

The National Academy of Sciences has suggested that this representation should be

broader and include high and low levels of uncertainly. It seems logical that this

principle should extend to consideration of costs and benefits in Agency rulemaking

and when the Administration proposes legislation. And it should include a discussion of non-quantifiable costs and benefits. Would you agree?

Response. I am not familiar with the National Academy of Sciences’ evaluation

that you reference. If confirmed, I welcome the opportunity to learn more about the

Academy’s work and EPA’s current practices.

Question 7. There is a serious nationwide health threat posed by emissions of

toxic air pollution, specifically by those compounds characterized as ‘‘hazardous air

pollutants’’ (HAPs) under the Clean Air Act. EPA’s latest estimates of the exposure

and health risks associated with only 32 of the 188 HAPs identified by the Clean

Air Act provide some sobering figures. For example, EPA has established one in one

million as the generally acceptable level of risk for cancer. Yet more than 200 million people in the U.S. live in areas where the lifetime cancer risk from exposure

to HAPs exceeds 1 in 100,000. Approximately 3 million face a lifetime ‘‘cancer risk

of 1 in 10,000. These numbers are startling. As EPA Administrator, what action do

you expect to take to address this problem?

Response. If confirmed, I am committed to ensuring that EPA undertakes the actions necessary to protect human health and the environment from the risks posed

by hazardous air pollutants. Although I have not been briefed in detail about this

issue, I look forward to learning more.

Question 8. If confirmed, would you proceed with closed negotiations with the oil

industry on the definition of waters of the Untied States as part of the settlement

talks with the industry lawsuit on the Spill Prevention Control and Countermeasures Plan lawsuit?

Response. I am not familiar with this issue or with the settlement talks, and I

would need to know more about them to formulate an opinion.

Question 9. EPA’s data indicates that one in four people in America, including ten

million children, live within four miles of a Superfund site. Yet this Administration

has broken with the Reagan, Bush and Clinton Administrations in opposing the

Superfund polluter fees that pay for cleaning up abandoned sites. At the same time,

the pace of cleanups has plummeted during this Administration, from’ an average

of 87 annually during the last Clinton Administration, to only 40 over the last several years. What will you do to increase the pace of Superfund cleanups?

Response. If confirmed, I am committed to the effective and efficient use of funding for the cleanup of Superfund toxic waste sites to protect human health and the

environment.

Question 10. A recent GAO report confirmed that the Superfund trust fund, which

once contained over $3.6 billion, will be entirely exhausted in just a few weeks. The

full costs of cleaning up abandoned sites and for program administration—roughly

$1.5 billion—will now need to be borne by the general treasury Do you agree with

the Administration that polluters should not pay the cost of cleaning up abandoned

sites, and that instead such costs should be foisted on the average taxpayer?

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Response. I support the polluter pays principle, which I understand is the Administration’s position. Parties responsible for the toxic waste at Superfund sites are responsible for cleaning them up. If confirmed, I commit to continuing a strong EPA

Superfund enforcement program.

Question 11. Because of the expiration of the Superfund fees, the President has asked Congress to appropriate $1.1 billion dollars for the Superfund out of general

revenues in fiscal year 2004. Not only does this squeeze funding for other priorities,

but it makes it impossible for Superfund appropriations to keep up with inflation,

let alone what EPA has described as the ‘‘larger and more complex’’ sites that the

Agency is confronted with today. The inevitable result is a program that lacks adequate resources for site assessments, cleanup and administration, and that instead

relies on band-aid solutions. Without reauthorization of the fees, what specific steps

would you take as EPA Administrator to ensure that all stages of the Superfund

pipeline have adequate resources to fully safeguard communities?

Response. I am committed to getting the highest possible benefit for Superfund

expenditures. I will ensure that Superfund resources are used in an efficient manner for managing the ‘‘pipeline’’ of sites, and that the Agency uses the best science

and expert advice to identify and address priorities based on risks to human health

and the environment.

Question 12. EPA is reportedly considering creating a new Superfund milestone

to highlight the extent to which a cleanup improves ‘‘the potential land uses of a

Superfund site’’ for commercial or residential redevelopment. This raises concerns

that redevelopment’ pressures could compromise the protectiveness of a cleanup. As

Administrator, would you support the use of such economic criteria in Superfund,

a public health statute?

Response. I am unfamiliar with the issue referenced in your question, but I look

forward to learning more if confirmed. However, I can assure you that I strongly

support the Superfund program’s statutory mandate to protect human health and

the environment.

Question 13. The Superfund statute has an explicit preference for permanent

cleanups. Increasingly, however, cleanups are relying on ‘‘natural attenuation’’ and

zoning and other ‘‘institutional controls’’ to minimize exposure. This focus on shortterm costs leaves dangerous toxic waste in our communities and places the health

of future generations at risk. Do you agree with Superfund’s preference for permanent cleanups?

Response. I am unfamiliar with the issue referenced in your question. If confirmed, I commit that EPA will continue to follow the statutory requirements in the

Superfund law.

Question 14. Concerns have been raised that EPA, in implementing the new

brownfields legislation, is not requiring cleanups to be subject to any governmental

oversight, or to comply with established cleanup standards. Do you feel that this is

an appropriate use of Federal funds?

Response. I am unfamiliar with the issue referenced in your question. If confirmed, I am committed to the effective and efficient use of funds to clean up and

redevelop Brownfields properties.

Question 15. What type of advisory role to Congress do you believe the EPA has

as the nation’s in-house experts on environmental policy, and does that advisory role

apply to all Members of Congress and committees?

Response. I look forward to working with the committee and, within the context

of normal separation of powers constraints, will make every effort to provide you

with advice in a timely and comprehensive manner.

Question 16. In your decisionmaking at the Agency, what deference do you plan

to give to Agency legal interpretations and policies that have been in place for decades?

Response. As a general matter, I will consult with EPA’s staff with respect to

prior legal interpretations and policy positions taken by the Agency. I will take earlier decisions into account and consider them seriously when addressing new issues.

Question 17. Can you describe the manner in which the Agency uses section

309(c)(1) as a part of your enforcement program?

Response. My enforcement philosophy is that the first goal should be compliance.

It is our responsibility to move people toward this goal, and if there are those who

avoid or evade the law, the full weight of the EPA and the law should be used to

assure their compliance.

Question 18. During your confirmation hearing, you stated that every American

deserves clean water. EPA’s own gap analysis identifies a wastewater infrastructure

spending gap of $270 billion over 20 years and a drinking water infrastructure

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spending gap of $265 billion over 20 years. Please specify what you will do to address this gap. For example, will you ensure that the President’s budget for the next

fiscal year does not include the 40 percent cut in water infrastructure that we saw

in fiscal year 2004?

Response. I know from first hand experience that our drinking water and wastewater infrastructure is aging and that local communities have significant needs. I

recognize the importance of the revolving loan fund and how valuable those funds

have been to local communities. I look forward to being briefed in detail on this

issue and to finding innovative ways to help address this challenge.

Question 19. During your confirmation hearing, you spoke about the cleanup of

the Kennecott Copper Mine as an example of the Enlibra philosophy encouraging

cooperation. That cleanup has not begun yet, and the public had no role in the

‘‘technical review committee’’ that selected the proposed cleanup. Concerns have

been raised that the cleanup will result in pollutants being dumped into the Jordan

River and that the Great Salt Lake ecosystem may be threatened. How does the

public process at Kennecott compare to that required under Superfund?

Response. The public process for the Kennecott cleanup is very significant. Many

government and public representatives were involved in the Technical Review Committee. The proposed cleanup plan is the subject of extensive public hearings and

comment periods extending over several months. These are still ongoing. The discharge permit was also subject to a 30-day comment period for the public and to

review by EPA. The discharge permit is in full compliance with the Clean Water

Act and will protect the river and the lake.

Question 20. It is my understanding that today’s technologies are able to achieve

greater than a ninety percent reduction in mercury emission from some types of

coal. As Administrator, would you commit to finalizing, on schedule, a mercury

MACT standard that matches today’s maximum achievable control technologies?

Response. I am not familiar with all of the issues associated with this question

and, if confirmed, I would welcome the opportunity to learn more about the technologies available to reduce mercury.

Question 21. The Emergency Planning and Community Right to Know Act explicitly states that each toxic chemical that was ‘‘manufactured, processed, or otherwise

used’’ by a facility is subject to the reporting requirements of the Toxic Release Inventory program. EPA is developing a rule to clarify the extent to which toxic releases from mining activities, such as arsenic, lead and mercury, are subject to the

disclosure requirements of the TRI program. As Administrator, will you uphold the

law and require the mining industry to report all toxic chemicals that are ‘‘manufactured, processed or otherwise used′′-including the billions of pounds of toxics extracted as waste rock that often cause acid mine drainage and metal leaching?

Response. I am aware of the arguments regarding the listing of mining wastes

as part of the TRI and that EPA intends to clarify the rules. I am not familiar with

all the issues surrounding this specific topic.

Question 22. The Outdoor Industry Association is strongly considering moving the

Outdoor Retailer trade show out of Utah. The industry’s concern was Utah’s legal

settlement with the Department of Interior over wilderness inventory areas across

the West, and the settlement’s potentially negative impact both on ensuring the full

spectrum of quality recreation experiences for the 149 million Americans who participate in active outdoor activities, and outdoor recreation’s contribution to Utah’s

economy. The industry issued a statement in August saying they were ‘‘cautiously

encouraged’’ about your proposals to both protect Utah’s recreation gems and to

work to build a stronger recreation economy in Utah, but waiting to see if the proposals will be backed up with action and policy. Have there been any new developments on this issue since August? If so, what are they? Will your Administration

implement policies to back up your statements before you leave office if you become

EPA Administrator?

Response. The State of Utah desires to develop Utah as an outdoor recreation capital, protect access to premier outdoor recreation destinations and protect wilderness-quality lands in Utah. To this end, I have made a commitment to make the

outdoor industry in Utah a high priority industry (called an economic ecosystem in

Utah) and utilize the resources of the State to develop the industry. One component

of this development is the protection of outstanding natural areas that form the

backbone of the outdoor recreation industry. Part of this commitment includes formalizing the State’s interest by creating a task force to identify Utah’s premier outdoor recreation destinations, inventory the current land protections and recommend

changes to these protections, if necessary, to preserve Utah’s scenic assets. I have

also made it clear that the State of Utah desires to protect wilderness-quality lands

in our State.

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Question 23. Government projections expect carbon dioxide emissions from the

power plant sector to increase by about 46 percent by 2020. Do you support increasing emissions of greenhouse gases?

Response. A passive approach to address climate change is insufficient. The President has proposed a series of immediate, deliberate actions that I fully support: establishment of a national goal on the reduction of greenhouse gas intensity, substantial increases in research, partnerships within the international and industrial sectors, new agriculture sequestration projects, and focus on new technologies.

Question 24. Clear Skies would allows nonattainment areas to extend their attainment deadline beyond what is permitted under the current Clean Air Act. Do you

think that is prudent in terms of public health?

Response. I am committed to working with you to ensure that clean air legislation

includes aggressive goals to reduce air pollution so we can meet air quality standards. I believe the President’s Clear Skies proposal, in combination with his other

air quality initiatives, will achieve these goals. This approach includes incentives to

reduce pollution earlier in the next decade than the current Clean Air Act. If confirmed, I will work with States to ensure our public health based standards are met.

Question 25. On April 28, 2003, I asked Governor Whitman in writing when the

Agency would deliver the economic analysis of various levels of the standards to control power plant mercury and air toxics emissions. This was requested repeatedly

in 2002 by the Federal advisory committee working with EPA on these standards

and repeatedly promised by the Agency. EPA last committed to a delivery date of

April 11, 2003. Last week, 4 months after my request was submitted, I received the

following answer—‘‘that work group finished its report to EPA on October 30, 2002.’’

That was it, no analysis. Obviously, EPA never intended to keep its promise.

Do you think EPA should keep its promise, rather than give such an answer to

Congress and the Federal advisory committee and the public?

Response. I am not familiar with the specifics about the FACA report and delivery

date. As I have stated in my testimony, it is my intention to work with Congress

directly, straightforwardly, and in a way that would supply us both with information to meet our common goal, which is clean air.

Question 26. The EPA Staff Draft on the fine particle standard, which is done as

part of the 5-year review requirement in the Clean Air Act for all air quality standards, suggests that the current annual and the 24-hour standard should be more

stringent. If you become the Administrator, will you commit to expediting the Agency’s review and final determination using all the latest public health information?

Response. I have not had an opportunity to be briefed in detail on this issue. If

confirmed, I welcome the opportunity to learn more about it and am committed to

ensuring that the review is undertaken in accordance with the Clean Air Act and

that the best available public health information is considered as part of the review.

Question 27. Will you keep to the schedule in the attached list of air quality-related deadlines as announced by or required of the Agency, and alert the committee

in advance of any changes to this schedule? See EPA deadlines document.

Response. Whenever possible, it will be my goal to meet the scheduled deadlines

for all rules and regulations at the EPA.

Question 28. As you may know, the Executive Order on regulatory review (No.

12866), says that EPA must do an assessment of costs and benefits of potentially

effective and reasonably feasible alternatives to a regulation, identified by agencies

or the public. Given that directive, can you commit to us that if you become the Administrator, the Agency will provide an assessment of alternatives suggested by the

public for the utility air toxics/mercury MACT rule?

Response. I am not familiar with the specifics of this issue, but if I am confirmed

I intend to fully comply with all legal requirements.

Question 29. The Resource Conservation and Recovery Act requires that the Federal Government and all political subdivisions using appropriated funds must give

a preference to the procurement of products made with recovered content, with certain limitations. Should the Federal Government extend its procurement power further to encourage the development of ‘‘greener’’ products and services that emit less

harmful pollution?

Response. I will need more information on the Federal Government’s procurement

rules and regulations and voluntary initiatives before forming an opinion. If confirmed, I would continue EPA’s strong commitment to green purchasing, its compliance with the appropriate procurement requirements and its efforts to assist other

Federal agencies in this area.

Question 30. EPA recently proposed a settlement agreement that would require

the Agency to re-issue a proposed rule on Regional Haze and BART (Best Available

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Retrofit Technology) by April 15, 2004. Do you see any reason that rule should not

still include a 90–95 percent reduction in Particulate Matter emissions from uncontrolled sources?

Response. Through my work as co-chair of the Western Regional Air Partnership

(WRAP), I am aware of discussions regarding the re-issuance of the proposed rule.

However, I have not had the opportunity to discuss specifics of the settlement agreement or evaluate any potential conflict of interest due to my involvement in WRAP.

Therefore, I will defer comment at this time.

Question 31. Do you think it is wise for the White House to tell EPA and other

agencies to analyze regulations using the so-called ‘‘senior discount’’ where the lives

of older people are valued at about 2/3 of the average persons?

Response. I am only generally familiar with the use of cost and benefit analysis

but, if confirmed, I look forward to learning more.

Question 32. Although the Administration has acknowledged the importance of

limiting power plant NOx emissions, it has not yet issued the final rule necessary

to complete power plant emissions reductions required by the NOx SIP Call. Will

you commit to finishing up Phase II of the NOx SIP Call by the end of this year?

Response. One of my primary goals is to ensure cleaner air for all Americans, and

power plant emission reductions play an important part in achieving this goal. If

confirmed, I look forward to understanding more about this important matter and

will ensure that EPA’s actions are consistent with the requirements and goals of the

Clean Air Act.

Question 33. A number of States and localities are concerned about the impacts

of climate change and global warming on their citizens health and welfare, the

economies of their States, and their natural resources. They are thus moving forward to address greenhouse gas emissions, either by adopting or exploring mandatory reduction measures, or by taking other steps to reduce these emissions. Do you

support the role of States and localities in being laboratories for innovation with respect to emission reductions or do you think that such innovation should be

squelched in favor of one national policy that is not sufficient in the view of those

States and localities?

Response. State and local governments have been leading innovators in the environmental arena for decades. I look forward to working cooperatively with States

and local governments to help them continue to develop creative approaches to address environmental problems.

Question 35. . What are the possible effects of global warming on Utah?

Response. Climate change science is complex and projections based on hypothetical models vary widely.

Question 36. . If the State of Utah has conducted an analysis of the impacts and

costs and benefits of Clear Skies on the State, please share it with the committee.

Response. No, the State of Utah has not conducted an analysis of the impacts and

costs and benefits of the Clear Skies legislation.

Question 37. . As was discussed briefly in the hearing, your State air director represented Utah’s position in April 2003 on the Administration’s final and proposed

New Source Review rules as ‘‘making the situation worse.’’ You suggested that his

concerns were met or addressed in the final rule issued on August 27, 2003. However, since the final rule on routine equipment replacement was not much different

from the proposal, it is not clear how those concerns were address. Please explain

how Utah’s stated concerns were satisfactorily addressed in the final rule.

Response. The Utah Department of Environmental Quality’s (DEQ) primary concern was that New Source Review needed to be improved. DEQ’s March 2003 suggestions were all directed to the Annual Maintenance, Repair and Replacement Allowance (AMRRA) proposal. The comments were received and properly weighed; all

were addressed.

Question 38. . Federal studies tell us that school buildings are in such bad shape

that one-third have serious problems with indoor air pollution, which EPA has

found is much worse than outdoor pollution. EPA has worked hard to help local

schools understand how to prevent or fix Indoor Air Quality (IAQ) problems. It has

also published guidelines on how to design ‘‘healthy and high performance school’’

that promote good indoor air, energy efficiency, and environmentally preferable materials. As Administrator, will you ensure that these initiatives at EPA’s offices of

Indoor Environments and Child Health Protection are expanded?

Do you believe that EPA should invest more in basic indoor air research, invest

more in working with State agencies and pediatricians so they can work with local

schools, and begin to develop indoor air quality standards that will protect children’s

health, safety and learning ability?

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Response. If confirmed, I look forward to learning more about the issue of indoor

air quality. I will ensure that healthy environments for children at school are a high

priority at EPA.

Question 39. . The committee is aware of press accounts which span several years

and relate to allegations of impropriety by former members of the Salt Lake City

Bid Committee for the 2002 Winter Games. We are also aware of the March 1999

report of the U.S. Olympic Committee on this matter. Is there anything pertaining

to this matter that you would like to share at this time?

Response. No.

Question 40. . A study has been commissioned to the National Academy of

Sciences to assess the impacts of the NSR rule changes. By what scientific method

will the study measure the NSR rule changes effects on human health? Specifically,

how will the study collect, measure and evaluate incidence rates of lung disease,

asthma, and hospital visits?

Response. I am not familiar with the NAS study that you reference.

Question 41. . In the past, the EPA has relied on anecdotal evidence and selected

case studies to draw conclusions about the potential effects of NSR rule changes.

How will you ensure that the NAS study does not rely on such anecdotal case studies?

Response. I am not familiar with the NAS study that you reference.

Question 42. . The EPA has consistently delayed conducting a scientific analysis

of the effects of NSR rule changes. By law, the NAS has until March 3, 2004 to publish an interim report. If the NAS is unable to complete a thorough analysis by the

deadline, what steps will you take to assure that additional resources will be provided for them to complete the study?

Response. I am not familiar with this issue, if confirmed, I look forward to learning more.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS ON BEHALF OF SENATOR CORZINE

Question 1. Do you believe the EPA’s mission includes protecting citizens from

noise pollution, including noise from airplanes and airports? Was the EPA given exclusive Federal authority to coordinate Federal Agency programs that relate to noise

research and control under the Noise Control Act of 1972, 42 U.S.C. 4901 et seq.,

and the Quiet Communities Act of 1978, 42 U.S.C. 4913, as amended by Pub. L.

95–609, 2? And isn’t an important aspect of EPA’s authority its mandate to aid the

FAA in its regulation of airport noise and to suggest noise measures that are necessary to protect public health and welfare? [See 49 U.S.C. 44715 (b)-(d))

Response. I appreciate the concern you raise. If confirmed, I expect to learn more

about this issue and about EPA’s authority to address noise pollution.

Question 2. Given that authority, shouldn’t the EPA provide an independent scientific and technical review of noise impact studies performed by the FAA and in

particular the 65 dNL standard used by the FAA?

Response. I appreciate the concern you raise. If confirmed, I expect to learn more

about this issue and about EPA’s role in helping to address noise pollution.

Question 3. Shouldn’t the EPA provide comments and assistance to the FAA during the EIS process for redesign of flight routes into and out of Newark, LaGuardia,

Kennedy, and Philadelphia International Airports to ensure that the FAA properly

and fully considers reducing noise as a goal of the redesign?

Response. I appreciate the concern you raise. If confirmed, I expect to learn more

about this issue and about EPA’s role in helping to address noise pollution.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS ON BEHALF OF PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS (PETA)

Question 1. As you know, the Environmental Protection Agency (EPA) requires

chemical toxicity tests involving animals. You may not know, however, that the EPA

uses more animals in chemical toxicity tests than any other Federal agency. Animal

protection advocates contend that they have met with resistance by the EPA when

proposing reforms and the adoption of more sophisticated non-animal tests. Replacing animal test with non-animal tests is appealing from a humane standpoint, as

well as from a scientific standpoint, since there can be no question, for example,

that a human cell culture test is relevant to humans in a way that a test on rat

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or dogs will never be. Non-animal test are also often faster and less expensive than

animal methods. In 1999, the EPA published a proposed rule for skin absorption

testing using a non-animal method, but the proposed rule has never been finalized.

What priority will you place on changing the EPA’s policies so that methods such

as those above are accepted preferentially over their old-fashioned animal-based

counterparts?

Response. I have not been briefed on the technical and scientific issues related

to animal and nonanimal testing in relation to policymaking. If confirmed, I will

make every effort to ensure EPA’s policymaking is based on the strongest possible

scientific basis.

Question 2. The EPA uses virtually none of its more than $600 million annual research budget to research, develop, or validate sophisticated in vitro test methods.

Frequently, in vitro test methods are more economical, more reliable, more relevant

than animal tests, and are also more humane. What portion of EPA’s research budget are you prepared to devote to developing in vitro test methods?

Response. If confirmed, I look forward to being briefed on the Agency’s research

priorities and plans. Until I am briefed and have had a chance to explore this question in greater depth, I am unable to take a position.

Question 3. Questions have been raised concerning the lack of transparency and

openness of the EPA’s decisionmaking process. The fact that representatives from

the animal protection community are not invited to participate in the initial planning stages of EPA testing programs is a continuing source of concern. What

changes would you make to EPA policy in order to prevent this from happening in

the future EPA programs involving animal testing?

Response. As Governor, I have a long record of supporting collaborative processes.

In making important policy decisions, I encourage processes that provide an avenue

for a broad range of perspectives to be heard and considered.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS ON BEHALF OF SENATOR STABENOW

Question 1. Last year, Michigan received almost 3.5 million tons of municipal solid

waste (MSW) from outside the State, more than double the amount that was imported in 1999. This waste accounts for about one-fifth of Michigan’s total trash, and

makes Michigan the third largest importer of waste in the United States. More than

57 percent of the waste that is imported into Michigan in 2002 was from Ontario,

Canada and these imports are growing rapidly. On January 1, 2003, the city of Toronto switched from sending two-thirds of its trash, to sending all of its trash—1.1

million tons-to Michigan landfills, resulting in 180 truckloads of waste coming into

Michigan each day.

As Governor of Utah, you sponsored resolution 00–026 regarding out-of-State

waste that was adopted by the Western Governors Association on June 13, 2000.

The resolution stated that, ‘‘The Western Governors believe each State should do

everything it possible can to deal with its own solid waste in-State, including making those hard siting decisions when no one wants it Din their backyard.’’ a) Do you still support this statement?

Response: Yes.

b) Do you believe that Ontario has a responsibility to deal with its own waste instead of exporting it all to the State of Michigan?

Response. I do not know the specifics of the Michigan-Ontario arrangement, so it

would be inappropriate for me to make a judgment on the issue at this time. I would

like to clarify the question with respect to the policy resolution. WGA Policy Resolution 00–026, now Policy Resolution 03–12, was renewed in September 2003 by western Governors. The policy deals with interstate management of wastes, and does not

specifically address Canadian waste management. In addition to the statement you

have identified, the resolution also makes the following policy statement: ‘‘The Governors do not support an outright ban on waste shipments between States because

there are many examples of safe, effective and efficient cross-border waste management arrangements.’’ (WGA Policy Resolution 03–12)

2) Under the Agreement Concerning the Transboundary Movement of Hazardous

Waste (Agreement), which was entered into in 1986, MSW shipments across the Canadian-US border require government-to-government notification. The EPA as the

designated authority for the US would receive the notification and then would have

30 days to consent or object to the shipment, however the EPA has never enforced

these notification provisions.

a) Do you believe as a matter of public policy that this Agreement should be enforced?

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Response. I am not aware of EPA’s response with respect to the U.S. and Canada

Bilateral Agreement. If confirmed, I look forward to being briefed about this Agreement and EPA’s responsibility.

b) As EPA Administrator would you enforce these notification provisions in regards to Canadian MSW shipments?

Response. I am not aware of EPA’s response with respect to the U.S. and Canada

Bilateral Agreement. If confirmed, I look forward to being briefed about this Agreement and EPA’s responsibility.

c) If so, what factors would you consider in objecting or consenting to these MSW

shipments?

Response. I am only partially familiar with the cross-border waste shipment issue;

I do not have a position on what factors to consider. If confirmed, I look forward

to learning more about the Agreement and potential factors to be considered.

d) How much weight would you give to the following factors?

• Impacts to homeland security;

• Impacts on landfill capacity;

• Road deterioration resulting from increased traffic;

• Air emission resulting from increased traffic;

• Continued public support and adherence to the State’s recycling laws/efforts;

and

• Impacts on public health and the environment.

Response. I am only partially familiar with the cross-border waste shipment issue;

I do not have a position on what factors to consider. If confirmed, I look forward

to learning more about the Agreement and potential factors to be considered.

e) Are there other factors that you would consider? If so, what would they be?

Response. I do not have sufficient information to respond but, if confirmed, look

forward to examining this matter.

f) As a former Governor what weight would you give to a State’s objections to receiving Canadian MSW shipments when objecting or consenting under the Agreement?

Response. I do not have sufficient information to respond but, if confirmed, look

forward to examining this matter.

g) Would you seek the receiving State’s consent before consenting to the MSW

shipment?

Response. I do not have sufficient information to respond but, if confirmed, look

forward to examining this matter.

h) Would you consider the State’s objections to the MSW shipment dispositive as

a basis to object?

Response. I do not have sufficient information to respond but, if confirmed, look

forward to examining this matter.

Question 3. In an August 26, 2003 letter Robert Springer, Director of EPA’s Office

of Solid Waste, stated that the EPA is moving forward on a legislative proposal to

implement the Agreement.

a) At what stage in the drafting and approval process is the aforementioned legislative proposal?

Response. At this time, I am not aware of the status of the legislative proposal.

b) As EPA Administrator would you make drafting and presenting this proposal

to Congress a priority?

Response. At this time, I am not aware of the status of the legislative proposal.

c) What would you include in this legislative proposal?

Response. At this time, I am not aware of the status of the legislative proposal.

Question 4. As EPA Administrator would you support S. 199/H.R. 411, which provides the implementation language for the Agreement? Why or why not?

Response. I am unfamiliar with the provisions in S. 199/H.R. 411, therefore, I

have no opinion on the bills.

Question 5. As EPA Administrator would you support S. 383, The Canadian

Waste Import Ban Act of 2003? Why or why not?

Response. I am unfamiliar with the provisions in S. 383, therefore, I have no opinion on the bill.

Question 6. As EPA Administrator what other action would you take to address

the Canadian trash problem?

Response. I have not had the opportunity to understand the facts regarding the

cross-border waste issues, nor to identify problems associated with this issue.

Question 7. A September 8, 2003 Detroit News article revealed that 2–3 truckloads of Canadian MSW shipments are being turned back at the Michigan-Canadian

border for containing radioactive materials such as untreated medical waste.

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a) Do you believe that the deception of radioactive materials should be a basis for

the EPA to object to a MSW shipment?

Response. I support enforcement of prohibitions on the disposal of hazardous

waste in landfills not licensed for hazardous waste disposal.

b) What steps would you take to ensure that the MSW shipments do not contain

radioactive materials?

Response. I support enforcement of prohibitions on the disposal of hazardous

waste in landfills not licensed for hazardous waste disposal.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS ON BEHALF OF CONGRESSMAN STUPAK

Question 1. The Great Lakes Restoration Financing Act was introduced this year

and would create a Great Lakes Advisory Board to develop a Comprehensive Lakes

Management Plan and provides funding for Great Lakes clean-up efforts. Under this

legislation, the EPA Administrator would determine which States qualify for Great

Lakes clean-up funding. If enacted, what would you do to ensure the effective distribution and management of Great Lakes clean-up funding among the eight Great

Lakes States?

Response. The Great Lakes are indeed a national treasure. If confirmed, I will administer faithfully existing programs and any legislation that may pass Congress

and is signed into law by the President.

Question 2. Canada allows offshore drilling in the Great Lakes. As EPA Administrator, what would you do to prevent this practice from expanding—or ban the practice—in our shared resource, the Great Lakes?

Response. I am not familiar with this issue.

Question 3. For more than 10 years the US and Canada have had an agreement

on reporting standards for importation and exports of municipal solid waste, yet

EPA has never implemented these provisions. Can you assure us that implementing

these provisions will occur immediately under your leadership? Why or why not?

Response. I am not familiar with the provisions of the U.S. and Canada bilateral

agreement. However, if confirmed, I commit to learn more about this issue.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR JEFFORDS ON BEHALF OF THE CENTER FOR PROGRESSIVE REGULATION

Clean Science

There has been criticism of EPA’s peer review practices over the years by the

GAO and National Academies of Sciences, some of it concerning EPA’s conflict of

interest requirements. Please describe what you believe the conflict of interest requirements should be for the peer review of scientific research used by EPA in developing regulations.

When should a peer reviewer be excluded from reviewing regulatory science because their objectivity has been compromised?

The EPA has had a full year of experience with the Request for Correction procedure established under the Agency’s Information Quality Guidelines. Twelve formal

requests have been filed, resulting in eight EPA responses thus far. None of the

completed RFC’s has resulted in anything other than non-substantive, ministerial

changes to published EPA information, yet each has consumed considerable EPA

staff time and effort. What changes, if any, would you adopt to the EPA Information

Quality Guidelines to reduce this kind of wasteful government activity?

Should relevant, peer-reviewed research ever by excluded from the EPA’s effort

to identify a science-based protective standard under the Clean Air Act, Safe Drinking Water Act, etc? If so, under what circumstances?

Are there dangers in having a political body review scientific quality?

Response. I believe it is a priority to use the best available science and data to

support policy decisions and that all major scientific work products should undergo

peer review. I am not familiar with EPA’s current peer-review process or the Information Quality Guidelines. If confirmed, I look forward to exploring the issues you

raise with the process, but cannot articulate a position at this time.

Enlibra

You are identified as one of the originators of the Enlibra principles adopted by

the Western Governors’ Association, can we look to those principles to identify your

position on issues addressed there?

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Response. The Enlibra Principles express well the core beliefs of my environmental philosophy.

Are there any of the Enlibra principles that you would like to disavow in your

position as Administrator of EPA?

Response, No.

Changes in Leadership Goals

Please identify any decisions of national significance made by Administrator Whitman with which you disagreed and explain the basis for your disagreement with her

approach? How would you resolve the same issue if confronted with it as Administrator?

Response. I have known Governor Whitman for quite some time, and I have a tremendous amount of respect for her and the work that she did as Administrator of

the EPA.

Regulatory Reform

Did you support regulatory reform legislation in the 104’ Congress? How would

you respond if a bill similar to S. 343 (mandating substantial new analytical and

cost-benefit analysis requirements) were proposed today? Even if you believe costbenefit analysis can serve a useful function, do you see any downsides for EPA as

an Agency if it were subject to such new statutory requirements?

Response. I agree that cost-benefit analysis can serve a useful purpose. Until I

have been briefed in detail on EPA’s cost-benefit policies, however, I am not prepared to take a position on any legislative proposals.

White House Oversight

How would you respond if a White House employee or senior officer sought to convince you as Administrator to modify actions from what you and your staff had recommended about a pressing health issue?

Response. I believe it is EPA’s duty to provide important health information to

the public that is reliable and accurate.

Do you believe that OMB has the authority to instruct you to submit cost/benefit

analysis of rules promulgated under statutes that prohibit the consideration of

costs?

Response. I intend to comply fully will all legal requirements.

Cost/Benefit Analysis

What changes or additional initiatives would you advocate to improve the quantification of the benefits of environmental policies?

Response. I am not familiar enough with EPA’s current practices to comment. If

confirmed, I look forward to spending more time on this issue.

Market-Based Remedies

Under what circumstances would you favor the adoption of market-based approaches such as trading of emission credits? Do you believe that such trading is

every appropriate for toxic emissions or discharges? Do you support such programs

when it is difficult to measure the effect of emission or discharge reductions or when

it is impossible to determine the actual emissions or discharges from an individual

source?

Response. As I mentioned at the hearing, one of the reasons I support the President’s Clear Skies initiative is that I believe that, through the use of market-based

trading, we will see reductions of all the pollutants subject to the legislation. In this

context, the market-based approach is the best tool we can use. As to other situations, we need to evaluate whether a market-based approach is appropriate or

whether other tools are more appropriate.

Regulatory Toolbox

Do you favor the continued use of a technology-based approach to controlling

emissions of 29 pollutants from sources like point sources of water pollution?

Response. Yes, as required by the Clean Water Act.

Climate Change

As Administrator, what steps would you take to reduce the threat the United

States faces from global warming?

Response. A passive approach to address climate change is insufficient. The President has proposed a series of immediate, deliberate actions that I fully support: establishment of a national goal on the reduction of greenhouse gas intensity, substantial increases in research, partnerships within the international and industrial sectors, new agriculture sequestration projects, and focus on new technologies.

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What evidence can you point to that such steps will reduce the threat and by how

much?

Response. These steps will enable us to see reductions in greenhouse gas intensity

from the work of the international, industry, and agriculture sectors in the short

term, while increasing research and developing new technologies for the intermediate to long term. By initiating this work, we will be better able to inventory

reductions from sectors and technologies.

Do you think that the United States has obligations to address pollution from its

territory that harms other countries?

Response. The United States has a responsibility to protect the air, water and

land at home and to work through bilateral and multilateral agreements to reduce

pollution globally. If confirmed, I will work to implement policies that protect the

global environment.

Enforcement

The Clinton Administration undertook several initiatives in the area of enforcement, including the Policy of State Audit Privilege & Immunity Laws; Compliance

Incentives for Small Businesses Policy; Supplemental Environmental Projects (SEP)

policy; Performance Track; National Environmental Performance Partnership Systems (NEPPS); establishment of compliance assistance centers; coordinated enforcement against utilities for NSR violations, etc. Thus far there have been very few

if any new enforcement initiatives from the Bush Administration.

If you were Administrator, what specific steps would you take to address this

problem? Can you pledge to this committee that enforcement levels—number of civil

and criminal cases filed, and size of penalties-would be restored to previous levels?

Would you supporting bringing the number of EPA enforcement staff back to previous (FY 2001) levels?

Response. I am not familiar with the statistics you are citing. I look forward to

being briefed on the specifics of EPA’s enforcement program and what steps, if any,

may be necessary to strengthen that important program. Ensuring compliance with

the Nation’s environmental laws will be one of my highest priorities. It is my view

that enforcement is an important tool that can and should be used to promote compliance.

States’ Rights

The Department of Justice has filed an amicus brief in the U.S. Supreme Court

in a case in which manufacturers of mobile-source engines (engines for cars, trucks,

etc.) argue that southern California may not adopt its own requirements for large

fleets of buses and other mobile sources, and that its requirements are preempted

by the Federal Clean Air Act. The case thus threatens States’ authority to control

air pollution in the way they think best. Do you agree with the Department of Justice’s position in this case?

Response. I am not aware of the details of the U.S. Supreme Court case referred

to in the question, so I cannot comment on the position taken by the Department

of Justice.

Devolution

The National Academies of Public Administration and other influential think

tanks have called on EPA to embraces a system of differential oversight, in which

it varies its level of oversight based on the relative competence and performance of

States administering Federal environmental programs. Differential oversight is an

element of NEPPS, the new performance partnership system agreed to by EPA and

the States in 1995. In the face of resistance from the States in the late 1990’s, however, EPA has dropped the idea of differential oversight. Does he support this idea?

Under what circumstances would you threaten to withdraw delegated program

authority?

If you discovered that a State operating a delegated program under a Federal environmental law was initiating few enforcement actions and was failing to provide

meaningful opportunities for public participation in enforcement actions, how would

you as Administrator respond?

Response. If confirmed as Administrator, I would work with States to determine

how EPA can best support their programs, which may, in some cases, result in sharing certain responsibilities and finding other creative solutions. I firmly believe the

best environmental results will be achieved through a partnership with the States,

and keeping that partnership strong will be one of my top goals.

EPA From a State Perspective

As Governor of Utah what were three specific complaints you had with EPA, and

as Administrator of EPA how would you respond to such complaints?

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Response. It has been my practice as Governor, if there is a complaint or disagreement, to discuss the matter, gain an understanding of the issue and concerns, and

attempt to solve the problem. I will continue to use that approach if confirmed as

Administrator of EPA.

Environmental Justice

Consistent with the existing executive order on environmental justice, would you

commit to perform a detailed environmental justice analysis of proposed agency initiatives, one that would be included in all significant guidance documents and proposed rules?

Response. I believe that all communities should benefit from environmental protection laws. Until I learn more about EPA’s environmental justice program and

how they incorporate environmental justice concerns into Agency actions, I am not

in a position to propose any changes.

Generally, to what extent should environmental justice be considered in permit

proceedings? Should EPA provide guidance to delegated State programs in this regard?

Response. I believe that all communities should benefit from environmental protection laws. In addition, I believe that potentially affected community residents

should have an opportunity to participate in decisions that will affect their environment and/or health. I look forward to learning more about EPA’s efforts in this area.

Superfund and Brownfields

Do you support the reauthorization of the industry taxes that support the Superfund program?

Response. The first priority should be for polluters to pay, using Superfund’s liability system. Beyond that, I support funding for the cleanup of Superfund sites,

but do not have sufficient information to declare an opinion on the sources of funding.

Do you support a broader reauthorization of the Superfund statute? What changes

would you propose?

Response. If confirmed, I am committed to the effective and efficient use of funding for the cleanup of Superfund toxic waste sites to protect human health and the

environment.

Do you believe the Superfund program should be provided additional funding?

Would you argue to the President and before Congress for additional funding?

Response. If confirmed, I will continue the strong EPA commitment to clean up

toxic waste sites based on their risk to human health and environment.

Should companies remediating contaminated sites be permitted to clean to a reduced extent if they set up institutional controls relating to future uses? Do you see

any risks in such arrangements? How should they be addressed?

Response. I do not have sufficient information to articulate policy inclinations to

this level of detail.

Mountaintop Mining

What is your view on the mountain top mining cases? Do you believe mining companies should be permitted to put mining waste into valleys where they will block

rivers and streams?

Response. I am not familiar with the mountain top mining cases. I look forward

to learning more about this issue, if confirmed.

Clean Water Act Jurisdiction

Do you believe it is an appropriate responsibility of the Federal Government to

protect against the unregulated destruction of wetland breeding, nesting, and feeding areas for migratory fowl in the United States? Do you believe the Clean Water

Act provides that protection? If not, how do you believe that protection might be afforded?

Response. Over the last 11 years, I have had many opportunities to work on wetland issues. I am not sufficiently familiar with the specifics related to destruction

of wetland breeding, nesting, and feeding areas for migratory fowl. I look forward

to learning more about this issue, if confirmed.

Air Toxics

Do you believe that air toxins are posing threats to the public health in urban

areas in the United States? If so, what are the problems and what do you plan to

do about it? If not, what is your opinion based on?

Response. Air toxics can pose a threat to public health. I look forward to learning

more about the various programs that EPA is implementing to control and provide

incentives for limiting and reducing air toxins.

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Clean Air Act Attainment

Are you prepared to withhold highway funds to States that do not reach their attainment?

Response. I am not fully familiar with the complexities that surround this issue.

Polychlorinated Biphenyls

This month, through an internal memo, the EPA ended a 25-year-old ban on the

sale of land polluted with PCBs, or polychlorinated biphenyls. The ban was intended

to prevent hundreds of polluted sites from being redeveloped in ways that spread

this toxin and raise public health risks. Indeed, it was PCB pollution that forced

the abandonment 25 years ago of the Love Canal community in Niagara Falls, New

York. As EPA Administrator, would you continue this practice of allowing the sale

of PCB-contaminated land?

Response. I would like to learn more about this specific issue before offering an

opinion on the substance of the memo.

RESPONSES BY GOVERNOR MICHAEL O. LEAVITT TO PRE-HEARING QUESTIONS FROM

SENATOR JEFFORDS

Question 1. In 1987, the EPA released a, report entitled ‘‘Unfinished Business: A

Comparative Assessment of Environmental Problems.’’ The Agency and other partners, including the National Governors Association, participated in subsequent similar efforts in 1990 and 1992 to rank the involuntary risks facing public health and

welfare and the environment. Based on your current knowledge of environmental

problems, what do you perceive as the top five involuntary environmental health

risks faced by the American public?

Response. I believe that EPA should rely upon sound science, as well as risk assessment, to establish priorities for environmental protection. If confirmed, I look

forward to hearing what EPA’s scientists and experts advise in this regard before

articulating any preconceived list of priorities for the Agency.

Question 2. In 2001, the National Academy of Sciences reported to the President

that, ‘‘Greenhouse gases are accumulating in Earth’s atmosphere as a result of

human activities, causing surface air temperatures and subsurface ocean temperatures to rise. Temperatures are, in fact, rising. The changes observed over the last

several decades are likely mostly due to human activities, but we cannot rule out

that some significant part of these changes is also a reflection of natural variability.’’ Do you believe that voluntary measures alone, which have failed to reduce

total U.S. emissions, are a prudent approach to the threat of global warming?

Response. A passive approach to address climate change is insufficient. The President has proposed a series of immediate, deliberate actions that I fully support: establishment of a national goal on the reduction of greenhouse gas intensity, substantial increases in research, partnerships within the international and industrial sectors, new agriculture sequestration projects, and focus on new technologies.

Question 3. Prior to any final changes to the NSR regulations, EPA referred 8

cases of violations of NSR regulations to the Department of Justice for prosecution

since the beginning of this Administration. Should DOJ prosecute those cases to the

fullest extent?

Response. I do not have knowledge of the 8 cases referred to in your question.

Until I am confirmed I am not privy to the details of any ongoing enforcement actions or the government’s position on those matters.

Question 4. Will you respond to majority and minority committee inquiries for

technical assistance and information in a timely and comprehensive fashion. What

would you consider to be timely?

Response. I look forward to working with the committee and will make every effort to provide technical assistance in a timely and comprehensive manner. Without

knowing the specific nature of the assistance you may request, I cannot commit to

a specific timeframe for responding to requests for technical assistance. I expect

there will be some variability depending on the complexity of your requests and the

resources needed to provide a response.

Question 5. Will you commit to answering in full all outstanding information requests from minority members of this committee no later than 30 days, after being

confirmed, if the outstanding requests have still not been satisfied?

Response. If confirmed, I will make every effort to provide information to the committee in a timely and comprehensive manner.

Question 6. According to the General Accounting Office, the Administration’s conclusion that their recent changes environment are based on anecdotes and not on

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statistically significant, scientifically to the New Source Review program will be

beneficial to the sound data. Do you believe that deregulating sources of air pollution requires valid evidence that there will be no harm to public health or the environment before deregulating? If so, will you postpone the effective date of the New

Source Review changes pending development of statistically significant, scientifically

sound data?

Response. I am aware that there are differing perspectives concerning the recent

changes made by EPA to the New Source Review program. If confirmed, I would

like to understand in greater depth and detail the data, issues, and perspectives associated with this complex subject. I look forward to the opportunity to be briefed

in detail on the NSR changes.

Question 7. Do you think it would make sense to extend the attainment deadlines

for areas that will be designated as nonattainment for the new 8-hour ozone standard for some time beyond the current attainment deadline for areas that have not

yet attained the 1-hour ozone standard?

Response. I am not familiar with all of the issues that may need to be considered

in responding to the question of whether or not it is appropriate to extend the deadline. If confirmed, I would welcome the opportunity to learn more on this topic.

Question 8. You have been intimately involved with the Western Regional Air

Partnership. What are your views on the proposed Federal Regional Haze rule and

Best Available Retrofit Technology (BART) requirements and the timing and source

coverage of those rules?

Response. The Regional Haze Rule provides appropriate tools to improve visibility

in our treasured parks and monuments and throughout the West. It recognizes the

need for reduced emissions, which can be accomplished through mandated utilization of Best Available Retrofit Technology (BART), as well as through a set of milestones and backstop cap-and-trade program to achieve reductions that are better

than BART.

Question 9. What effect will the WRAP have on mobile source emissions controls,

either through individual vehicles or land used changes?

Response. The Clean Air Act authorizes only EPA and the State of California to

set emission control standards for individual vehicles, so such measures are not addressed in the Regional Haze Rule and are beyond the authority of the Western Regional Air Partnership. The Regional Haze Rule does not address or require an

analysis of land use, so this has not been an activity undertaken by the WRAP.

Question 10. You have supported long-term planning efforts in Utah to ensure

quality of life and sustainable economic development. Do you believe that infrastructure development, including highway and transportation investments, should be

closely coordinated with long-term air and water quality protection and planning efforts?

Response: Yes.

Question 11. What should the United States do to ensure that foreign manufacturers in countries with less stringent environmental requirements do not have an unfair advantage over domestic manufacturers?

Response. I have not spent a lot of time dealing with this issue, but this is a serious concern. If I am confirmed, I would work with the U.S. Trade Representative,

the State Department, and other agencies on policies that will implement Congress’

direction in recent trade promotion authority legislation that will help create a more

‘‘level playing field’’ for environmental regulation between us and our trading partners.

Question 12. Do you believe that the EPA should be formally elevated to Cabinet/

Department status?

Response: Yes.

Question 13. Should EPA have the power to ban fuels and fuel additives, such as

MTBE, that cause water quality and resource contamination, as well as those that

cause harmful air pollution?

Response. I am not familiar with the issues surrounding the banning of fuel and

fuel additives, such as MTBE, and would need to have more information before

forming an opinion on this matter.

Question 14. As you may know, studies, indicate that toxic air pollutants from mobile sources increase the risk of cancer and other adverse health effects of those people living within close proximity to high volume traffic roads. Do you believe that

such studies and these potential effects should be considered by Federal and State

transportation planners before major construction occurs increasing capacity or

building new roads?

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Response. I would like to be more fully briefed on the details of these studies or

the potential effects of toxic air pollutants from mobile sources on people living within close proximity to high traffic volume roads before expressing an opinion.

Question 15. The National Environmental Policy Act includes section 102 reprinted below. If confirmed, will you comply with the requirements of this section?

SEC. 102. The Congress authorizes and directs that, to the fullest extent possible:

(1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and

(2) all agencies of the Federal Government shall

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in

planning and in decisionmaking which may have an impact on man’s environment;

(B) identify and develop methods and procedures, in consultation with the Council

on Environmental Quality established by title II of this Act, which will insure that

presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;

(C) include in every recommendation or report on proposals for legislation and

other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effect which cannot be avoided should the proposal

be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man’s environment and the

maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be

involved in the proposed action should it be implemented.

Response. I support EPA’s important role in implementing the National Environmental Policy Act, along with other Federal and State partners, and if confirmed,

I will comply with all applicable laws.

Question 16. Do you believe that NEPA section 102(C) requires the consideration

of the potential impacts of greenhouse gas emissions on global climate change?

Response. I have not been briefed on this matter. Consequently, I do not have a

position on this issue at this time.

Question 17. Can you describe how the Environmental Protection Agency currently cooperates and coordinates with the National Transportation Safety Board on

safety investigations and your plans to continue with or modify that approach?

Response. As I understand it, the National Transportation Safety Board investigates significant accidents involving hazardous materials and then issues recommendations to EPA aimed at preventing future accidents.

Question 18. Will you agree to provide ?the General Accounting Office with adequate and timely access to documents and personnel necessary for GAO to compile

information and investigate matters at the request of Congress?

Response. If confirmed, I will ensure that the Agency cooperates on GAO investigations.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR BAUCUS

Question 1. Mr. Leavitt, do you commit to putting the cleanup of Libby, Montana

at the very top of your priority list at EPA, if you are confirmed? Do you commit

to completing the clean-up in Libby as soon as possible?

Response. While I do not know the details of EPA’s Superfund priorities yet, my

understanding is that the Libby cleanup is a high priority for EPA. I support continued priority attention to an effective and efficient cleanup.

Question 2. Mr. Leavitt, will you promise to come to Libby as soon as possible

after you are confirmed, preferably this fall? Will you promise to sit down with

Libby residents, with EPA staff on the ground and hopefully, even Paul Peronard,

so that you will understand personally what is needed to finish EPA’s job in Libby?

Response. I hope to visit many of the priority Superfund sites around the Nation,

as I have those in Utah. There is no better way to learn the issues than to sit down

with the people most concerned at the local level.

Question 3. This project rounds out the short list of Region 8 priorities and is a

priority for me too. Milltown Dam needs to go, and the contaminated sediment sitting behind that dam needs to be removed. The contaminated sediment should be

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removed to the Opportunity ponds. Montana Rail Link will build the lines to the

ponds and EPA owns the ponds. This is a good common sense solution for environmental cleanup and for economic development opportunities. Will you commit to

taking, a hard look at this option?

Response. I believe all options need to be fairly evaluated prior to an Agency decision. Those options that are supported by local communities definitely deserve consideration.

Question 4. Environmental contamination harms the health of communities like

Libby in many ways, including its economic health. As a Governor who fully leveraged his role to benefit economic development for his State, Utah, I look forward

to working with you to leverage Brownfields and EPA economic development programs within Montana for rural communities that struggle with the burden of environmental contamination. I ask for your commitment that you will work with me

to make this a priority for communities like Libby, too.

Response. The Brownfields program has been an effective and valuable tool in

Utah, and I fully support its goals. I am a strong believer in strengthening our local

economies and providing for a clean environment using programs, like the

Brownfields program, that can optimize both.

Question 5. Maintaining the integrity of the Superfund program is clearly an important issue for Montana. From the new ‘‘mini’’ sites caused by abandoned meth

labs, to the many NPL sites in Montana, Montana relies heavily on the Superfund

program to protect the public health of its citizens and to restore its environment.

Libby is an excellent example of the need for a stable and solvent Superfund program. Although the EPA has won its latest court case against W.R. Grace, and was

awarded more than $50 million, that amount doesn’t cover all of EPA’s costs nor

is it likely that EPA will actually recover anything close to what W.R. Grace actually owes the Agency.

Through no fault of its own, Libby has suffered a terrible environmental and public health disaster. The appropriate State agency has no resources to deal with the

problem, and limited authority. The only real back-stop to make things right and

help the community back on its feet is the EPA—only the EPA has the necessary

resources and expertise. That’s the whole point of Superfund and it’s an appropriate

role for the Federal Government—the folks in Libby are, after all, U.S. citizens.

Mr. Leavitt, what are you views on the Superfund program in general and what

are your thoughts on how Congress and the EPA should maintain the integrity of

the Superfund program? How can we maintain the fund’s integrity by relying solely

on appropriations from the General Fund?

Response. I support the goals and objectives of the Superfund program, as I have

during my tenure as Governor of Utah. Funding for the program is important, and

I will support efforts to provide needed resources, as well as to explore creative new

ways to solve environmental problems by working closely with our State, Local, and

Tribal partners.

Question 6. Methamphetamine (meth) use and production is an issue of rising importance, as you are likely aware from your role as Governor of Utah. In Montana,

as in much of the West, it’s reaching crisis proportions. In addition to public health

and law enforcement challenges, exploding meth production poses significant environmental contamination problems due to the hazardous chemicals used to produce

meth.

Each one of these abandoned meth sites is potentially mini-Superfund site, with

no real potentially responsible party. Increasingly the responsibility for clean-up of

these sites is falling on EPA—there is no clear authority for the appropriate State

agency, the Montana Department of Environmental Quality, to do the work.

Abandoned meth labs are also becoming an issue on Forest Service lands in Montana.

Do you have any thoughts on how we—the States and the Federal Government—

can collaboratively address these meth clean-up issues, in terms of resources, expertise and authority?

Response. Methamphetamine use is indeed a serious problem. Unfortunately, we

have not been spared from the problem in Utah. Disposal of the waste is covered

under existing Federal and State environmental laws. However, like many States,

Utah has recognized the need for additional authority regarding testing and cleanup of the residences and building contaminated by meth labs. If confirmed, I will

consider whether EPA can play a larger role in these clean-up efforts.

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RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR GRAHAM

Question 1. On your official website as Governor of Utah, you say it is appropriate

for the Federal Government to establish national environmental standards, but

‘‘States, tribes and local governments should have the flexibility to develop their

own plans to achieve the national standards and to provide accountability.’’ As you

know many of EPA’s programs do not have enforceable standards. To name a few,

the Superfund program does not have standards for soil contamination, the water

program does not have standards for microorganisms in sewage effluent, for individual or aggregate industrial discharges, or for agricultural runoff. How can States

and neighborhoods take effective action on environmental issues when there are no

standards, and what would you do to establish standards where they are missing?

In other cases EPA has issued standards for individual products, but those products

can still cause problems (e.g., there are standards for auto emissions, but auto emissions are still a significant source of pollution, especially in high density areas). How

should States, tribes and local governments address such problems?

Response. In situations where the Federal Government has not established national environmental standards, I believe States, Tribes, and local governments

should work collaboratively with our Federal partners to determine the appropriate

course of action. In Utah, for instance, there is a State groundwater protection law,

although there is no equivalent Federal law.

Question 2. As you know, many pollutants cross jurisdictional boundaries. Under

your principles, how would States, tribes and local governments prevent pollution

that originates outside their boundaries?

Response. The Western Regional Air Partnership is addressing the issue of pollution crossing political boundaries through a collaborative process. I strongly believe

the Enlibra principle of ‘‘Collaboration, Not Polarization’’ can be effective in helping

to address this issue.

Question 3. Many of the largest polluters are interstate entities. How will these

businesses conduct operations efficiently if environmental monitoring and regulation

is being managed differently by each of the States, tribes, and local governments

in which the businesses operate? How can tribes or local governments that are significantly dependent on one or two major employers avoid being held hostage by

those businesses with respect to environmental compliance?

Response. I strongly believe that there needs to be continuous dialogue between

EPA, regions, States, and Tribal Governments because a one-size-fits-all solution

frequently is not the best way to protect human health and the environment. As

I stated above, I strongly believe the Enlibra principle of ‘‘Collaboration, Not Polarization’’ can be effective in helping to address this issue.

Question 4. On your official website as Governor of Utah, you say environmental

solutions should be implemented locally, that most environmental challenges transcend political boundaries, and that voluntary interstate strategies and other partnerships should be the preferred approach to dealing with environmental issues.

Can you clarify what these means? How do you resolve conflicts with a voluntary

approach when trans-boundary pollution generally moves west-to-east with the dominant wind, or downstream in rivers, or down-gradient in groundwater? What are

the incentives that will induce an ‘‘up-stream’’ polluter to enter into ‘‘voluntary’’

agreements with their down-stream States, tribes, or local governments, especially

if those jurisdictions are not adjacent to the political entity where the polluters are

located?

Response. Acknowledging that these are problems that transcend political boundaries is an important first step. The Western Regional Air Partnership is a good example where a collaborative process resulted in an outcome with an agreed upon

non-voluntary solution.

Question 5. On your official website as Governor of Utah, you say we should reward results, not programs. As noted earlier, many of EPA’s programs are operating

without meaningful standards. In light of this, how would you measure results?

How would you set goals?

Response. Results must be tied to the quality of our environment. If the air is

cleaner, the water purer, the land better protected, then we have made progress.

I believe we must continue to improve our ability to measure environmental results.

Question 6. On your official website as Governor of Utah, you say collaboration

is needed to break down barriers and find environmental solutions.. However, when

you proposed making the San Rafael Swell a National Monument it appears you did

it unilaterally, without the participation of either the affected localities or the environmental community. How do you square your principles with your actions on this

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matter, and how do you propose to ensure that actions taken at EPA would be inclusive?

Response. Actually, the San Rafael National Monument proposal came from the

local community. Public participation is a fundamental component of our nation’s environmental laws. If confirmed, I am committed to the effective implementation

of these laws, and I will carefully consider the views of all interested parties.

Question 7. On your official website as Governor of Utah, you say environmental

progress, and public confidence, improve where there is agreement on the underlying facts, but that policy decisions can still be made if agreement cannot be

reached on those facts. This Administration has repeatedly omitted, prevented the

collection of, or skewed data that should be part of the environmental debate (e.g.,

buried research on the Senate’s clean air plan, sanitized EPA’s report on the environment, prevented EPA from discussing perchlorate pollution, etc.) What steps will

you take to ensure that data collections are not manipulated or curtailed for political purposes, and data is widely shared after it is collected?

Response. I believe it is EPA’s duty to provide the public with critical health information that is reliable and accurate as soon as that information is gathered and

validated.

Question 8. As you know, on environmental issues the data is never complete, and

there is rarely agreement on how it should be interpreted. What weight will you

attach to protecting public health and the environment, and how will you balance

those needs against the goal of reducing the costs of environmental action? How do

you propose to break through the data-debate log jams that have delayed meaningful action on a host of environmental issues?

Response. I believe it is EPA’s duty to provide the public with critical health information that is reliable and accurate. I am not familiar with the specifics of the data

log jam you mention but I will look into it, if confirmed.

Question 9. On your official website as Governor of Utah, you say environmental

protection should use market mechanisms rather than mandates. Would you endorse the use of market mechanisms for discharges of toxic substances, and if so,

what would you say to the neighborhoods impacted by plants that choose to purchase their compliance rather than reduce their emissions?

Response. I understand that EPA currently implements some programs with market mechanisms, Those would be a starting point for assessing any further use of

those mechanisms.

Question 10. On your official website as Governor of Utah, you say decisions on

infrastructure, development and environment should be informed by recognition of

all benefits and costs. Does this mean that your EPA would attempt to recognize

all of the so-called ‘‘negative externalities’’ associated with pollution?

Response. It is my understanding that at the Federal level, the use of cost-benefit

analysis is addressed by both statute and Executive Orders. If confirmed, I expect

to be fully briefed on this process.

Question 11. I would like to get some further information regarding your involvement with the Legacy Highway in Davis County, Utah. It is undisputed that the

wetlands that the highway would affect have national if not international importance to wildlife, being the most significant refuge for migratory birds in the interior

west. Throughout the process of proposing the highway, and up to the present as

far as I can tell, you were at odds with the EPA concerning your compliance with

Federal law, including the Clean Water Act. While the EPA focused on legal deficiencies, you focused on pitching the Legacy Nature Preserve. The EPA’s prior positions and the Federal courts have agreed, that proposals should first avoid wetlands, then minimize impacts to wetlands, and as a last case resort, mitigate if necessary. This interpretation of the law seems very different from your desired result,

justification of the impacts of your project based on its mitigation package. In fact,

your rationale that a project is acceptable if the mitigation is acceptable turns the

Clean Water Act on its head. It puts mitigation ahead of avoiding impacts to wetlands and minimizing impacts. During every phase of the highway’s permitting

process, the EPA was at odds with your position and you attempts to justify impacts

based on mitigation.

They rated it environmentally unsatisfactory (which is the EPA’s lowest rating of

a study) and constantly requested compliance with the law. Just prior to the State

of Utah receiving a 404 permit, documents show that Bill Yellowtail, a regional administrator with the EPA, warned you about the ‘‘legal liability’’ of your proposal.

The Tenth Circuit indeed concluded that your highway proposal failed to consider

a less damaging route and failed to minimize impacts. Instead, it found that you

violated the Clean Water Act with your proposal that would put a four lane highway

with a large right-of-way-the length of an entire football field-right through some

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of the nation’s most important wetlands. How can the public trust that you will uphold the Clean Water Act as EPA’s Administrator when your past behavior shows

a disregard for that law and that is at odds with EPA’s own interpretation of the

law?

Response. It is and has always been my intention to ensure that the Clean Water

Act is enforced fairly and equitably.

Question 12. You may have heard of the ‘‘pre-cautionary principle.’’ In short, this

principle says that extreme caution is warranted when an action, or proposed action,

involves potential harm that is either very large or permanent. The threat of global

warming seems to be the type of effect that would fall within the precautionary

principle, because of the vast potential costs and human suffering that might occur.

How should that affect the debate about reducing atmospheric carbon emissions?

Response. In general, my view is that even though our scientific understanding

is constantly evolving, decisions must be made based upon the strongest science

available at the time. If confirmed, I would make sure that the Agency’s human

health and ecological risk assessment methodologies will continue to incorporate

methods and assumptions that reflect our approach to environmental policy, as defined by environmental statutes and other public health and risk management orders.

Question 13. According to EPA’s draft report, since EPA was created there have

been dramatic reductions in most pollutants. During this same period the economy

has generally been growing and generally created jobs. What is your plan to continue to make environmental improvements while simultaneously growing the economy?

Response. As I indicated during the hearing, I believe that this Nation deserves

to have a clean, safe, and healthy environment. I also believe that the United States

can increase the velocity of its environmental progress without compromising its

competitive position economically in the world. For example, in Utah, we wrote a

new energy policy that called for the development of nearly 5,000 megawatts each

year, while still reducing air pollution. We have been able to do that by following

a balanced policy for the past 2 years. It is my intent, if confirmed, to continue to

work toward balanced environmental policy.

Question 14. On January 15 of this year, EPA announced that it would consider

a proposed rule that would limit the scope of the Clean Water Act. By the EPA’s own estimates some 20 million wetlands across the country—an area as large as

Maine—have already lost Clean Water Act protection under the guidelines they

issued to field staff in January. Countless numbers of wetlands, streams, ponds and

other waterbodies could be severely impacted if this rulemaking goes forward. In

fact, during an initial public comment period 39 out of 42 State agencies that filed

comments made clear they oppose proceeding with such a rulemaking. Given your

advocacy for giving the States more environmental authority where possible, how

would you handle a situation such as this where a strong majority has stated it does

not want to lose existing Federal protections? What actions would you take in regard to this rule?

Response. Over the last 11 years, I have had many opportunities to work on

issues related to wetlands. Wetlands are a very important part of a natural heritage

that we must protect. I have not been fully briefed on the issue, but if confirmed,

I commit to you to consider the input from States and others in determining how

to proceed on this issue.

Question 15. There have been a number of incidents of what some have construed

as White House intrusion into the affairs of EPA. Russell Train wrote the New York

Times and said: ‘‘Having served as EPA Administrator under both Presidents Nixon

and Ford, I can state categorically that there never was such White House intrusion

into the business of the EPA during my tenure. The EPA was established as an

independent agency in the executive branch, and so it should remain. There appears

today to be a steady erosion in its independent status.’’ Please describe what you

think should be the role of the White House in EPA’s actions to provide unbiased

scientific analysis, fully environmental information, and enforce the nation’s environmental laws. What would be your course of action if you thought EPA was unable to carry out these duties?

Response. My job, if confirmed, would be to act in full accord with the statutes

the Agency implements, and to make sure that my actions, and actions taken by

the Administration, are informed by the best science and environmental information

that the Agency can provide. As I stated in my testimony, I expect to run the Agency and to elevate matters when, in my judgment, the President needs to be involved.

Question 16. There is a significant backlog of congressional requests from the past

2 years where EPA has failed to be sufficiently responsive. EPA has abandoned its

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long-standing practice of providing non-partisan, unbiased analysis for Congress,

particularly committee chairman and ranking members. Will you pledge to work

with Congress and honor our requests for information?

Response. I believe we should use best available science and allow a disciplined

process to help sort out differences in scientific views. I look forward to working

with the committee and will make every effort to provide responses to congressional

requests in a timely manner.

Question 17. I am troubled by reports that EPA has withheld EPA analysis from

my colleagues, Senators McCain and Lieberman, pertaining to their climate bill, and

selectively withheld information from Senators Carper and Chafee on the impacts

of their power plant legislation. I am further troubled by allegations that the reason

for withholding the information may be that the results don’t fit the Administrations political and policy goals. Bill Ruckelshaus, the first EPA Administrator who

served again under Reagan, noted the following to the New York Times: ‘‘Whether

or not analysis is released is based on at least two factors. Is the analysis flawed?

That is a legitimate reason for not releasing it. But if you don’t like the outcome

that might result from the analysis, that is not a legitimate reason.’’ Do you agree

with Mr. Ruckelshaus’ assessment that politics should not dictate EPA’s analytical

functions and duty to share this information with Congress and the public? What

steps will you take to ensure that Congress has the most up-to-date information

available by which to make policy decisions?

Response. If confirmed, I look forward to working with the committee and will

make every effort to be responsive to your requests in a timely manner.

Question 18. According to an investigative report by the Sacramento Bee, several

EPA enforcement officials say they have been pressured by management to pad

their enforcement statistics and make it look like they are pursuing more violations

of environmental laws than they really are. Will you look into this matter and ensure us that EPA will be completely forthcoming and transparent when reporting

to Congress and the public on its environmental reporting?

Response. I am not aware of the allegations, but I will certainly look into this

matter if I am confirmed.

Question 19. One of EPA’s principal responsibilities is implementing laws passed

by Congress as interpreted by the courts. Several recent decisions in the Federal

Courts, including two strongly worded decisions in the conservative 4th Circuit,

have overwhelmingly affirmed that the Clean Water Act applies broadly to protect

our nation’s wetlands, streams and other waters. These recent Court rulings plainly

demonstrate that no such roll-back of Federal regulations is required under the law.

Will you, as Administrator, ensure that current regulations are kept in place and

that the Clean Water Act is fully enforced under current regulations?

Response. One of the reasons that I offered myself for this position is because I

want to ensure that the air is cleaner, water purer, land better cared for and a

healthy environment exists. To that end, if confirmed, I intend to fully enforce with

the Clean Water Act.

Question 20. EPA is under a court order to enforce the Clean Air Act and issue

a rule by December 31 of this year to reduce toxic mercury emissions from coal-fired

power plants, which are the largest unregulated source in the Nation. Because mercury is a potent toxin that, like lead, causes developmental delays in children at

even tiny quantities, the Clean Air Act requires EPA to set standards based on the

maximum amount that can be technologically reduced. According to a New York

Times report, EPA canceled the technical analysis needed to produce a credible mercury rule after EPA’s top air official consulted with the White House on how to proceed. What will you do to ensure that EPA moves forward with the necessary analysis in time to produce the rule this year?

Response. I am not familiar with all of the issues associated with this question,

and, if confirmed, I would welcome the opportunity to learn more about the issue.

Question 21. In 2000, Congress passed and then-President Clinton signed into law

the Estuary Habitat Restoration Partnership Act, S. 835 (public law 106–457). Title

VI of this bill is entitled ‘‘Alternative Water Sources’’ and consists of the text of a

bill that has been a priority for me and other members of the Florida delegation

for some years. As a Western Governor, I am sure you can appreciate the importance of investigating technologies for alternative water supply. The pilot program

authorized under Title VI has never received funding, largely because EPA has yet

to promulgate regulations for the program. Unfortunately, we are now faced with

an expiring authorization for the pilot program (funding was authorized from fiscal

years 2002–2004). If you are confirmed, will you pledge to work with this committee

to reauthorize and execute the alternative water sources program?

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Response. I am not familiar with the Alternative Water Sources pilot program,

but I do appreciate the importance of working to assure adequate water supplies.

I look forward to learning more about this particular program.

Question 22. As you may know, Florida has 51 Superfund sites. The GAO recently

released a report that concluded that the Superfund Trust Fund would be out of

money by the end of October. In addition, in July 2001, Resources for the Future

(RFF), as directed by Congress in the fiscal year 2000 VA-HUD Appropriations bill,

released a report to Congress identifying the needs and future costs of the Superfund program for fiscal years 2000–2009. The report estimated needs in 2004 at

over $1.6 billion. The President’s fiscal year 04 budget request includes only $1.4

billion for Superfund cleanups.

Response. I am aware that the President’s Fiscal Year 2004 budget requested an

additional $150 million for Superfund cleanup construction.

Question 23. Do you support increasing the Superfund budget to $1.6 billion to

meet the ongoing and ever increasing needs of not only the 51 Superfund sites in

Florida, but also the 1200 Superfund sites throughout the country?

Response. I support the President’s Fiscal Year 2004 budget that requested an additional $150 million for Superfund cleanup construction.

Question 24. Do you support reinstating the assessment on chemical and oil companies that funded the Superfund Trust fund? If not, why not? How do you intend

to meet the monetary demands of these toxic waste sites without any contribution

from the trust fund?

Response. The first priority is for polluters to pay, using Superfund’s liability system. I support funding the cleanup of Superfund sites, but I do not have sufficient

information to articulate a position on the source of funding at this time.

Question 25. The Escambia Treating Company Superfund site in Pensacola, Florida remains a threat to the health of the residents of Pensacola. For more than 10

years, the EPA has acknowledged that threat, but the risk to the residential health

remains. To EPA’s credit, 358 residents were relocated away from the site due to

the dangers posed by the site. However, a mountain of dioxin remains on the site.

The Pensacola Chamber of Commerce passed a resolution in June 2003 which recognized the ongoing public health threat posed by the Superfund site and the need

to remediate the mountain of dioxin that remains on the site. As EPA Administrator

will you commit to providing the Pensacola community with a detailed remediation

plan within 3 months of taking office that includes the excavation and treatment

of the mountain of dioxin at the site and the completion of the sampling of the

groundwater and soil to resolve the human and ecological risks posed?

Response. I am unfamiliar with the Escambia Treating Company Superfund site.

If confirmed, I commit to having the appropriate EPA officials examine the issues

you have raised.

Question 26. Agrico Chemical Co, also a Superfund site in Pensacola, Florida remains a danger to the health of the residents of Pensacola. The Escambia County

Utilities Authority recently acknowledged the existence of a toxic plume contaminating the communities public drinking wells as a result of contamination from

Agrico. The community needs the expertise and support of the EPA to address and

resolve this problem. As EPA Administrator will you commit the personnel and resources necessary to resolve this drinking water danger that may have contaminated the drinking water of 10,000 residents? Assuming that you make this commitment, will you agree to a meeting between the local health and environmental officials and the EPA within 3 months of taking office to find a solution to the problems

posed by the toxic plume, including water supply well replacement or wellhead

treatment with filtration, reverse osmosis (RO) with RO reject evaporation pond, offsite disposal of RO reject sludge from pond; onsite deed restrictions, groundwater

use restrictions; and extensive groundwater monitoring as contemplated by the

Record of Decision?

Response. I am unfamiliar with this particular site and do not have enough information at this time to answer your question. If confirmed, I commit to having the

appropriate EPA officials examine the issues you have raised.

Question 27. In the 2002 EPA Inspector General’s report, 5 Florida Superfund

sites were identified as needing and not receiving adequate funding: Solitron Microwave, Southern Solvents, Trans Circuit, American Creosote and Tower Chemical.

Will you commit to providing detailed funding and remediation plans for each site

to determine the progress and needs of those sites to ensure that each sites cleanup

is on track within 3 months of taking office?

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Response. I am unfamiliar with the Superfund sites identified in your question.

If confirmed, I commit to having the appropriate EPA officials examine the issues

you have raised.

Question 28. The Coronet Industries plant in Plant City, Florida is now under investigation by local and State health and environmental issues for possible environmental contamination of the soil, groundwater and air. The residents near the plant

have reported high incidences of cancer and other illnesses. The local officials plan

to complete a health assessment in 9 months. The level of concern in the community

and the health risks involved necessitate an expedited completion of the health assessment. If you are confirmed as EPA Administrator will you commit to assisting

the local officials to complete the health assessment by the end of the year? Will

you provide the technical resources and equipment necessary to assist the local officials in completing the expedited health assessment?

Response. I am unfamiliar with the Coronet Industries plant. If confirmed, I commit to examining the issues you have raised.

Question 29. For more than 2 years, I have been seeking the completion of the

risk assessment regarding chromated copper arsenate (CCA)-treated wood. If you

are confirmed as Administrator of the EPA, will you commit to the completion of

that risk-assessment by November 2003? Do you further commit to conducting a

public information campaign regarding the findings of the risk assessments to provide local officials and school administrators with guidelines as to how to ensure the

safety of children using CCA-treated playground equipment? In addition, do you

commit to the inclusion in the risk assessment of the dangers posed by mulching

CCA-treated wood?

Response. As I understand it, the industry is phasing out use of CCA treated lumber by the end of 2003 in favor of new alternative wood preservatives. I am not familiar with the specifics of EPA’s risk assessment. If confirmed, I will need to be

briefed in detail on this issue before making any decisions.

RESPONSES BY GOVERNOR MICHAEL O. LEAVITT TO PRE-HEARING QUESTIONS FROM

SENATOR GRAHAM

Question 1. The core principles of Enlibra are focused around consensus seeking

to develop common sense approaches to environmental policies. While it is admirable to bring all of the stakeholders on a given issue to the table, as Administrator

of the EPA you will likely encounter situations that require you to make a final decision in order to make progress. How will you implement our nation’s laws and

carry out the missions of EPA as you apply the principles of Enlibra?

Response. I have served nearly three terms as Governor of Utah and have made

countless final decisions on critical issues facing my State. The Enlibra Principles

express well the core beliefs of my environmental philosophy. It is a philosophy, not

a process.

Question 2. In recent months, there have been some disturbing examples of politics overriding EPA’s duty to provide accurate environmental assessments. What is

your view of EPA’s responsibility to the American people to provide full disclosure

of reliable, accurate information?

Response. I strongly believe it is EPA’s duty to provide critical health information

to the public that is reliable and accurate as soon as that information is gathered

and validated.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR LIEBERMAN

Clean Air Act

Question 1. Do you support full implementation of the Clean Air Act Amendments

of 1990, as signed by the first President Bush?

Response: Yes.

Question 2. As you know, EPA is in the process of implementing the new 8-hour

ozone standard. But some cities still haven’t met all of the requirements for implementing the pre-existing 1-hour standard. Do you favor requiring these areas to

promptly comply with all of their unmet obligations under the 1-hour standard?

Response. I am not familiar with all the issues that may need to be considered

in responding to the question. If confirmed, I would welcome the opportunity to

learn more about this issue.

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Question 3. In the last several years EPA has used a ‘‘downwind extension’’ policy

to weaken clean air requirements in cities like Washington, Atlanta, Baton Rouge,

Beaumont-Port Arthur and Dallas Texas. As a result, these cities have missed clean

air deadlines and have less protective pollution controls than in cities that actually

receive more transported pollution—cities like Baltimore, Philadelphia, New York,

and Chicago. Four U.S. Courts of Appeal have declared the policy illegal. Will you

pledge that you will not seek to resurrect this policy?

Response. I understand the complications of the transport of air pollution across

city borders and look forward to learning more about this important topic. I will

work to promote clean air policies that protect public health in all U.S. cities and

to ensure that EPA’s policies are consistent with applicable legal requirements.

Question 4. According to the National Park Service, air pollution causes impaired

visibility in most national parks virtually all of the time—and in many parks the

problem is worsening. Will you oppose any further delays in the deadlines for States

to adopt regional haze plans to address this problem, as required by the Clean Air

Act. Do you agree with EPA’s 1999 assessment that all States need to require best

available retrofit technology for large, aging factories and power plants, in order to

meet visibility protection goals?

Response. The Regional Haze Rule provides appropriate tools to improve visibility

in our treasured parks and monuments throughout the West. It recognizes the need

for reduced emissions, which can be accomplished through mandated utilization of

Best Available Retrofit Technology (BART), as well as through a set of milestones

and backstop cap-and-trade program to achieve reductions that are better than

BART.

Question 5. The Administration’s energy policy stresses increased oil and gas production on public lands, and is working diligently on all fronts to accomplish that

goal. However, Federal law seeks to prevent significant deterioration of air quality,

in part by designating areas, which were national parks, and wilderness areas in

1977 as ‘‘Class 1’’ areas to be afforded a higher degree of protection from degradation of the air quality. EPA reviews Environmental Impact Statements—a current

example is a draft regarding oil and gas development on the Roan Plateau in Colorado, which I understand shows that the air quality at the Maroon Bells Wilderness

Area will be further degraded by such production. In your view, is it acceptable to

allow further deterioration of Class 1 park and wilderness areas? As EPA Administrator, what will you do about it, both in reviewing these environmental impact

statements and taking enforcement action?

Response. As a result of the western energy crisis, I believe it is fundamental that

we increase our Nation’s energy supply, but that we do so in a way that is environmentally responsible. In Utah, we drafted a new energy policy that increases our

energy supply while reducing air pollution. I intend to continue to use this balanced

approach.

Question 6. EPA is under a court order to enforce the Clean Air Act and issue

a rule by December 31 of this year to reduce toxic mercury emissions from coal-fired

power plants, which are the largest unregulated source in the Nation. Because mercury is a potent toxin that, like lead, causes developmental delays in children at

even tiny quantities, the Clean Air Act requires EPA to set standards based on the

maximum amount that can be technologically reduced. According to a New York

Times report, EPA canceled the technical analysis needed to produce a credible mercury rule after EPA’s top air official consulted with the White House on how to proceed. Will you ensure that the Agency moves with all necessary speed to do the necessary analysis in time to produce the rule this year?

Response. I am not familiar with all of the issues associated with this question,

and, if confirmed, I would welcome the opportunity to learn more about the issue.

Environmental Enforcement

Question 7. I’d like to bring to your attention some recent enforcement data:

In fiscal year 2002—the first full year, of the Bush Administration—Agency data

suggests that the number of penalties recovered from polluters in civil cases that

were settled in Federal court declined by half compared to the previous 3-year average. Defendants paid over $130 million, $84 million, and $94 million, respectively,

in fiscal years 1999, 2000, and 2001 to settle judicial actions. In fiscal year 2002,

the U.S. Government was able to recover only $51 million in civil penalties.

EPA is able to reduce penalties somewhat for those companies willing to undertake ‘‘supplemental environmental projects’’ that bind them to do work that is beyond what is required to comply with the law. Agency data shows that the value

of these SEPs declined from a 3-year average of $106 million between fiscal years

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1999 and 2001 to only $43 million in 2002. Does such a drastic drop in Federal enforcement concern you? Will you pledge to investigate what has occurred here?

Response. Traditional enforcement measures such as number of inspections conducted, number of cases filed, and penalties collected are useful management tools.

It is also useful to look at ‘‘environmental results.’’ If confirmed, I will support a

strong enforcement program while continuing to refine approaches for measuring

environmental compliance and progress.

CAFOs

Question 8. I would imagine that as Governor of a State with a major concentrated animal feeding operation you are familiar with the public health problems

associated. with CAFO’s. Circle 4 Farms has had a variety of problems: 80,000 gallons of waste water have polluted the area’s groundwater, employees have gotten

sick from the fumes, residents complain about the smell and worry they too will be

sickened by toxic fumes. Here in Washington, we’ve seen news reports of CAFO industry representatives meeting secretly with EPA to negotiate an exemption from

the Clean Air Act and CERCLA for CAFO’s. As Administrator, would you support

curtailed enforcement of the Clean Air Act or CERCLA for CAFO’s? Would you support an exemption from these laws for CAFO’s?

Response. I have not been involved in or briefed on any efforts that you reference.

However, Utah has been a leader in the design of the On-Farm Assessment program

for the hog industry which addresses all environmental media. Utah also has developed an aggressive program to implement the EPA CAFO rules in our State, which

includes inspecting nearly every animal feeding operation (approximately 3000).

This program has been touted as an effective model for other States. Regarding Circle 4 Farms, there have been no Clean Water Act violations and no discharges to

surface waters at any time. Our State also regulates Circle 4 through a State

groundwater permit to insure that groundwater is protected. There have been three

formal enforcement actions taken of this permit resulting in a total fine of $48,564.

Groundwater at the site is maintained at high quality.

Question 9. Utah’s Department of Environmental Quality, Division of Water Quality, submitted comments in opposition to EPA’s new rules regulating CAFO’s, asserting that the ‘‘Utah Strategy’’ is the preferred approach. As I understand it, the

Utah Strategy provides for ‘‘voluntary’’ compliance for 5 years, with enforcement action to be taken only after the 5 years have passed. Do you concur that years of

‘‘voluntary compliance is the preferred approach?

Response. Utah has not opposed EPA’s new CAFO rules, but did make comments

during rule development to ensure that our effective strategy to quickly and completely address these operations was not preempted. As a result of our strategy, we

are far down the road in implementing the new CAFO rule. Nearly every animal

feeding operation in the State has been inspected (almost 3000) to identify every

CAFO. All large CAFOs have already been permitted as a result. Small animal feeding operations with runoff problems are tracked and allowed time to voluntarily correct deficiencies. If continuous progress is not made over a defined period of time,

enforcement actions or permits will be initiated. The Utah strategy has been very

comprehensive in identifying problems and results in permitting or corrective action

much sooner than what would be achieved by a traditional Federal approach.

Question 10. With this background, what assurance can you provide us that as

EPA Administrator you will insure that EPA aggressively oversees the States to insure compliance with the new regulations and will take enforcement action when

necessary?

Response. As I have mentioned in my previous response, Utah has not hesitated

to take enforcement actions where warranted and required under either Utah or

Federal law. Similarly, I understand and support the need for reasonable and effective oversight of State programs while providing States the flexibility granted under

Federal law to tailor programs to most effectively achieve environmental results.

Question 11. I understand that you signed legislation prohibiting Utah residents

from suing CAM’s on nuisance grounds. If you are not aggressive about enforcing

the requirements of the law, what recourse do members of the public have to protect

their health?

Response. I have included the text of law (UC 73–38–7) to which you refer below.

This statute was enacted in 1995 and is a result of urban encroachment on existing

agricultural activities. It is an unfortunate phenomena that people often build new

residences near existing agricultural operations, to enjoy the open space and rural

setting, only to eventually complain about normal farm smells. This statute does

protect public health and safety. It also requires agricultural operations to comply

with Federal, State and local laws.

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78–38–7. Agricultural operations—Nuisance liability.

(1) Agricultural operations that are consistent with sound agricultural practices

are presumed to be reasonable and do not constitute a nuisance unless the agricultural operation has a substantial adverse effect on the public health and safety.

(2) Agricultural operations undertaken in conformity with Federal, State, and

local laws and regulations, including zoning ordinances, are presumed to be operating within sound agricultural practices.

Question 12. This Administration does not have a strong record of enforcement of

CAFO’s. For example, I understand that the Bush EPA has filed only one Clean

Water Act case in court and 30 administrative actions against CAFO’s. As EPA Administrator do you intend to reinvigorate the enforcement of the Clean Water Act

and the Clean Air Act against CAFO’s (and indeed other sources of pollution) or will

you continue on the course set to date by the Administration?

Response. The objective is compliance with environmental laws. I am aware of national concerns regarding CAFOs. I am also aware that EPA has recently issued revised regulations to better address water pollution from these operations. I am not

familiar with enforcement issues regarding CAFOs. If confirmed I look forward to

being briefed on CAFO compliance, including State and Federal enforcement.

Question 13. Just recently, there has been leaked to the press an amnesty deal,

in which EPA ‘‘covenants not to sue’’ huge animal factories for violations of the

Clean Air Act the Comprehensive Environmental Response, Compensation, and Liability Act (‘‘CERCLA’’ or ‘‘Superfund’’ law). In exchange for EPA’s commitment not

to sue, CAFOs will pay $500 in penalties and will contribute $2,500 toward a monitoring fund. Any CAFO (or smaller animal feeding operation) may achieve immunity

from EPA prosecution by paying these moneys. Will you support this amnesty deal?

Response. I am .not familiar with the specifics of these negotiations. If confirmed,

I will review them and decide based upon the merits of the issues.

Global Warming

Question 14. According to the National Academy of Sciences report in June 2001—

a report requested by the Bush White House:

‘‘Greenhouse gases are accumulating in Earth’s atmosphere as a result of human

activities, causing surface air temperatures and subsurface ocean temperatures to

rise. Temperatures are, in fact rising. The changes observed over the last several

decades are likely mostly due to human activities, but we cannot rule out that some

significant part of these changes are also a reflection of natural variability.’’

(A) Do you agree that global warming is occurring?

(B) Do you agree that the 1990’s were the hottest decade on record?

(C) Do you agree that most of the warming that has occurred over the last 50

years is due to human activities?

(D) Do you agree that global warming threatens water resources?

(E) Do you agree that global warming threatens vulnerable ecosystems, such as

alpine meadows?

Are you aware that the concentration of CO2 in the atmosphere has risen more

than 30 percent since the beginning of the industrial revolution?

Are you aware that CO2 and other greenhouse gases remain in the atmosphere

for decades to centuries, and that as a result, we will be stuck with elevated concentrations of these gases for hundreds of years?

Even if there are uncertainties about the precise impacts from continued emissions growth, isn’t it dangerous to let CO2 concentrations keep rising to levels that

haven’t been seen in the whole history of the human race?

(I) Are you aware that power plants are the largest source of CO2 emissions in

the U.S., responsible for 40 percent of U.S. CO2 emissions?

(J) Are you aware that automobiles are the second largest source of CO2 emissions

in the U.S., responsible for about 20 percent of U.S. CO2 emissions?

Are you aware that the Administration’s voluntary ‘‘goal’’ for CO2 emissions would

allow emissions to continue rising by 14 percent over the next decade—the same

rate that they increased during the last decade?

Response. I am aware of the June 2001 National Academy of Sciences report, but

I do not have sufficient knowledge of the science to provide definitive answers to

this series of questions. The President has proposed a series of immediate, deliberate actions that I fully support: establishment of a national goal on the reduction

of greenhouse gas intensity, substantial increases in research, partnerships within

the international and industrial sectors, new agriculture sequestration projects, and

focus on new technologies. These steps will enable us to see reductions in greenhouse gas intensity from the work of the international, industry, and agriculture

sectors in the short term, while increasing research and developing new technologies

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for the intermediate to long term. By initiating this work, we will be better able

to inventory reductions from sectors and technologies.

Protection of the Ozone Layer

A very disturbing scientific report last week indicates that the Antarctic ozone

hole is larger this year than it ever has been before. This raises serious questions

about whether we have yet turned the corner on recovery of the earth’s fragile ozone

shield.

Question 15. Governor Leavitt, do you think the United States is doing enough

to protect the ozone layer from ozone-destroying chemicals?

Response. I am aware that the U.S. has been a partner in the Montreal Protocol— the international agreement to phaseout harmful ozone-depleting chemicals. I look

forward to learning more about what can be done to further protect the ozone layer.

Question 16. The report on this year’s ozone hole is particularly disturbing in light

of the Bush Administration’s slackening efforts to protect the ozone layer. The U.S.

is seeking huge exemptions from the Montreal Protocol—a Senate-ratified treaty

that the U.S. helped negotiate—for methyl bromide, the most dangerous ozone-destroying chemical still in widespread use. Are you aware that the U.S. exemption

request for methyl bromide would reverse the phase-out of this chemical and increase the amount produced in the United States?

Response. I am not familiar with all of the issues associated with the use of methyl bromide. I look forward to learning more about this area and the United States’

efforts to implement the requirements of the Montreal Protocol. I will work to uphold all international agreements and protect the ozone layer.

Question 17. Why should the U.S. Government reverse the phase-out of methyl

bromide and allow production of this very dangerous chemical to increase again?

Response. I am not familiar with all of the issues associated with the use of methyl bromide. I understand the phase-out of methyl bromide is an important issue,

and I will work to find alternatives to chemicals such as methyl bromide.

Question 18. Methyl bromide is also an extremely toxic chemical—capable of killing large numbers of people who inhale only small amounts. Are you aware that

the Department of Homeland Security has expressed concern over the risk that terrorists could kill thousands of people by hijack and releasing supplies of methyl bromide that are in everyday commerce?

Response. I understand there are concerns with the use of methyl bromide and

will work to find alternatives to such chemicals. I will look into the issue of terrorist

usage of such chemicals and coordinate with the Department of Homeland Security

to see what EPA can do to help ensure that such chemicals do not get into the

hands of terrorists.

‘‘Whirling Disease′′

Question 19. You have characterized science as often ambiguous and reflecting the

underlying values of the scientists who make assumptions in the scientific process.

During your tenure as Governor of Utah, there was a ‘‘realignment’’ of the Division

of Wildlife Resources (DWR) in which more than 70 employees lost their jobs and

which also resulted in the creation of a new.board for the control of aquaculture,

according to news and subsequent reports. Among the jobs eliminated were those

held by a herpatologist whose honesty about the decline of the frog population in

Utah was reportedly unacceptable to Utah developers and by several staff throughout the DWR who had been involved in the investigation of ‘‘whirling’’ disease at

the Leavitt family fishery and the illegal transfer of fish from there to other waters.

(A) How do you respond to critics who assert that EPA employees who do not

make ‘‘politically correct’’ assumptions during the scientific process, or who pursue

investigations based on the facts, will, like those employees in Utah, be reorganized

out of their jobs?

Response. This question is based on inaccurate information. I support the use of

science for facts and recognize the capabilities of EPA staff to bring the best science

to solving problems. The reorganization of Utah Wildlife Division. responsibilities

and employees was not in response to actions of individual employees. The reorganizations were conducted within the Department of Natural Resources when a new

Department Executive Director was appointed at the beginning of my administration; I had no role in the reorganization. The former Chief of Fisheries, Bruce

Schmidt, made it clear in a public forum letter published in the Salt Lake Tribune

that, ‘‘throughout the attempt to clean up whirling disease, the Governor had no direct involvement in the decisions made regarding the investigation or the negotiations on actions required to eliminate and/or contain the disease.’’ (Salt Lake Tribune, 9/13, 2003.)

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(B) In response to concerns expressed regarding the current state of morale at the

EPA, you have stated that you would work to gain the confidence of the employees,

spend time listening to them, and try to understand the source of the problem. In

light of this history at the DWR, how do you propose to gain the confidence of EPA’s employees?

Response. The organizational change referred to occurred more than a decade ago

and ultimately resulted in both improved efficiency and morale. I look forward to

meeting with EPA employees to listen to them, understand the issues, and discuss

the options and recommendations on environmental issues. I hope to earn their

trust through working together, solving problems, and leading by example.

Clean Water Act

Question 20. As EPA Administrator you would have responsibilities as a custodian

of the nation’s wetland resources. The EPA has the power to veto permits issued

by the Army Corps of Engineers for the dredging or filling of wetlands, an authority

seldom exercised. Are there any circumstances under which you, as EPA Administrator, would veto a proposed permit in order to protect wetlands? If so, please describe the principles that would guide your veto decision.

Response. As I mentioned during my confirmation hearing, as a Governor over the

course of the last 11 years I have worked on many different occasions on issues related to wetlands. Wetlands are a very important part of a natural heritage that

we want to protect. If confirmed, I would look at the facts of any particular case

and the options available to me to determine a course of action.

Question 21. A key protection for wetlands is contained in the Section 404(b)(1)

Guidelines and prohibits issuance of a permit for any non-water-dependent project

with impact to wetlands if a practicable alternative with less impact is available.

This rule, in essence says, that because wetlands are so valuable, they should not

be built in if there is a sensible way to avoid doing so. However, this protection is

not fully complied with. What would you do to insure compliance with this requirement?

Response. I am not familiar with the specifics regarding this particular issue and,

if confirmed, would ask to be briefed and then make an informed decision on how

to advance protection of wetlands.

Question 22. The American taxpayers are spending approximately $8 billion to restore the Everglades which has been damaged by sprawling development during the

past fifty years. Now there are reports that the Federal agencies, including the Environmental Protection Agency, are allowing similar sprawling developments in

Southwest Florida in an area referred to as the Western Everglades. As a result,

there is a loss of watershed and wetland function, of critical habitat for threatened

and endangered species, and of clean water in an area which is a valuable national

resource. I have written to the acting Administrator asking what steps the EPA is

taking to protect the Western Everglades. What assurances can you provide that we

will not continue the same development mistakes that we made in Southeast Florida in Southwest Florida? What steps are you prepared to take to protect the Western Everglades?

Response. Although I am not familiar with the particulars of the impact of development during the past 50 years on the Everglades, I do know that this Administration recognizes the importance of working to protect the sensitive aquatic resources

of the Everglades. If confirmed, I intend to learn more about this issue and the appropriate role for EPA in this important work.

RESPONSES BY GOVERNOR MICHAEL O. LEAVITT TO PRE-HEARING QUESTIONS FROM

SENATOR LIEBERMAN

New Source Review

Question 1. The Utah Department of Environmental Quality, Division of Air Quality (DAQ), wrote a letter to the U.S. Environmental Protection Agency on March 21,

2003 (on letterhead with your name). DAQ criticized the proposed routine maintenance, ‘‘repair and replacement’’ rule that EPA had proposed on December 31, 202.

The Division wrote that the proposed rule ‘‘adds an additional complex regulatory

program to the existing case-by-case RMRR exclusion procedure.

Question 1(A). Did that specific criticism refer, at least in part, to the proposed

rule’s ‘‘equipment replacement’’ provision which EPA then promulgated on August

27, 2003? If you believe it did not, please explain why not.

Response. I do not know but am told that the specific suggestion did not refer to

‘‘equipment replacement.’’ The Division expressed nine concerns that were all diVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00126 Fmt 6633 Sfmt 6621 92385 SENENV1 PsN: SENENV1
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rected to the Annual Maintenance, Repair and Replacement Allowance (AMRRA)

proposal and not the Equipment Replacement Provision (ERP) that was adopted in

the final rule.

Question 1(B). If you believe it did, please state whether or not you agree or disagree, with the criticism and the reasons for your agreement or disagreement.

Response. The Utah Department of Environmental Quality’s primary concern was

that New Source Review needed to be improved. Our suggestions were received and

properly weighed; all were addressed.

Question 2. On March 31, 2003, the Director of the Utah Division of Air Quality

testified at a public hearing about the proposed ‘‘routine maintenance, ‘‘repair and

replacement’’ rule that EPA had published on December 31, 2002. His testimony

identified four flaws in the proposed rule and concluded by stating: ‘‘The Utah Division of Air Quality thinks that the proposal will only create more bureaucracy, cost,

and uncertainty with no proven environmental benefit.’’

Question 2(A). Were the four specific criticisms meant to apply, at least in part,

to the proposed rule’s equipment replacement’’ provision, which EPA then promulgated on August 27, 2003? If your answer is ‘‘no’’ with respect to any of the four

specific criticisms, identify the criticism and please provide the basis for your answer. Response. I am not aware of the intent, but as I read the letter, it appeared to

be advancing the view that further simplicity could be achieved, plus a concern that

adequate records may not be available in some situations.

Question 2(B). For each of the four specific criticisms that were meant in your

view, to apply to the ‘‘equipment replacement’’ provision, please state whether you

agree or disagree with the criticism. In the instances in which you disagree, please

provide the factual basis for the disagreement.

Response. None of the four specific comments appear to reference equipment replacement.

Question 2(C). Was the concluding statement quoted above meant to apply, at

least in part, to the ‘‘equipment replacement’’ provision? If no, please provide the

basis for your answer. If the answer is ‘‘yes,’’ please state whether you agree or disagree with the criticism. If you disagree with the criticism, please provide the factual basis, if any, for your disagreement.

Response. I did not preview Mr. Sprott’s comments and cannot be sure what he

meant.

Question 3. The General Accounting Office has reported that the recent rules

amending the exceptions to the New Source Review program were based on only anecdotal evidence provided by industry groups. (United States General Accounting

Office, Clean Air Act: EPA Should Use Available Data to Monitor the Effects of Its

Revisions to the New Source Review Program (GAO–03–947 August 2003)). Even

Assistant Administrator Jeffrey Hohnstead acknowledged this fact. Do you support

a rulemaking such as this that is not based on any empirical analysis? Would you

support a rulemaking under your supervision that was based only on anecdotal evidence?

Response. As noted previously in response to Senator Jeffords’ question #6, I am

aware that there are differing perspectives concerning the recent changes made by

EPA to the New Source Review program. If confirmed, I would like to understand

in greater depth and detail the data, issues, and perspectives associated with this

complex subject. I look forward to the opportunity to be briefed in detail on the NSR

changes.

Question 4. The reforms to the New Source Review program have been criticized

by the General Accounting Office, the Nation 1 Academy of Public Administration,

and State and local air regulators (STAPPA/ALAPCO). Would you be willing to

delay the finalization of the rules to account for these critiques? If not, do you believe that the GAO, NAPA, and STAPPA/ALAPCO are all incorrect in their criticism?

Response. Please see the response to Senator Lieberman’s question #3, above.

Question 5. In the fiscal year 2003 Omnibus Appropriations legislation, the EPA

was instructed to commission a study regarding the environmental and public

health impacts of the New Source Review reforms that were finalized on December

31, 2002. If this study shows that the rule will increase pollution and/or have negative environmental and public health impacts, will you rescind the rule?

Response. Please see the response to Senator Lieberman’s question #3, above.

Question 6. If emissions are demonstrated to increase as a result of either the

New Source Review rulemaking or through some other credible source, would you

rescind the rule in question?

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Response. Please see the response to Senator Lieberman’s question #3, above.

Question 7. Under the New Source Review reforms, States are permitted to implement their own rules if they are more stringent than the Federal rule. How would

you define ‘‘more stringent than the Federal rule?’’ What burden would the States

need to satisfy to implement their own rules?

Response. Please see the response to Senator Lieberman’s question #3, above.

Question 8. The August 27, 2003 final New Source Review rules regarding the definition of ‘‘equipment replacement’’ are thought to be legally suspect by many legal

commentators. If these rules are struck down by the courts, would you enforce the

previous rules against any emitters that undertake offending projects that were permitted under the new definition of ‘‘equipment replacement?′′ Response. Please see the response to Senator Lieberman’s question #3, above.

Question 9. Currently, some 13 States plus local air districts in California have

petitioned the court to overturn the New Source Review rule finalized on December

31, 2002. In addition, various States have vowed to or have already filed legal challenges against the August 27, 2003, final New Source Review rule on ‘‘equipment

replacement. Should the States succeed, and the rules be deemed invalid, will you

vow to reform New Source Review by requiring all grandfathered facilities to install

modern pollution controls within the next 10 years as recommended by NAPA?

Response. Please see the response to Senator Lieberman’s question #3, above.

Question 10. Since the summer of 2002, Senator Jeffords and I have repeatedly

asked for documents pertaining to EPA’s internal analysis of the New Source Review rulemakings, including analysis of the enforcement cases and the emissions

impacts of the rules that have now been finalized.

Will you request of EPA that this information be provided to us prior to your confirmation hearing?

Response. It is my intention to work with you in a way that would supply us both

with information needed to meet our common goal, which is clean air. If confirmed,

I will look into this request for information.

Application of Enlibra Principles

Question 11. You took the lead in developing the ‘‘Enlibra’’ principles which were

adopted by the Western Governor’s Association for the management of environmental issues. You have also stated that you will use the Enlibra principles as a

model at the Environmental Protection Agency if promoting collaboration among

stakeholders.

One of these principles is the following:

‘‘Collaboration, Not Polarization—Use Collaborative Processes to Break Down

Barriers and Find Solutions.’’

Yet in April, you participated in two nationally significant public land policy decisions—the April 9 Memorandum of Understanding between Utah and the Department of Interior on processing RS2477 rights of way claims under the new disclaimer rule and the April 11 settlement agreement with Utah prohibiting the designation of new wilderness study areas on our public lands. These agreements were

reached through a secret, non-public process and affected not only the public lands

located in Utah, but public lands throughout the Western United States. With regard to the MOU, critics assert that you refused to involve several stakeholder

groups in the MOU negotiations despite—epeated requests to do so and further,

that you have continued to withhold all information on the negotiations.

(A) Explain how the process for negotiating these two significant agreements with

the Department of the Interior was consistent with the Enlibra principle of collaboration.

(B) Public participation is a fundamental tenant of public land decisionmaking.

Please explain why you believed it was appropriate to reach these agreements behind closed doors in contradiction of the principle of public participation.

(C) What assurances can you provide to skeptics that your application of the

Enlibra principle of collaboration and inclusion will be different in your role as Administrator of the EPA than it was in the development of the April agreements?

Response to A, B & C. The MOU is an agreement to open a collaborative public

administrative process in which every American can participate. The MOU itself

does not decide the ownership of a single road. The April 11 agreement was the settlement of 7 years of litigation. During that period, any stakeholder could have intervened, but chose not to.

The RS2477 agreement establishes a classic collaborative process that will avert

decades of polarization and expensive litigation. The wilderness lawsuit occurred because collaboration broke down. I have engaged. in numerous attempts to resolve

wilderness disputes, including a collaboration where former Interior Secretary BabVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00128 Fmt 6633 Sfmt 6621 92385 SENENV1 PsN: SENENV1
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bitt and I were able to reach agreement, but the extremes on both sides of the discussion killed the proposal.

My record as Governor includes many notable examples of successful problem

solving on a large scale issues: Envisions Utah, Partnership For Quality Growth,

Western Regional Air Partnership, and the Grand Canyon Visibility Transport Commission are all examples.

Question 12. You have advocated the principles of Enlibra for problem-solving instead of politics, litigation and obstructionism. Yet your administration as Governor

of Utah has successfully utilized litigation or the threat of litigation to influence national public policy; notably, the agreements described above were reached after

Utah threatened or filed lawsuits. The current Administration has made use of the

settlement of lawsuits as a device for establishing significant public policy to the exclusion of members of the public. What assurances can you provide to critics who

are concerned that as EPA Administrator you would profess a model of ‘‘collaboration’’ under the Enlibra principles but at the same time welcome lawsuits which provide an opportunity for additional closed door policymaking in settlement agreements like that which occurred in the Department of the Interior agreements?

Response. The wilderness litigation was not a welcome lawsuit for either side.

Again, I strongly believe in the principle of collaboration and will apply it whenever

and wherever conditions are appropriate. Collaboration rather than polarization or

litigation will always be my preferred method of doing business, and I commit to

deploying it the best of my ability.

Adherence to Precedent

Question 13. The settlement agreement between the State of Utah and the Department of the Interior which prohibits the Bureau of Land Management from

inventorying wilderness-quality lands and designating new wilderness study areas

adopted an interpretation of the Federal Land Policy and Management Act which

contradicts all previous administrations dating back to President Jimmy Carter and

including Presidents Reagan and George H.W. Bush. What re-interpretations of the

clean air and water laws can we expect from you as EPA Administrator?

Response. I enthusiastically support the creation of more wilderness in Utah. I

have engaged in repeated attempts, dating from before my election as Governor, to

get Congress to pass a wilderness bill for Utah. Secretary Babbitt and I jointly put

forward a bill resolving the wilderness issue for half of the State, but without success. Long experience has taught me that there is a lot of wilderness to be made

down the middle, but no wilderness to be made on the extremes.

I understand the Congress often provides flexibility in implementing environmental policy. I intend to faithfully implement the Clean Air Act and Clean Water

Act administered by EPA to ensure protection of human health and the environment.

Concentrated Animal Feeding Operations

Question 14. Large animal feeding operations or, CAFOs, have been identified as

major point sources of water pollution and air pollution. EPA, however, has taken

few steps to regulate these pollution sources, although they are clearly subject to

Federal environmental pollution control laws.

(A) What actions will you take to control these sources?

Response. I am aware of national concerns regarding CAFOs. I am also aware

that EPA has recently issued revised regulations to better address water pollution

from these operations. In my State, we have completed inspections of essentially

every animal feeding operation (about 3000). Every large CAFO has been permitted

and the medium and small ones have been identified and targeted for compliance

assistance or regulatory permitting.

Question 14(B). Since 2002, EPA has imposed a moratorium on enforcement

against air emissions from CAFOs. What act on will you take to reverse that moratorium?

Response. I am not personally familiar with this enforcement moratorium. If confirmed, I will request a briefing on this issue.

Question 14(C). The Environmental Protection Agency has privately negotiated

with CAFOs regarding potential amnesty from the Clean Air Act in exchange for

limited monitoring of pollution at some CAFOs. Will you end the so-called settlement discussions with industry and act to collect data regarding air emissions?

Response. I am not familiar with the specifics of these negotiations. If confirmed,

I will review them and decide based upon the merits of the issues.

Question 15. The General Accounting Office recently issued a report finding that

EPA and the States are ill prepared for implementation of EPA’s new rule for reguVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00129 Fmt 6633 Sfmt 6621 92385 SENENV1 PsN: SENENV1
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lating wastewater discharges; Livestock Agriculture: Increased EPA Oversight Will

Improve Environmental Program for Concentrated Animal Feeding Operations. (CAO–03–285, January 2003). The States have failed to provide for the additional staff

required to process permits, conduct inspections and take enforcement actions. In

addition, EPA has not provided for additional resources to carry its oversight responsibilities.

(A) What actions will you take to insure the ability of the States to implement

this program?

Response. I am not familiar with the NAS report or the status of permitting and

enforcement actions in other States. If confirmed I will have an opportunity to become more knowledgeable about other State programs. The success of the Utah

CAFO program may prove useful. Through a partnership of the DEQ Division of

Water Quality, the Department of Agriculture and Food, EPA, the U.S. Natural Resource Conservation Service, and the Utah Farm Bureau, all of Utah’s CAFOs (over

3000) have been inventoried in the last 18 months. All large CAFOs requiring permits have been permitted. Where groundwater protection is of concern, permits

have also been issued under the State’s groundwater protection program. Small

CAFOs are implementing best management practices; operations with problems are

being monitored and will be required to be permitted if conditions do not improve

to meet standards. All of this work has been accomplished without additional Federal or State funding, utilizing 1/3 of a scientist’s time within the DEQ Division of

Water Quality to manage the program.

Question 15(B). The GAO report was also critical of EPA’s failure to exercise adequate oversight of the States which, in some cases, have failed to issue permits for

operations that may threaten water quality. Describe your philosophy regarding

oversight of this important program and the action that you will take to improve

EPA’s oversight.

Response. I am neither familiar with EPA’s oversight of other State programs nor

aware of the comments in the GAO report regarding EPA’s oversight. If confirmed

as Administrator of the EPA, I expect to be briefed on this matter.

Question 16. The EPA is currently conducting a variety of studies of the impact

of the constituents of CAFO wastes on public health What assurance can you provide that these studies will continue? What actions will you take to ensure a thorough and accurate scientific review, without improper bias, so that the investigators

may objectively focus on the issues at hand?

Response. I am not aware of the specific studies that EPA is currently conducting

related to CAFO wastes. If confirmed, I would need to assess what ongoing efforts

the Agency is conducting in this respect. Overall, I do believe it is a priority to use

the best available science and data to support policy decisions and that all major

scientific work products should undergo peer review.

Toxic Release Inventory

Question 17. Do you support the public’s right to know through the EPA’s Toxic

Release Inventory Program (TRI) about toxic, chemicals released into their air and

water?

Response. Yes. The public needs information about the environment in their area.

This type of information allows people to make informed decisions that affect their

individual lives and communities. The Toxic Release Inventory can provide useful

information for individuals and community planning, as long as the report is used

in the context of TRI, not as a reflection of perceived environmental violations.

Question 18. The EPA has consistently supported a strong Toxic Release Inventory Program, in order to protect the public’s right to know about toxic pollution,

including pollution from the mining industry. According to an August 26, 2003 letter

from Marianne Horinko, Acting Administrator, the EPA intends to engage in a rulemaking to clarify how mining pollution must be reported under the program. Given

the agency’s past strong support for the public’s right to know, will you commit to

ensuring that this rulemaking will continue to allow the public to get information

about all toxic releases from mining operations, such as arsenic, lead and mercury,

regardless of what form those toxic releases take—waste rock or other material?

Response. I am aware of the arguments regarding the listing of mining wastes

as part of the TRI and that the EPA intends to clarify the rules. However, I am

not familiar with all of the issues surrounding the specific topic that you mention.

I look forward to learning more about this specific issue, if confirmed.

Hardrock Mining

Question 19. In a February, 2003 internal report prepared by EPA’s Office of Enforcement and Compliance, Utah was identified as one of 14 States which had sigVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00130 Fmt 6633 Sfmt 6621 92385 SENENV1 PsN: SENENV1
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1Gugliotta, ‘‘Study Documents Failure to Enforce Clean Water Act,’’ The Salt Lake Tribune,

June 6, 2003.

nificant non-compliance with discharge requirements under the Clean Water Act.1

In the past 2 years, according to EPA’s Enforcement and Compliance history,

Kennecott Mining in Utah has exceeded the discharges allowed under its Clean

Water Act permit, 6 times, including mercury releases which exceeded its NPDES

permit by 900 percent. Given the record of significant non-compliance in Utah, what

assurance can you give that you will act to ensure full enforcement of the Clean

Water Act, especially with regard to hardrock mining operations?

Response. It is my intention to ensure that the Clean Water Act is enforced fairly

and equitably. I inquired of the Utah Department of Environmental Quality and

was supplied with the following. At the time the reports were pulled from PCS, our

data entry was incomplete, and the missing data was flagged as violations. The data

are now current, and Utah’s rate of noncompliance ranks with the 10 best States

in the Nation.

I am informed that the Kennecott violations cited in the report, five of the six

were not actual violations. Three of the reported violations were due to data entry

errors in PCS, one was a reporting error by the permittee, and one appears to be

a problem with the PCS system itself. The data base has been corrected. One item

which is flagged as a violation is for a compliance schedule being missed on a special environmental project done by a third party. This information should not have

been coded into PCS in the first place and is not a Kennecott violation. The reported

900 percent exceedance of mercury was due to an error in coding of the effluent limits. Their actual discharge did not exceed permit limits.

Question 20. EPA has been criticized for inadequate oversight of permitting programs. What will you do improve EPA oversight of the NPDES program?

Response. It is my understanding that EPA staff have already begun productive

discussions with the States about a number of options to improve oversight of the

NPDES program. I look forward to hearing the results of those discussions and promoting efforts to improve both Federal and State performance in this area.

Question 21. An August 2003 EPA Inspector General’s report evaluating the

EPA’s Hardrock Mining Framework recommends that the EPA should determine

the estimated financial, human health and environmental impacts associated with

hardrock mining sites where the EPA currently has primary responsibility for handling cleanup as well as hardrock mining sites where there is future likelihood that

EPA may have lead cleanup responsibility. (IG Report No.2003—P–00010, August

7,2003).

(A) Do you agree that this is an important task?

Response. I am not familiar with the specific findings. or conclusions of the August 2003 EPA Inspector General report on hardrock mining. Generally, as Administrator, I will seriously consider the findings of the Inspector General and seek the

advice of Agency experts in responding to such findings.

Question 21(B). How would you go about gathering this information?

Response. Please see response to Senator Lieberman’s question #21-A, above.

Question 22. The 2003 IG Hardrock Mining report found that State permitting

and enforcement programs are often not effective for the various environmental

problems related to hardrock mining pollution.

(A) Will you commit to giving mining States adequate oversight to help effectively

implement Clean Water Act permitting at hardrock mines?

(B) The 2003 IG Hardrock Mining report also found that the EPA is not fulfilling

its commitment to implementing the Mining Framework, the goal of which is to protect human health and the environment at proposed, active, and abandoned mine

sites on both Federal and non-federally managed land though appropriate and timely pollution prevention, control and remediation.

Response to A and B. While I am not familiar with the specific findings or conclusions of the August 2003 EPA Inspector General report on hardrock mining, I agree

that there needs to be an effective partnership between EPA and States in implementing the Clean Water Act to protect human health and the environment.

Question 23. What commitments will you make to strengthen the role of the EPA

in assuring the cleanup of toxic mining waste?

Response. If confirmed, I will continue the strong EPA commitment to clean up

toxic waste sites based on their risk to human health and the environment.

Question 24. A June 1997 IG report found that EPA has not pursued mining regulatory opportunities under the Resource Conservation and Recovery Act to mitigate

the environmental damage from mining waste. (EIDMF6–08–0016–7100223, June

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1997). Will you commit to pursuing the regulatory options which are available to

EPA under RCRA?

Response. I am not familiar with the specific findings or conclusions of the June

1997 EPA Inspector General report on regulatory opportunities under the Resource

Conservation and Recovery Act (RCRA). If confirmed, I am committed to the effective implementation of EPA’s RCRA program.

Question 25. Currently, mining sites make up 87 of the sites on the National Priority List for the Superfund program; demonstrating that the Superfund program

is critical for ensuring the cleanup of mining sites. Will you commit to ensuring that

the resources of the Superfund program are used to clean up mining sites?

Response. If confirmed, I am committed to the effective and efficient use of funds

for all sites listed on the Superfund National Priorities List (NPL), including those

that are mining sites.

Question 26. Will you commit to ensuring that the resources are sufficient to ensure cleanup that will protect the environment and human health at all NPL sites?

Response. If confirmed, I am committed to the effective and efficient use of funds

for the cleanup of Superfund toxic waste sites to protect human health and the environment.

Cost Benefit Analysis

Question 27. What is your view about the appropriate role and methodology of

cost-benefit analysis in establishing pollution-control requirements and in other environmental regulatory decisionmaking? What is your view about the appropriate

role of comparative risk assessments that make judgments about allocation of agency resources and priorities based on the comparative risks of different regulated activities and costs of controlling those risks?

Response. If confirmed, I am committed to efficient use of funds for the cleanup

of Superfund toxic waste sites to protect the health and the environment.

In my experience on the State level, agencies consider, among other things, the

costs and benefits of potential regulations. It is my understanding that at the Federal level, the use of cost-benefit analysis is dictated by both statute and Executive

Orders. If confirmed, I expect to be fully briefed on this process including the potential role of comparative risk assessment.

Question 28(A). In so far as you support the application of cost-benefit analysis

and comparative risk analysis in environmental decisionmaking generally, what

methodology and standards will you apply in developing and approving regulations

under environmental statutes that require ‘‘technology standards’’ or protection of

public health with an adequate margin of safety, or ‘‘feasibility’’ standards, or protection of the environment?

Response. If confirmed, I intend to-full) comply with all environmental statutes.

Question 28(B) If an environmental technology standard, for example, satisfies the

statutory criteria mandating such a standard, what assurance can you provide that

you will not reject or delay the standard because you conclude that it fails a cost

benefit test or is low priority under a comparative-risk test?

Response. If confirmed, I intend to comply with all of our environmental statutes.

Question 29. Some of the goods involved in environmental policy—e.g., aesthetic

values, the quality of life in a community, ecological values, health values, and distributional concerns—are qualitatively diverse, and are difficult or impossible to

monetize, or even quantify. Do you agree? How do you believe such values should

be characterized and taken into account in regulatory decisionmaking?

Response. I am not familiar enough with EPA’s current practices to comment. If

confirmed, I look forward to spending more time on this issue.

Question 30. A decision to discount the value of future benefits, and, if so, the decision to apply a steep discount rate, can very significantly reduce the estimated

benefits of certain regulations, like many environmental regulations, that prevent

long-term ecological harm and long-latency diseases like cancer. Discounting generally has much less downward effect on the calculated benefits of safety regulations, which tend to prevent more immediate injuries.

(A) Do you agree?

(B) What are your views about whether to discount and what discount rate to use?

(C) How would you apply discounting to regulations that protect future generations?

(D) Should we apply a method for calculating benefits under which the preservation of the lives of our children counts for less than preserving our own lives?

Response to A-D. If confirmed, I will review EPA’s current policy regarding discounting before making a decision. This is a very complex issue, and I look forward

to learning more about it.

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Question 31. EPA has traditionally placed an equal value on all lives saved by

environmental protection. However, in connection with its ‘‘Clear Skies’’ initiative

and other recent regulatory proposals, the administration applied the so-called ‘‘senior discount’’ factor, an alternative valuation . methodology under which the lives

of Americans seventy and over were calculated to be worth 37 percent less—than

the level at which all other, younger Americans were valued. Using this cynical tool,

the Administration was able to diminish the apparent benefit of life-saving environmental regulations. After a firestorm of criticism from angry seniors, Christine Todd

Whitman announced on May 7, 2003, that EPA would no longer use this valuation

method.

‘‘The senior discount factor has been stopped,’’ Administrator Whitman was

quoted as saying. ‘‘It has been discontinued, EPA will not, I repeat, not, use an ageadjusted analysis in decisionmaking. (Katharine A, Seelye and John Tiemey, ‘‘EPA

Drops Age-Based Cost Studies,’’ The New York Times, May 8, 2003)

(A) Will you likewise ?commit that, if you are confirmed as EPA Administrator,

EPA will not use an age-adjusted analysis in decisionmaking?

Response. I am not familiar with Governor Whitman’s basis for that statement,

but I will review the policy, if confirmed.

Question 31(B). What is your opinion of the use of the Quality-Adjusted-Life-Year

(QALY) to measure the benefits of air pollution controls?

Response. I am only generally familiar with cost-benefit analysis and therefore,

I am not familiar with the particulars of this issue. I look forward to learning more

before articulating a position.

Clean Water Act

Question 32. Currently, the EPA is considering a rulemaking that would redefine

waters over which the Federal Government has jurisdiction. (See January 15, 2003

Federal Register Advance Notice of Proposed Rulemaking (48 Fed, Reg. 1991)).

(A) What is your position on this role?

(B) Are you aware that it would significantly diminish Federal jurisdiction over

water pollution?

(C) How do you respond to the recent analysis prepared by U.S. EPA Region 3,

which purportedly finds that the rulemaking change being considered could result

in more than one-half the streams an one-third of all the wetlands in the mid-Atlantic region losing Federal Clean Water A t protections, according to an article in the

September 5, 2003 Washington Post?

Response to A, B, and C. I have not reviewed the advance notice of proposed rulemaking. If confirmed, I will have an opportunity to review the notice, including the

analysis to which you refer.

Question 33. Thirty States have now commented against this rule, arguing, among

other things, that it is an over-expansive reading of the case law and that it would

create an inordinate regulatory burden on the States. Given these comments, would

you agree to narrow the rule?

Response. If confirmed as EPA Administrator, I will carefully consider the views

of all interested parties, including States, which have a critical role in the protection

of our nation’s waters.

Question 34. How would you act to assure that sources of polluted runoff are appropriately controlled?

Response. If confirmed, I would work with States under their own water protection laws and with other Federal agencies, such as the Department of Agriculture

to assure that sources of polluted runoff are appropriately controlled.

Question 35. Do you believe additional investment in our nation’s drinking water

and wastewater infrastructure is needed? How much? How would you propose to finance it?

Response. I know from first hand experience that our drinking water and wastewater infrastructure is aging and that local communities have significant needs. I

am not yet prepared to articulate policy inclinations’ at this level of detail.

Additional Matters

Question 36. There have been many instances over the past 2 years where EPA

analysis and science have not been made available or congressional scrutiny.

(A) Under your leadership, will you cooperate with both parties in Congress to

provide complete transparency of the EPA decisionmaking process?

Response to A & B. If confirmed, I intend to provide you with EPA’s best professional advice and analysis.

I am personally committed to cooperating with the Congress and its committees

and making progress on the many important and complex environmental issues facVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00133 Fmt 6633 Sfmt 6621 92385 SENENV1 PsN: SENENV1
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ing EPA and the States. I understand and respect Congress’s role in oversight, and

if confirmed, I will cooperate with Congress and its committees to the fullest extent

possible.

Question 37. A point of contention in the debate surrounding multi-pollutant legislation is whether such an approach should regulate emissions of CO2 from power

plants. In the absence of Federal action, many States have now begun to regulate

CO2 emissions themselves. Would you support the inclusion of mandatory reductions in CO2 emissions in multi-pollutant Legislation?

Response. I support the President’s Clear Skies Initiative, and I recognize the

value of market-based approaches, such as the acid rain training program, to reduce

emissions. However, if legislation requiring EPA to establish mandatory reductions

of CO2 is enacted, as Administrator, I would implement the law.

Question 38. EPA is under court ordered deadlines for many rulemakings, including rulemakings under the Clean Air Act related to Maximum Available Control

Technology (MACT) and to the NOx State Implementation Plans. Will you commit

to finalizing all of these rulemakings pursuant to the deadline?

Response. I am not familiar with the current status of EPA’s efforts to meet these

specific court ordered deadlines. If confirmed, I will strive to ensure that EPA addresses these deadlines in a timely manner.

Question 39. One of the important functions that the EPA performs is to review

and comment on Environmental Impact Statements, which are prepared by Federal

agencies in compliance with the National Environmental Policy Act. Last year, a

high ranking official of the Department of the Interior challenged EPA’s comments

regarding an EIS for a large energy exploration project. What assurances can you

provide that EPA professionals will be allowed to provide their expert technical advice on EIS without improper influence from officials who seek a pre-determined

outcome in agency decisions?

Response. I support EPA’s important role in implementing NEPA, and can assure

you that, if confirmed, the advice of EPA’s professionals will guide my decisionmaking.

Question 40. Would you support legislation increasing fuel economy standards for

cars, SUVs, mini-vans, and other light trucks? What goals and timetables would you

set?

Response. Whether or not fuel economy legislation is appropriate is not a topic

with which I am familiar. I do not have a position on this matter at this time.

Question 41. Do you support full implementation of the Food Quality Act to assure

that America’s food supply is safe from dangerous pollutants?

Response. If confirmed, I will review the current implementation efforts under the

Food Quality Protection Act of the EPA. I can assure that I fully support protection

of America’s food supply.

Question 42. Do you believe that chemical plants should be required to conduct

vulnerability assessments and implement security measures following the terrorist

attacks of 9/11? Should such measure be voluntary? Should the measures require

pollutant source reduction measures?

Response?. I have not been briefed on these proposals, and do not have a position

at this time.

Question 43. Do you believe the public has the right to know about the full range

of toxic chemicals in food, drinking water, and consumer products? Do you support

legislation to require manufacturers to disclose the potential health effects of chemicals that they expose to the public?

Response. I am not familiar with the legislation that you reference.

Question 44. Do you support reinstating the Superfund taxes?

Response. First priority is for polluters to pay, using Superfund’s liability system.

Beyond that, I support funding the cleanup of Superfund sites, but I do not have

sufficient information to declare an opinion on the source of funding.

Question 45. Please explain your view of the role in the Federal Government in

environmental protection. Include in particular, the role of the Federal Government

in the enforcement of environmental protection laws.

Response. The Federal Government, through EPA, has the responsibility for implementing nondelegated programs or portions of programs. Where a program has

been delegated to a State, the State is responsible for enforcement, and EPA’s role

is one of oversight of the State program. Establishing national environmental standards is an appropriate role for EPA. However, States and local governments need

the flexibility of ‘‘neighborhood solutions’’ in order to effectively and efficiently implement the standards.

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Question 46. Please explain your view of the role of State and local government

in environmental protection.

Response. Where State and local governments implement environmental laws that

have been delegated by EPA, they have the primary responsibility for implementation, the State has ultimate responsibility for meeting the responsibilities of primacy, and the State and EPA work as co-regulators in meeting the objectives of environmental programs. Where State and local governments implement laws, such as

local planning and zoning or State groundwater protection, the State and local governments have sole regulatory authority. Many times, a project will require various

permits or approvals from all three levels of government. It has been our experience

in Utah that, when local, State, and Federal entities and stakeholders come to the,

table with their individual authorities and capabilities to work together in partnership, and collaboration, they accomplish more environmental progress than they

could individually.

Question 47. The States have been taking a much more active role in the enforcement of environmental law in recent years, but some States the institutional capability (sic) possessed by the Federal Government to support these efforts. How do

you plan to provide support to the States for their environmental enforcement an

compliance tracking? What is your position on cooperating with the States in their

enforcement efforts?

Response. As a Governor, I am committed to a strong State-Federal partnership

to protect the environment. If confirmed, I will seek the input of the States in determining how to best support their efforts and how to appropriately tailor our support

to address their most pressing needs.

Question 48. Many State environmental—protection budgets have been severely

cut in the past several years, with a corresponding effect on their ability to administer delegated or authorized Federal environmental programs. For example, it has

been reported that the State of California may have to cut the budget for. its environmental protection programs by nearly 50 percent over its budget of 2 years ago.

As EPA Administrator, how do you purpose to address this problem to ensure the

continued effectiveness of the ration’s environmental programs?

Response. I know that many States face budget difficulties. If confirmed as EPA

Administrator, I believe EPA will need to work with individual States to identify

creative solutions that address their circumstances. Both EPA and States will need

to work hard to meet the challenge of tight budgets.

Question 49. The Department of Defense has proposed exemptions from the Clean

Air Act, the Superfund Law, and the Resource Conservation and Recovery Act for

military readiness and training activities. Do you support these exemptions? Why?

Response. I am not familiar with the specific details of this legislation. I support

the efforts of the Department of Defense in training our military men and women

to do their job, and I am sensitive to the training needs of the military at training

ranges. There are, however, many operational and cleanup activities ongoing at

Utah military installations that require regulatory oversight in order to assure appropriate protection of public health and the environment.

Question 50. What is your view of the government’s obligation to the public health

of all Americans practically low income families in economically distressed communities, who are exposed to a disproportionate amount of toxic pollutants; and senior

citizens?

Response. I believe all Americans deserve to benefit equally from the Federal Government’s environmental protection efforts.

Question 51. Do you believe local officials have the ability to choose to disregard

Federal environmental law within their jurisdictions? What if a local or State official was not following or enforcing the Clean Water Act? As EPA Administrator,

what would you do in such circumstances?

Response. Quite simply, I believe everyone should follow the law.

Question 52. Do you acknowledge the pressing problem of global warming is being

established by scientific fact? Are you committed to reducing the greenhouse gas

emissions that cause it? Do you view voluntary measures t reduce greenhouse gas

emissions to be sufficient?

Response. A passive approach to address climate change is insufficient. The President has proposed a series of immediate, deliberate actions that I fully support: establishment of a national goal on the reduction of greenhouse gas intensity, substantial increases in research, partnerships within the international and industrial sectors, new agriculture sequestration projects, and focus on new technologies.

Question 53. Some critics assert that while you say you have protected the environment, your actions appear not to be consistent with this claim. One example inVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00135 Fmt 6633 Sfmt 6621 92385 SENENV1 PsN: SENENV1
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2 Leavitt, ‘‘Searching for a Map to Navigate Roads Debate,’’ The Salt Lake Tribune, April 20,

2003

volves the DOI/State of Utah MOU on RS2477 claims. These critics point out that

after the RS2477 MOU was released, you stated: ‘‘If a road is in a national park,

wilderness area or even a wilderness study area, we are not claiming it.’’2 Yet, according to an August 11, 2003 Federal Register notice proposing closure of a road

in the Canyonlands National Park in Utah, the State of Utah and San Juan County

assert that they have a RS2477 right of way for the road, the use of which the National Park Service believes is impairing park values. It appears that this assertion

of a claim for an RS2477 road is inconsistent with your statements that Utah would

not make claims in national parks. Critics fear that as EPA Administrator your actions will continue to be inconsistent with your statements. What assurances can

you provide to such critics that your actions will be faithful to your statements regarding protecting the environment?

Response. There is no inconsistency. The State of Utah does not assert a claim

to the Salt Creek Road in Canyonlands National Park. National Parks are explicitly

excluded from the RS2477 resolution process set forth in the DOI/Utah agreement

of April 2003. I stand by that agreement. The erroneous statement in the Federal

Register reflects facts that predate the agreement by two to 3 years. At that time,

the State intervened in a lawsuit over Salt Creek Road in order to preserve important legal precedents then being challenged.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR BOXER

Question Regarding EPA Rollbacks

Question 1. Governor Leavitt, the EPA’s charge is to protect public health and the

environment. However. during this Administration’s tenure there have been over

300 environmental and public health rollbacks, more than 40 of them originating

from the EPA. I attached a list of all of the EPA rollbacks.

Are you aware of all of these rollbacks?

Please comment on each separate rollback—whether you view it as protecting

public health and the environment and why or why not—prior to this committee’s

voting on your nomination.

Response. The list of actions you have provided covers a wide range of Agency actions taken and statements made over the past 2 years. Many relate to complex

issues on which I have not been fully briefed. I regret that I cannot at this time

assess your characterization of these as ‘‘rollbacks.’’ I reiterate that, if confirmed,

I intend to fully enforce the laws enacted by Congress and to protect the health,

safety and environment of the American people.

TRANSPARENCY AND PUBLIC PARTICIPATION IN DECISION-MAKING

Friday Night Rollbacks

Question 2. Governor Leavitt, I strongly believe that one of the cornerstones of

a democracy is the openness and transparency of our government and its decisionmaking. Do you agree with me on this?

I also believe strongly that part of openness and transparency in a democracy requires that a democratic government inform the public of its policy decisions and

the rational for them? Do you agree with me on this?

I also believe that a key part of informing the public in a democracy is ensuring

that the government provides the public and its representatives with sufficient information to evaluate a decision, or a policy. Do you agree with me on this?

Governor Leavitt, are you aware are you aware that this Administration has a

pattern of issuing environmental and public health rollbacks late in the afternoon

on a Friday or on the eve of a holiday? Are you familiar with the 5 late Friday EPA

rollbacks from 2003?

Are you aware that when this Administration does issue these rollbacks, it is invariably to the media and it is hours or days later before elected representatives

are provided with the details of the rollback? Do you think that such behavior reflects a respect for Democratic principles?

Are you aware that the EPA changed a 25-year old policy prohibiting transfers

of land contaminated with PCBs until it the PCBs were cleaned up? Are you aware

that the EPA did not notify the public about this policy, and that it is known only

because it was leaked to a reporter? Governor Leavitt, is that good democratic governing in your mind?

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Are you aware that this Administration frequently refuses to provide back up documentation for the public health benefits it claims in these rollbacks, such as its

New Source Review decisions? Do you think that such behavior reflects a respect

for Democratic principles?

Governor Leavitt, will you commit to us here and now that you will stop the pattern of announcing rollbacks late on Fridays and on the eve of holidays?

Governor Leavitt, will you commit to us here and now that elected representatives

will be provided with information on regulatory decisions on a time scale that allows

us to meaningfully assess Sand inquire into the meaning and the rationale of the

decision prior to the close of business?

Governor Leavitt, will you commit to providing this information to all Senators

and Representatives at the same time, regardless of their party affiliation?

Response. Like you, I believe that it is important to have an open and transparent

government. I am not familiar with the past practice that you reference, but I look

forward to working with the committee and will make every effort to provide assistance and information in a timely and comprehensive manner.

Answering congressional Requests

Question 3. There is a large backlog of congressional requests from the past 2

years where EPA has failed to be sufficiently responsive. Most notably, EPA has refused to provide information on the environmental impacts of the proposed and finalized changes to the New Source Review program under the Clean Air Act and

information on its Superfund program. The NSR changes made by the Bush Administration in December and August alone put thousands of lives at risk. The Superfund slowdown has also placed untold numbers of people needlessly at risk. Clearly,

this EPA has abandoned its long-standing practice of providing non-partisan, unbiased analysis for Congress, particularly committee chairman and ranking members.

Governor Leavitt, are you aware that this committee was twice on the verge of

subpoenaing EPA for information; once on Superfund issues and once on NSR

issues?

Governor Leavitt, will you pledge to work with Congress and honor our requests

for information?

Will you pledge to present to the pubic and its representatives all of the analysis

underlying EPA’s decisions during your tenure?

Response. It is my desire to have a very straightforward, candid and open relationship with the committee and other Members of Congress, as I indicated during

the hearing and in our private meetings. There have always been tensions between

branches of government, but my record as Governor in working hard to communicate is solid, and it will be my objective to be as responsive to you and to the people of this country as possible.

Superfund

Question 4. Superfund sites are the most hazardous waste sites in our Nation.

The Superfund law was born out of the Love Canal experience, where a school

ground was built on top of an old industrial site contaminated with a variety of toxic

pollutants, including PCBs. A key part of Superfund has long been the Superfund

Trust Fund, a fund into which polluters pay to ensure the cleanup of orphaned sites,

or sites where the responsible parties are refusing to accept responsibility.

Governor Leavitt, the Administration’s fiscal year budget for Superfund shifts

funding for the cleanup of our nations most hazardous waste sites from the polluters

to the taxpayers. President Bush is the first President since passage of the Superfund law in 1980 who has not supported the polluter pays principle.

Governor Leavitt, do you believe that polluters should pay for the pollution they

cause, or do you believe that the innocent taxpayers, who are already bearing the

public health and environmental costs of this pollution, should be the ones to pay

to clean up this pollution?

Response. I support the polluter pays principle, which I understand is the Administration’s position. Parties responsible for the toxic waste at Superfund sites are responsible for cleaning them up. If confirmed, I commit to continuing a strong EPA

Superfund enforcement program.

Question 5. According to a Resources for the Future Report to Congress, EPA has

catalogued more than 43,000 potentially contaminated sited in its Comprehensive

Environmental Response, Compensation, and Liability Information System

(CERCLIS). More than 41,000 of these sites have had a preliminary assessment to

determine whether cleanup is necessary. However, only a small number, approximately 1200 have been placed on the National Priorities List (NPL), which was intended to be the official register of the nation’s most hazardous waste sites. NPL

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sites are the focus of the Superfund program as they are the only sites that EPA

can fund under the Trust Fund.

From 1998—2001, EPA proposed listing an average of 38 sites each year and actually listed an average of 32. In 2002, EPA proposed 9 sites and listed 19, and in

2003, EPA proposed 14 sites, and listed only 8.

Governor Leavitt, what will you do to ensure that the tens of thousands of sites

not on the Superfund NPL are cleaned up?

Response. In my experience, the States cleanup far more contaminated sites than

does the Federal Government under the Superfund program. I support the continued partnership between the Federal Government and State and local governments

in addressing the cleanup of contaminated sites.

Question 6. Governor Leavitt, the Administration has repeatedly asserted that it

has ‘‘long-standing commitment to clean-up contaminated sites.’’ However, the Administration’s 2004 budget proposes to flat line cleanups at 40 per year, down significantly from its estimate of 75 for 2001, and less than half the average of 87

cleanups completed per year in the last 2 years of the Clinton Administration.

Governor Leavitt, do you think that cutting in half the number of clean-ups completed translates into a commitment to cleaning up contaminated sites?

Response. I do not have sufficient information to evaluate whether the number

of cleanups alone demonstrates the Administration’s commitment to clean up sites.

If confirmed, I would assure that the Agency makes the best use of the funds available and would target funds based on risk to human health and the environment.

Question 7. Governor Leavitt, the Administration frequently asserts that site

cleanups underway are more complex sites than previous site cleanups. However,

EPA has been cleaning up extremely complex sites for decades and I am unaware.

of any evidence indicating that the complexity of sites has changed radically over

the last 2 years. After the EPW hearing on the President’s budget request for 2004,

I asked the following questions, which have yet to be fully answered by the Bush

Administration:

• Please provide a detailed explanation of what constitutes a more complex site.

• In addition, please summarize the information that your Agency has received

that indicates such a radical change in site characteristics over the last 2 years and

provide that documentation to this committee.

Governor Leavitt, please provide me with a full and complete response to these

questions, along with data to back up your response.

Response. I am not familiar with the specific findings of the Agency on the complexity of site clean-ups, nor am I privy to the information EPA has received over

the last 2 years on this matter. If confirmed, however, I commit to looking into your

data request.

Question 8. Governor Leavitt, in April 2002, Marianne Horinko, Assistant Administrator for the Office of Solid Waste and Emergency Response, testified before this

committee under oath. During that testimony she indicated that if the Fund were

not ‘‘robust’’, the Administration would revisit reinstating the polluter fees. Her

exact quote was:

‘‘I’m certainly not ruling out the tax. The Administration this fiscal year felt that

in the 2003 budget we still had a relatively robust funding source in the remaining

trust funds, that we did not have to propose the Superfund tax, but we will look

at that again in 2004 and see if we need to revisit that position.’’

The Trust Fund will be broke as of October 1, 2003, with the full costs of cleanups

shifting to taxpayers. As you know, this was exactly reversed in 1995, when taxpayers paid 18 percent of the costs and polluters 82 percent.

Governor Leavitt, as the Trust Fund clearly is no longer ‘‘robust’’, do you believe

that the Administration should reinstate the polluter fees? If not, please explain

why not.

Response. I support the polluter pays principle, which I understand is the Administration’s position.

Parties responsible for the toxic waste at Superfund sites are responsible for

cleaning them up. If confirmed, I commit to continuing a strong EPA Superfund enforcement program.

Question 9. EPA’s data indicates that one in four people in America, including ten

million children, live within four miles of a Superfund site. Yet this Administration

has broken with the Reagan, Bush and Clinton Administrations by opposing the

Superfund polluter fees that pay for cleaning up abandoned sites. At the same time,

the pace of cleanups has plummeted during this Administration, from an average

of 87 annually during the last Clinton Administration, to only 40 over the last couple of years. What will you do to increase the pace of Superfund cleanups?

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Response. If confirmed, I am committed to the effective and efficient use of funding for sites listed on the National Priority List (NPL) to protect human health and

the environment. I do not at this time have sufficient information to articulate a

policy for Superfund Cleanups at this level of detail.

Question 10. A recent GAO report confirmed that the Superfund trust fund, which once contained over $3.6 billion, will be entirely exhausted in just a few weeks. The

full costs of cleaning up abandoned sites and for program administration—roughly $1.5 billion—will now need to be borne by the general treasury. Do you agree with

the Administration that polluters should not pay the cost of cleaning up abandoned

sites, and that instead such costs should be foisted on the average taxpayer?

Response. As I have stated above, I am committed to the effective and efficient

use of funds for sites listed on the NPL to protect human health and the environment. My first priority is for polluters to pay, using Superfund’s liability system.

I support the President’s proposal to increase funding for Superfund, but I do not

at this time have a position on any pending or proposed legislation concerning the

source of funds.

Governor Leavitt’s Past Record

Question 11. On April 9, 2003, you developed a ‘‘Memorandum of Understanding’’ (MOU) with the Department of the Interior affecting rights of ways across Federal

lands. This MOU sets up a process for counties to make rights of way claims across

Federal lands in Utah, including lands proposed for wilderness designation.

On April 11, 2003, you reached a settlement with the Department of Interior over

the management of public lands in the State of Utah. This settlement stemmed from

a lawsuit where the State of Utah sued the Bureau of Land Management, challenging former Interior Secretary Bruce Babbitt’s authority to have additional acres

considered for wilderness designation. In exchange for dropping the lawsuit, the Interior Department overturned temporary wilderness protection for nearly 6 million

acres in Utah.

In both instances, the public was unable to provide input, even though these decisions had significant impacts on their public lands. This lack of public participation

is in direct conflict with your stated support for collaboration in environmental management.

Can you explain why the public was left out of these decisions affecting their public lands?

Response. The public was not left out of these decisions. In the case of the RS2477

roads, the MOU is an agreement to open a collaborative public administrative process in which every American can participate. The MOU itself does not decide the

ownership of a single road. The April 11 agreement was the settlement of 7 years

of litigation. During that period, any stakeholder could have intervened, but chose

not to. The wilderness lawsuit occurred because collaboration broke down. I have

engaged in numerous attempts to resolve wilderness disputes, including a collaboration where former Interior Secretary Babbitt and I were able to reach agreement,

but the extremes on both sides of the discussion killed the proposal.

Question 12. Can you assure the committee that you will have transparency and

public participation in decisionmaking?

Response. I commit to public participation and transparency in accordance with

Federal laws in the decisionmaking process.

Question 13. Can you envision similar circumstances as EPA Administrator where

you will feel it necessary to cut out the public and key stakeholders from decisions

affecting environmental laws and their enforcement?

Response. My record as Governor includes many notable examples of successful

problem solving on a large scale issues with the collaboration of the public and

stakeholders; Envisions Utah, Partnership For Quality Growth, Western Regional

Air Partnership, and the Grand Canyon Visibility Transport Commission are all examples.

Question 14. According to an article in the ‘‘High Country News’’ (May 27, 1996)

and statements made in ‘‘Science Under Siege’’ by Todd Wilkinson, when scientists

in the Utah Division of Wildlife Resources offered information or positions that

sought to encourage protection for endangered species, they were reassigned or pressured to leave.

Will EPA employees be permitted to provide scientific information—including information that challenges or questions existing policies—without fear of losing their

jobs or other retaliatory actions?

Response. Yes.

Question 15. According to an article in ‘‘High Country News’’ (May 27, 1996), outbreaks across the West in wild trout streams of whirling disease—a parasitic infecVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00139 Fmt 6633 Sfmt 6621 92385 SENENV1 PsN: SENENV1
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tion of trout and salmon that can deform the skeletal systems of wild fish species—

was traced to a hatchery owned in part by you, Governor Leavitt, and two of your

brothers. Since the State of Utah prohibited the release of hatchery-raised fish unless they are disease-free, your family was charged with 30 violations of State aquaculture laws. The article states that the fisheries chief who assisted in the case,

Bruce Schmidt, was fired, along with 18 other mid-and upper-level management

jobs in his department.

As Administrator of the EPA, will you fire those responsible for enforcing environmental regulations, if the regulated party is a family member or a colleague?

Response. This question and the article that is referenced are based on inaccurate

information. As Governor, I have scrupulously avoided making statements or taking

actions that could influence State regulations of the aquaculture industry. Personnel

changes at the State Division of Wildlife Resources were unrelated to whirling disease and based on recommendations from a national consultant. They occurred as

part of a statewide restructuring that impacted every State agency as I began my

public service. The former Chief of Fisheries, Bruce Schmidt, made it clear in a public forum letter published in the Salt Lake Tribune that, ‘‘throughout the attempt

to clean up whirling disease, the Governor had no direct involvement in the decisions made regarding the investigation or the negotiations on actions required to

eliminate and/or contain the disease.’’ (Salt Lake Tribune, 9/13, 2003.)

September 11 and White House Interference in EPA Decisionmaking

Question 16. There have been a number of incidents regarding inappropriate

White House interference in EPA decisionmaking. The two most notable insights of

White House interference come from a leaked memo regarding the June 2003 ‘‘Draft

Report on the Environment,’’ where the Administration pressured the EPA to remove all references to climate change, and a recent EPA Inspector General report

that concluded that White House staff directed EPA to alter its press releases about

environmental safety in New York City following the September 11 tragedy.

In contrast, Russell Train, former EPA Administrator, wrote the New York Times

and said: ‘‘Having served as EPA Administrator under both Presidents Nixon and

Ford, I can state categorically that there never was such White House intrusion into

the business of the EPA during my tenure. The EPA was established as an independent agency in the executive branch, and so it should remain. There appears

today to be a steady erosion in its independent status.’’

Governor Leavitt, do you agree with Mr. Train’s view of the EPA? Will you stand

up to the White House if they continue to interfere with EPA’s responsibilities to

provide unbiased scientific analysis, fully disclose environmental information, and

enforce the nation’s environmental laws?

Response. I will commit to you that the President will always know where I stand

on issues. When presenting the President with an issue I will provide him with the

facts as I understand them, the best available science and the opinions of EPA’s

staff.

PCB’s Land Transfer

Question 17. Governor Leavitt, do you believe that government has an obligation

to inform the public and its representatives when it changes its positions on issues

critical to public health and the environment?

Response. I strongly believe it is EPA’s duty to provide critical health information

to the public that is reliable and accurate as soon as that information is gathered

and validated.

Question 18. Governor Leavitt, do you believe that EPA should inform the public

and its representatives of a decision to dramatically ease land reuse of parcels contaminated with polychlorinated biphenyls (PCBs), one of the most dangerous and

persistent chemicals known to man, and a decision which overturns a 25-year understanding of statutory language, or should EPA make such a decision with no

public participation, no announcement, and no data?

Response. I strongly believe it is EPA’s duty to provide critical health information

to the public that is reliable and accurate as soon as that information is gathered

and validated.

Perchlorate

Question 19. Governor Leavitt, so you believe that it is EPA’s responsibility to regulate contaminants in drinking water that threaten public health and the environment?

Response. I believe it is EPA’s responsibility to take appropriate action to address

threats to public health and the environment. That responsibility must be carried

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out based on sound science and a consideration of all the relevant factors at issue

within established statutory frameworks.

Question 20. Governor Leavitt, would you find it acceptable to delay issuing such

a standard after decades, and hundreds, of studies confirming the dangerousness of

a chemical?

Response. I am not familiar with the specific circumstances to which you allude.

Every American deserves to have clean drinking water and, if confirmed, I will work

to address drinking water issues as expeditiously as appropriate under the circumstances.

Question 21. Based on your responses above, will you commit to immediately finalizing a safe drinking water standard for perchlorate that is protective of the most

vulnerable populations, specifically newborns, children and pregnant mothers?

Response. I will commit to working with the dedicated professionals at EPA to

take appropriate action.

Question 22. As you may know, the State of California has what could be described as one of the most serious groundwater pollution problems caused by the

rocket-fuel chemical perchlorate. The perchlorate pollution, which is impacting tens

of thousands of my constituents in the San Bernardino County area, has forced several water providers to shut down or restrict use of approximately 20 groundwater

production wells. More recently, several water emergencies have been declared in

the area because of the pollution. The perchlorate pollution is located in an area formerly occupied by, among others, a Department of Defense weapons storage facility.

The perchlorate contamination is causing severe water supply problems and is having serious negative consequences on economic growth and development in San

Bernardino County.

A delegation of representatives from some of the impacted water providers will

be coming to Washington on October 8, 2003, to meet with DOD Assistant Secretary

John Woodley to develop solutions to this water crisis.

Governor Leavitt, I believe it is important for the new EPA Administrator to play

a key role in developing a solution to the emerging perchlorate crisis. If you are confirmed, would you be willing to meet with representatives of the affected water providers on October 8, 2003, to assist in the review of the conditions associated with

the perchlorate pollution and to develop solutions to this water crisis?

Response. I will commit to working with the dedicated professionals at EPA to

take appropriate action.

Mercury

Question 23. Mercury is a potent neurotoxin that has made its way into the food

supply, contaminating fish and posing a risk to people and wildlife that consume

fish. Most at risk are children and the unborn. According to the Centers for Disease

Control and Prevention (CDC), one in 12 women of childbearing age (8 percent) has

blood mercury levels exceeding the EPA safe level for protection of the fetus. This

translates into approximately 320,000 babies born annually in the United States atrisk for neuro-developmental delays. 44 States nationwide have issued advisories

warning people to limit consumption of fish caught from inland lakes, streams and

coastal waters.

EPA is under a court order to enforce the Clean Air Act and issue a rule by December 31 of this year to reduce toxic mercury emissions from coal-fired power

plants, which are the largest unregulated source in the Nation. Because mercury is

a potent toxin that, like lead, causes developmental delays in children at even tiny

quantities, the Clean Air Act requires EPA to set standards based on the maximum

amount that can be technologically reduced. The analysis was promised to be delivered to an advisory committee made up of industry, conservation groups, and others,

but the meeting to review the data was canceled and they still haven’t received it.

According to a New York Times report, EPA canceled the technical analysis needed to produce a credible mercury rule after EPA’s top air official consulted with the

White House on how to proceed.

Governor Leavitt, will you ensure that the Agency moves with all necessary speed

to do this necessary analysis in time to produce the rule this year? Will you ensure

that EPA shares this analysis with its advisory group in a timely manner to solicit

their input?

Response. I am not familiar with all of the issues associated with this question,

and, if confirmed, I would welcome the opportunity to learn more about the issue.

Question 23. As you know, the EPA has been aggressively promoting the Administration’s ‘‘Clear Skies’’ legislation in Congress. Clear Skies would eliminate the mercury rule that EPA must propose by the end of the year and replace it with a standard that was picked by the White House. The standard that the White House picked

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is far weaker than what EPA had recommended to the White House, according to

press reports. No analysis was provided to justify using the weaker mercury numbers, and pointed out about, EPA is now refusing to complete its analysis. The

major polluters in the electric utility industry are likely hoping that EPA will ‘‘cook

the books’’ to justify a mercury rule that is as weak as the President’s ‘‘Clear Skies’’

proposal.

The Clear Skies proposal is far weaker than faithful enforcement of the current

Clean Air Act requirements. Environmental groups have obtained a secret briefing

that EPA staff provided to electric utilities during this Administration. The briefing

demonstrates that the Clear Skies proposal could allow as much as five times more

mercury pollution than the current Clean Air Act in 2010.

Governor Leavitt, how do you intend to assure Congress and the public that the

mercury standard in the Clear Skies proposal is at least what the Clean Air Act

requires today?

Response. I am not familiar with the differing mercury standards. However, I am

committed to implement the Clean Air Act. I expect to be briefed on the issue, if

confirmed.

Enforcement

Question 24. According to an investigative report by the ‘‘Sacramento Bee’’, several EPA enforcement officials say they have been pressured by management to pad

their enforcement statistics and make it look like they are pursuing more violations

of environmental laws than they really are.

The statements by EPA officials and the information they provide appear to suggest an orchestrated effort to disguise the fact that EPA is pursuing fewer investigations than in the past. For instance, the ‘‘Bee’’ reported that EPA has lumped 190

counterterrorism-related investigations into its annual performance report to Congress that year, identifying them as EPA-initiated ‘‘criminal investigations.’’ One

senior EPA agent said: ‘‘I called the FBI and said, ‘‘If you need us, give us a call.’’

That warranted a (criminal) case number. There was no investigation.’’

The ‘‘Bee’’ also reported that EPA agents said headquarters pressured them to

open criminal investigations on weak leads and on pollution violations they knew

had little or no chance of prosecution. ‘‘We were encouraged to do that—find anything that’s got any breath to it and put a case number on it,’’ one senior agent said.

‘‘We were approaching the end of a fiscal year. They wanted to make it look like

a good year.’’

Governor Leavitt, will you commit to investigate this matter and ensure us that

EPA will be completely forthcoming and transparent when reporting to Congress

and the public on its environmental reporting?

Response. I am not familiar with the details of this issue, but if confirmed I commit to looking into it.

Clean Water

Question 25. Last year marked the 30th anniversary of the passage of the Clean

Water Act. This law is one of the nation’s great success stories. When the bipartisan

legislation was passed, the Cuyahoga River was so polluted it burst into flames and

the Great Lakes were nearly ‘‘dead.’’ This sad state of affairs was due to reliance

on weaker laws that failed to provide a strong Federal backstop providing protection

for our waters. Over the past 30 years, the CWA has helped to clean up our waterways, ensure habitat for millions of bird .and other wildlife, and restore some of our

most cherished waterways. While much progress has been made, about 40 percent

of our waters are still not fit for swimming, fishing and other basic uses. There is

still clearly much work to be done. And the States cannot do it alone.

Governor Leavitt, do you support a strong Federal role in enforcing the Clean

Water Act so that all of our waters are fishable, swimmable and drinkable?

Response. Yes, I support a strong Federal role in enforcing the Clean Water Act.

Question 26. This year, the EPA announced that it would consider a proposed rule

that would limit the scope of the Clean Water Act. By the EPA’s own estimates

some 20 million wetlands across the country—an area as large as Maine—have already lost Clean Water Act protection under the guidelines they issued to field staff

in January. Countless numbers of wetlands, streams, ponds and other water bodies

could be severely impacted if this rulemaking goes forward. In fact, during an initial

public comment period 39 out of 42 State agencies that filed comments made clear

they oppose proceeding with such a rulemaking.

Governor Leavitt, given your advocacy for giving the States more environmental

authority where possible, how would you handle a situation such as this where a

strong majority has stated it does not want to lose existing Federal protections?

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Response. Over the last 11 years, I have had many opportunities to work on

issues related to wetlands. Wetlands are a very important part of a natural heritage

that we must protect. I have not been fully briefed on the issue, but if confirmed,

1 commit to you to consider the input from States and others in determining how

to proceed on this issue.

Question 27. One of EPA principal responsibilities is implementing laws passed

by Congress as interpreted by the courts. Several recent decisions in the Federal

Courts, including two strongly worded decisions in the conservative 4th Circuit,

have overwhelmingly affirmed that the Clean Water Act applies broadly to protect

our nation’s wetlands, streams and other waters. These recent Court rulings plainly

demonstrate that no such rollback of Federal regulations is required under the law.

Governor Leavitt, will you, as Administrator, ensure that current regulations are

kept in place and that the Clean Water Act is fully enforced under current regulations?

Response. If confirmed, I intend to fully comply with and enforce the Clean Water

Act.

STATES’ RIGHTS

Air Quality

Question 28. Governor Leavitt, are you a supporter of States’ rights?

Governor Leavitt, under the Clean Air Act, California has been granted the right

to regulate air pollution in many areas, as long as its regulations are at least as

stringent as the Federal Governments’. The Clean Air Act also allows other States

to opt into California’s regulations. As EPA Administrator, would you strongly support this aspect of the Clean Air Act?

Governor Leavitt, would you as EPA Administrator support a rider that preempted States’ rights under the Clean Air Act to more stringently regulate air pollution?

Response. As a Governor for 11 years, I respect the role of States. I recognize that,

as Administrator of the EPA, my perspective would be somewhat different in that

my new role would be a national one. I believe that we need National standards,

but understand very well that you have to have room for ‘‘neighborhood’’ solutions.

California’s Oxygenate Waiver

Question 28. Governor Leavitt, would you as EPA Administrator support or oppose a State’s efforts to regulate air quality as long as it complied with the Clean

Air Standards?

Response. If confirmed as Administrator, I would review the legal authority for

a State to regulate air quality under the Clean Air Act, and work with the State

to meet their goals within the parameters of the law.

Question 29. Governor Leavitt, California has applied for a waiver from the oxygenate standard as allowed by the Clean Air Act. Under the Clean Air Act, a State

may be granted a waiver as long as it can demonstrate that air quality will be

maintained. Would you support of oppose a waiver in this instance?

Response. I am not familiar with this particular issue but look forward to learning

more about it, if I am confirmed as EPA Administrator.

Safe Drinking Water

Question 30. Governor Leavitt, under the Safe Drinking Water Act, States have

the right to regulate drinking water standards more stringently than does the Federal Government. Do you support this principle?

Response: Yes.

Question 31. Governor Leavitt, would you as EPA Administrator support or oppose another agency’s attempts to circumvent State safe drinking water standards?

Response. If confirmed, I intend to fully implement SDWA,

Right-to-Know

Question 31. Do you support the public’s right to know through the EPA’s Toxic

Release Inventory Program (TRI) about toxic chemicals released into their air and

water?

Response. Yes. The public needs information about the environment in their area.

This type of information allows people to make informed decisions that affect their

individual lives and communities. The Toxic Release Inventory, considered in context, can provide useful information for individuals and community planning.

Question 32. Unlike any other industry required to report under the TRI, the

hardrock mining industry has been suing the Environmental Protection Agency in

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order to be exempted from these reporting requirements. The EPA has, to date, been

defending against the hardrock industry’s attempts to weaken the public’s right to

know. You, however, sponsored a Western Governor’s Association policy resolution

siding with the industry to push for the weakening of the TRI program.

As EPA Administrator, would you support giving the hardrock mining industry

a special break or continuing to ensure the public’s right-to-know about toxics releases?

Response. As I stated at my confirmation hearing, you are referring to the TRI

resolution that is regularly offered. That resolution, put forward at the Western

Governor’s Association, makes a very simple point: the public does have a right-toknow, but we should also make certain there is a context given to TRI reports.

Question 33. Administrator Whitman called the Toxic Release Inventory ‘‘a powerful tool to help citizens access local environmental conditions and to help them make

decisions about protecting the local environment.’’ As Administrator, will you fully

support the public’s right to know about pollution in their communities and oppose

any rollback of current reporting requirements?

Response. The public needs information about the environment in their area. This

information allows people to make informed decisions that affect their individual

lives and communities. The TRI, considered in context, can provide useful information for individuals and community planning.

Global Warming

Question 34. You have expressed your support for the National Governors Association (NGA) policies on global warming. The NGA opposes the Kyoto Protocol and

favors voluntary measures to reduce carbon dioxide and other greenhouse gas emissions.

The current Administration has failed to address carbon dioxide emissions that

contribute to global warming. In June 2003, the EPA and the White House decided

to delete information on global warming in its ‘‘State of the Environment’’ report.

In July 2003, the Bush Administration released its 10-year Climate Change Science

Program. Rather than direct funds on ways to address global warming, this plan

calls for more studies and no action on this important issue. Most recently, the EPA

announced that it lacks authority under the Clean Air Act to regulate carbon dioxide and other greenhouse gas emissions from automobiles. Therefore, the EPA will

not force automakers to reduce greenhouse gas emissions from automobiles.

Do you believe carbon dioxide should be regulated?

As EPA Administrator, what actions would you take to address the problem of

carbon dioxide emissions and global warming?

Response. A passive approach to address climate change is insufficient. The President has proposed a series of immediate, deliberate actions that I fully support: establishment of a national goal on the reduction of greenhouse gas intensity, substantial increases in research, partnerships within the international and industrial sectors, new agriculture sequestration projects, and focus on new technologies.

Standards in Decision-Making

Question 35. Governor Leavitt, this EPA has frequently relied on anecdotes when

rolling back environmental regulations, such as New Source Review and PCB-land

transfers, but requires years, if not decades, of rigorous scientific study when considering whether or not to regulate to protect public health and the environment, such

as a safe drinking water standard for perchlorate and the regulation of carbon dioxide emissions.

Do you believe that regulations rolling back public health and regulations protective of public health should be subject to the same rigorous scientific standards?

What do you believe these standards should be? If you do not believe that the same

standards should be applied in both types of cases, please explain why not.

Response. The quality of science that underlies EPA’s regulations is vital to the

credibility of EPA’s decisions and ultimately the Agency’s effectiveness in protecting

human health and the environment. I am committed to ensuring that sound science

plays a prominent role in all EPA regulatory decisions.

PBDEs

Question 36. Recently, studies show elevated levels of PBDEs in breast milk.

Other studies have shown that human exposure to PBDEs comes mainly from the

ingestion of dietary products such as fish and cow’s milk or through air borne contaminants. What measures should be taken to prevent ingestion and lower PBDE

levels found in the human body?

Response. I fully support EPA’s mission to protect human health and the environment. I am not familiar with the specific scientific findings or studies on PBDEs.

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If confirmed, I would need to have more information before forming an opinion on

this matter.

Question 37. PBDEs are used in only one-fourth of flame-retardants. There are

over 200-plus different commercial flame retardant chemicals in use today. According to the Environment California Research and Policy Center, the best alternatives

have no acute or chronic effects on health or the environment, have a minimum release during production and are able to suppress the formation of smoke and hazardous fumes during fire. Since PBDEs do not meet all of these and other necessary

standards and have been shown to be harmful, should the EPA recommend that

manufacturers cease the use of PBDEs?

Response. I would like to be more fully briefed on the effects of PBDEs and their

alternatives before expressing an opinion. I do believe that EPA should continue to

use high quality science to guide its decisions.

Question 38. PBDEs have repeatedly been said to cause neuro-developmental

damage, especially in fetuses and small children. How much information does the

EPA need before the Agency will take steps to completely eliminate the use of

PBDEs?

Response. I fully support EPA’s mission to protect human health and the environment, including the initiative to protect children’s health. I firmly believe that public policy decisions should be based on the best available science and data. If confirmed, I would like to understand in greater depth and detail the data, issues, and

perspectives associated with this complex subject before forming an opinion on this

matter.

Santa Susana Field Laboratory Cleanup

Question 39. There is a contaminated nuclear facility in Southern California called

the Santa Susana Field Laboratory (SSFL). For a decade, at the bipartisan urging

of the relevant legislators, EPA has been deeply involved in overseeing the cleanup

of the site. If confirmed, will you continue to maintain the same, or greater, level

of EPA commitment, resources, and activity regarding the cleanup of SSFL?

Response. I am not familiar with the Santa Susana Field Laboratory. However,

if confirmed, I am committed to EPA’s efforts to protect human health and the environment through the cleanup of contaminated sites.

Question 40. A DOE-EPA Joint Policy in 1995 requires all DOE sites, irrespective

of whether they are on the NPL, to be cleaned up consistent with EPA’s CERCLA

guidance. EPA repeatedly committed to me, in the words of the previous Administrator, that EPA would ‘‘ensure that the cleanup is consistent with Superfund cleanup standards.’’ Will you, if confirmed, maintain that commitment?

Response. I am unfamiliar with the policy document referenced in your question.

However, If confirmed, I am committed to EPA’s efforts to work with other Federal

and State agencies to clean up contaminated sites.

Question 41. EPA also previously committed that it would conduct an independent

radiation survey at the site, to its CERCLA cleanup levels. Will you, if confirmed,

maintain that commitment? And, if DOE balks at funding the survey, will you request sufficient funds in EPA’s budget?

Response. I am unfamiliar with the radiation survey referenced in your question.

If confirmed, I commit to learning more about this issue.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR WYDEN

Question 1. There are 15 communities in Region 10 that have combined sewers.

Knowing that all the communities in Oregon have enforceable orders with the State

to control combined sewer overflows (CSOs), why was the city of Portland targeted

for investigation?

Question 2. The U.S. Environmental Protection Agency (EPA) received copies of

the agreements entered into between the City and the State of Oregon back in 1991

and again when the agreement was amended in 1994. EPA began looking into Portland’s efforts in February 2001, 10 years after the City had first signed an enforceable order with the Oregon Department of Environmental Quality. Why did the

Agency wait for 10 years to ask questions about the city of Portland’s program?

Question 3. The city of Portland is more than halfway toward meeting its goal of

a 96 percent reduction in combined sewer overflow volumes. This is a more stringent reduction level than many communities around the country are committed to

achieve, and more stringent than EPA guidance. Why would EPA spend scarce reVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00145 Fmt 6633 Sfmt 6621 92385 SENENV1 PsN: SENENV1
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sources to pursue a community already on schedule to go beyond what EPA has approved elsewhere?

Question 4. The city of Portland has spent over $100,000 in expenses and staff

time to respond to your requests for information, visits, tours, and meetings. How

much money has EPA spent on staff time, travel and the use of consultants to undertake this two and a half year effort?

Question 5. The July 7, 2003 letter from Department of Justice claims EPA finds

the City to have violated the Clean Water Act because they have had hundreds of

CSO events during the past 5 years. How is it possible given that the order signed

by the State and the City expressly contemplates CSOs will continue until the

abatement program is completed in 2011? Does this mean that the Federal Government does not recognize the CSO abatement orders issued by the State of Oregon?

Question 6. The July 7, 2003 letter discusses the need for the Federal Government

to collect penalties from the City. The Portland community has already spent over

$500,000,000 of local ratepayer money since 1991 to attack the CSO problem. They

will undoubtedly spend at least that much during the next 8 years to finish the job

they have already begun. What purpose would a financial penalty serve? What is

the economic benefit the City has enjoyed during the past 10 years when sewer

rates have tripled to address the very problems all of us are interested in solving?

Response 1–6. As we discussed in our earlier meeting, I am not familiar with the

facts of this case. Until confirmed, I am not privy to the details of ongoing enforcement actions or of the government’s position, but look forward to being briefed on

the subject.

Question 7. In order to evaluate EPA’s actions in connection with the city of Portland’s Combined Sewer Overflow program, I am requesting the following documents

concerning this matter:

• All correspondence, including electronic mail, regarding the Environmental

Protection Agency’s and your consultants’ 2001–2003 inquiry into the city of Portland’s Bureau of Environmental Services operation of its wastewater treatment and

collection system; compliance with the Combined Sewer Overflow and Separate

Sewer Overflow provisions of the City’s National Pollution Discharge Elimination

System (NPDES) permits (Columbia Boulevard and Tryon Creek Wastewater Treatment Plants); and compliance with Department of Environmental Quality (DEQ)

Amended Stipulation and Final Order, No. WQ-NWR–91–75, dated August 11, 1994

regarding the city of Portland’s combined sewer system.

• All notes, summaries, communications, meeting schedules, requests for information and documents regarding Portland’s compliance with requirements for combined sewer overflow control.

• All correspondence, guidance, initiatives, memoranda, enforcement initiatives

or other materials related to EPA’s request of the city of Portland for information

regarding operation of wastewater treatment and collection systems and compliance

with the Combined Sewer Overflow and Separate Sewer Overflow provisions of

NPDES permits, within the past 3 years.

• All correspondence, including electronic mail, guidance, initiative, memoranda,

and documents or other materials relating to national, regional or local policies regarding the administration of the Underground Injection Control (UIC) program

within the State of Oregon within the past 3 years.

Response. Because this is an ongoing enforcement action, I do not have access to

any documents.

Question 8. Recently, when Oregon Governor Ted Kulongoski spoke with the

President, he made funding the cleanup of the Portland Harbor Superfund site a

top priority. If confirmed as EPA Administrator, will you support additional funding

for Superfund cleanup projects, including the cleanup of one of the core pieces of

transportation infrastructure in the Pacific Northwest—the Portland Harbor? Specifically, will you support the full funding of the McCormick & Baxter cleanup currently estimated at $10 million and for cleanup of the larger Portland Harbor site

estimated at $200 million plus?

Response. I am aware of but not fully familiar with the Portland Harbor Superfund site. If confirmed, I am committed to the effective and efficient use of the

Superfund.

Question 9. In your written testimony to the committee, you described a successful

collaboration to clean up groundwater contamination from the Kennecott Copper

Mine that threatened the water supply of Utah’s population that was done outside

the Superfund program. Aside from the dollars Oregon is seeking to aid in cleanup,

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ested parties to move forward to clean up the Portland Harbor site as quickly as

possible, including alternatives outside the Superfund program?

Response. As a Governor, I am committed to a strong State-Federal partnership

to protect the environment and public health. If confirmed, I will seek the input of

the States in determining how best to support their efforts and how to tailor our

support to address their most pressing needs. With regard to Portland specifically,

I am not privy to the details and therefore cannot comment at that level of detail.

RESPONSES BY GOVERNOR MICHAEL O. LEAVITT TO PRE-HEARING QUESTIONS FROM

SENATOR WYDEN

Question 1. There are 15 communities in Region 10 that have combined sewers.

Knowing that all the communities in Oregon have enforceable orders with the State

to control combined sewer overflows (CSOs), why was the city of Poland targeted

for investigation?

Question 2. The U.S. Environmental Protection Agency (EPA) received copies of

the agreements entered into between the City and the State of Oregon back in 1991

and again when the agreement was amended in 1994. Your agency began looking

into Portland’s efforts in February 2001, 10 years after the City had first signed enforceable order with the Oregon Department of Environmental Quality. Why did the

agency wait for 10 years to ask questions about the city of Portland’s program?

Question 3. The city of Portland is more than halfway toward meeting its goal of

a 96 percent reduction in combined sewer overflow volumes. This is a more stringent reduction level than many communities around the country are committed to

achieve, and more stringent than EPA guidance. Why would EPA spend scarce resources to pursue a community already on schedule to go beyond what EPA has approved elsewhere?

Question 4. The city of Portland has spent over $100,000 in expenses and staff

time to respond to your requests for information, visits, tours, and meetings. How

much money has EPA spent on staff time, travel and the use of consultants to undertake this two-and-a-half-year effort?

Question 5. The July 7, 2003 letter from Department of Justice claims EPA finds

the City to have violated the Clean Water Act because they have had hundreds of

CSO events during the past 5 years. How is it possible given that the order signed

by the State and the City expressly contemplates CSOs will continue until the

abatement program is completed in 2011. Does this mean that the Federal Government will recognize the CSO abatement orders issued by the State of Oregon?

Question 6. The July 7, 2003 letter discusses the need for the Federal Government

to collect penalties from the City. The Portland community has already spent over

$500,000,000 of local ratepayer money since 1991 to attack the CSO problem. They

will undoubtedly spend at least that much during the next 8 years to finish the job

they have already begun. What purpose would a financial penalty serve? What is

the economic benefit the City has enjoyed during the last 10 years when sewer rates

have tripled to address the very problems all of us are interested in solving?

Response to Questions 1–6. I am not familiar with the facts of that case. Until

confirmed, I am not privy to the details of ongoing enforcement actions or of the

government’s position.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR CARPER

Motiva Oil Refinery and Consent Decree

Question 1. The nation’s largest single source of airborne sulfur dioxide emissions

is located in Delaware. The Motiva refinery, in Delaware City, has been a source

of problems for decades and a major contributor to the air quality problems in Delaware and New Jersey. In 2001, the EPA, DNREC, and Motiva finally entered into

a consent decree to reduce sulfur emissions by installing modern pollution controls

on the two major sources of pollutions—the coker and the cracker by the end of 2003

and 2004 respectively. Unfortunately those deadlines will not be met because earlier

this year discussions about what type of emissions control should be used led to

delays and eventually a revised consent decree proposal. I asked Governor Whitman, who was Administrator at the time, to become personally involved and not

allow the elements of the original consent decree to be weakened in any way. She

agreed to that and I think was working in good faith with us in Delaware until her

departure this summer.

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Are you familiar with this consent decree?

Response. I became aware of this situation through our discussions. However, I

am not familiar with the details of this consent decree. If confirmed, I look forward

to the opportunity to learn about this matter and others undertaken by EPA to ensure that the health and environment of our citizens are protected.

Question 2. Will you commit to work with me, with Senator Biden, and with the

people of Delaware to do all that is necessary to reduce emissions at the refinery

as soon as possible?

Response. If confirmed, I commit to working with you, Senator Biden and the

community to address your concerns. I look forward to learning more about this and

other environmental issues in Delaware.

Question 3. Will you personally review the proposed amendment to the consent

decree to determine the delays and changes it includes are appropriate and if they

are not, will you block it from taking effect?

Response. If confirmed as EPA Administrator, I would welcome the opportunity

to learn more about the consent decree to understand whether the changes it includes are appropriate.

CO2 and Global Warming

Question 4. The committee is currently considering several legislative proposals

that would place, for the first time, mandatory controls on the emissions of CO2 and

some other greenhouse gases. Senator Jeffords and I have both offered proposals addressing electric power plants, and Senator Lieberman has an even broader bill addressing CO2 emissions economy-wide. The President, during his campaign, even

supported controlling CO2. However since he took office his position has changed,

although the facts have not. I have several questions on this topic:

1. What is your position on global warming?

2. Do you believe the science to date indicates global warming is happening?.

3. Do you believe emissions of greenhouse gases can continue uncontrolled indefinitely without any negative impact?

Response. A passive approach to address climate change is insufficient. The President has proposed a series of immediate, deliberate actions that I fully support: establishment of a national goal on the reduction of greenhouse gas intensity, substantial increases in research, partnerships within the international and industrial sectors, new agriculture sequestration projects, and focus on new technologies.

Draft Report on the Environment

Question 4. Apparently internal documents at the EPA, which were released to

the press earlier this year, suggest that staff at the White House attempted to force

the Agency to rewrite information on global warming in its ‘‘Draft Report on the

Environment’’. Administrator Whitman made the decision to delete the global

warming chapter from the report rather than print false information, but the net

result is that the White House has placed what amounts to a gag order on the EPA

when it come to discussing global warming and climate change.

Since the report is officially still in draft form, will you agree to review the data,

and the edits that occurred including those made by the White House, and consider

reinserting the global warming chapter as originally written by the staff at the

EPA?

Response. I applaud Administrator Whitman for this valuable report on a wide

range of topics relating to the environment. I am not familiar with all of the issues

you have raised but, if confirmed, I welcome the opportunity to learn more on this

topic.

Clean Air

Question 5. Following up on a point I made in my opening statement, one of the

expectations members of the Senate have of the EPA is that it provide reliable, unbiased, information on the various proposals we are asked to consider. Unfortunately during the past 2 years that has not occurred as much as it should. As I

think Senator Jeffords mentioned, there is a large backlog of requests that members

of this committee have made of EPA which remained unfilled. I am concerned about

all of those, however I am particularly concerned about a request I discussed with

Governor Whitman earlier this year to provide comprehensive analysis of the Clean

Air Planning Act. Given the fact that the President has asked this committee to consider the Clear Skies Act, and we have been provided substantial analysis from EPA

of that bill, it seems only fair that we also be provided comparable analysis of the

alternatives including my bill and that of Senator Jeffords.

I am concerned that the analysis EPA is planning to conduct of my bill will not

provide what I asked for—which is a complete analysis of the bill with the concept

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of 4-P (four pollutants) included from the beginning, rather than a 3-P bill with carbon tacked onto the end.

Will you agree to have EPA conduct a rigorous, comprehensive analysis of both

the costs and benefits of these two other proposals?

And will you see that such an analysis does not use the results of the Clear Skies

analysis and simply modify them to fit the dates and rates of our bills, but rather

starts the analysis with fresh assumptions and criteria appropriate to the scenarios

described in those two bills, including their requirement for mandatory carbon controls?

Response. As I stated at the hearing, if confirmed, it is my intention to work with

you directly, straightforwardly, and in a way that would supply us both with information needed to meet our common goal of clean air.

Changes to Definition of a Wetland

Question 6. This year, the EPA announced that it would consider a proposed rule

that would limit the scope of the Clean Water Act and the wetlands that it has traditionally been applied to. By the EPA’s own estimates some 20 million acres of wetlands—an area the size of Maine—lost Clean Water Act protection under the guidelines issued to EPA field staff in January. Additional wetlands, streams, and ponds,

and other waterbodies could be severely impacted if the proposed rulemaking goes

forward. During the initial public comment period on the rule, 39 out of 42 State

agencies that filed comments made it clear that they oppose the rule as drafted.

Delaware was one of those 39 who asked that the rules not—be changed, particularly because it will leave isolated freshwater wetlands—common in Delaware—with

no protections because the State has relied upon Federal law to date, and no comparable State authority exists to prevent loss of these important wetlands.

Given your position of encouraging the States to have more environmental authority where possible, how would you approach a situation such as this where a strong

majority has stated it does not want to lose existing Federal protections?

Response. Over the past 11 years, I have had many opportunities to work on

issues related to wetlands. Wetlands are a very important part of a natural heritage

that we must protect. I have not been fully briefed on this issue, but I commit to

you to consider the input from States, and others in determining how to proceed.

Total Maximum Daily Load Rules

Question 7. The EPA has been subject to numerous lawsuits regarding its Total

Maximum Daily Load rules over the past decade. As a result, the Agency has compiled a list of the lawsuits. However, do you know, or can you find out, if the Agency

has compiled a list of waters that have been successfully cleaned up and removed

from the program? If not, would you create such a data base?

Response. I am not privy to such information and do not presently understand

the nuances of the issue well enough to commit to creating such a data base.

Mercury MACT Process

Question 8. Under the Clean Air Act and a court-approved settlement agreement,

EPA is required to propose regulations by December 15, 2003 limiting mercury

emissions from power plants. The Clean Air Act requires those regulations to reflect

the limitations achieved by the best-controlled sources in the source category. (The

actual Clean Air Act language is ‘‘the average emission limitation achieved by the

best performing 12 percent of the existing sources....’’)

EPA established a stakeholder group that met once a month from mid–2001 to

early 2003. At EPA’s request, the various stakeholders within the group generated

numeric recommendations for a standard. Throughout the lifetime of the stakeholder group, EPA indicated repeatedly that it would use the recommendations to

run IPM models of possible approaches to a standard. At least four meetings of the

group were scheduled with the explicit commitment by EPA that IPM results would

be presented—but they never were. Ultimately, the group was disbanded without

its recommendations being modeled.

EPA also committed to the stakeholder group repeatedly to having a draft of the

rule by June 2003, but this did not happen either. In light of the fact that the Office

of Management and Budget typically takes 90 days to review a proposed rule before

its release, and given that the proposal is required by December 15, the Administration is clearly way behind schedule.

The reason for this situation is obvious: The Administration claims that Clear

Skies will result in a 70 percent reduction in mercury emissions from power plants.

The problem with this figure is that it refers to reductions from CURRENT emission

levels. A much more meaningful comparison is between Clear Skies emission levels

and business-as-usual levels. If EPA were to model the stakeholder recommendations or to come out with a draft rule that was fairly based on the recommendations,

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it would be clear that under Clear Skies mercury emissions from power plants in

the 2008/2010 timeframe would far exceed what they would likely be under the

Clean Air Act.

As Administrator of EPA, would you assure that regulations limiting mercury

emissions from power plants are promulgated by the December 15, 2003 deadline?

Response. I am aware that this situation exists, but I am not familiar with all

of the issues associated with this question, and, if confirmed, I would welcome the

opportunity to learn more about the issue.

Question 9. EPA solicited recommendations for a mercury emissions standard for

power plants from the stakeholder group that it established, and made repeated

commitments to the group to run IPM models based on the recommendations. Further, in recent years the Agency has used the IPM model in developing major rules.

As Administrator, would you use the IPM model in arriving at a proposed mercury

rule? If not, why not?

Response. As Governor of Utah, one of my major tenets was the use of sound

science and analysis in making informed public policy decisions. If confirmed, scientific and economic analysis will be continue to play a major role in EPA policy.

Question 10. The Clean Air Act requires that regulations for mercury emissions

from power plants reflect the limitations achieved by the best-controlled sources. If

the Administration promulgates a standard that fairly reflects that requirement, it

will be obvious that Clear Skies would be much weaker than the Clean Air Act in

dealing with mercury emissions from power plants. As Administrator, how would

you deal with this dilemma?

Response. I am still learning about this issue, but if confirmed I intend to comply

with all legal requirements.

Request for Updates on the Status of Several Rules/Regulations/Actions

Question 10. Governor Leavitt, As is always the case the EPA is working on a

number of rules and proposals.

To name just a few, they include the new 8-Hour Ozone Standard, the PM 2.5

Standard, the Non-Road Heavy Duty Diesel Rule, Air Toxics from Mobile Sources.

Attached is a list of 11 rules or regulations that I understand are forthcoming from

the Agency.

1. Please provide an update on the status of each of these 11 items.

2. Will you commit to seeing that each of these proceed forward without delay?

I suspect a new EPA Administrator would get an update on these as part of your ‘‘orientation’’ to the job, and I ask that you share that information with us on the

committee.

Response. The status of each of the deadlines for the topics set forth in your request is not known to me. If confirmed, I look forward to learning more about each

of these important areas and the actions EPA is undertaking to ensure its obligations under the Clean Air Act are met in a timely manner. I am committed to providing cleaner air for the public and will make every effort to ensure that EPA

meets applicable deadlines.

RESPONSES OF GOVERNOR MICHAEL O. LEAVITT TO ADDITIONAL QUESTIONS FROM

SENATOR CLINTON

Question 1. On Wednesday, January 15, the Environmental Protection Agency

(EPA) and the U.S. Army Corps of Engineers (Corps) published in the Federal Register an Advance Notice of Proposed Rulemaking (ANPRM) raising questions about

the jurisdiction of the Clean Water Act (CWA). Simultaneously, they released guidance to their field staff regarding Clean Water Act jurisdiction over certain non-navigable, intrastate, isolated waters.

Both the ANPRM and guidance represent attempts to remove Federal protection

from many waters (including many creeks, streams, small ponds, and wetlands) that

have been protected by the Clean Water Act for 30 years.

Do you support the proposed rulemaking to limit the types of streams, wetlands,

ponds or other waters that are covered by the Federal Clean Water Act? If so, which

waters do think should not be regulated by the EPA or Corps?

Response. Over the last 11 years, I have had many opportunities to work on

issues related to wetlands. Wetlands are a very important part of a natural heritage

that we must protect. I have not been fully briefed on the issue, but if confirmed,

I commit to you to consider the input from States and others in determining how

to proceed on this issue.

Question 2. Agencies from 39 States submitted comments to the Bush Administration indicating that they oppose the proposal to restrict the waters that receive FedVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00150 Fmt 6633 Sfmt 6621 92385 SENENV1 PsN: SENENV1
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eral Clean Water Act protection. Many stated that they lack either the legal tools

or financial resources to protect all of the waters in their States without the Clean

Water Act. Would you support restricting Federal protections even if States opposed

such a move?

Response. If confirmed, I intend to utilize a process that takes into consideration

input from States, tribes, and local government as well as other interested parties.

Question 3. As Governor of Utah, have you supported any proposal to restrict the

scope of the Clean Water Act’s jurisdiction, or allow States to determine which waters should be protected by water quality standards?

Response. The State is implementing the Clean Water Act. However, this question

may be interpreted to apply to numerous actions or statements regarding the Clean

Water Act. During my tenure as Governor, State agencies have made recommendations regarding various aspects of the Clean Water Act and its reauthorization. Both

Western Governors Association and National Governors Association have adopted

resolutions regarding various aspects of the Clean Water Act and its reauthorization. The State of Utah has been involved in plans to construct the Legacy Highway

and in the judicial challenge to the project; aspects of the Clean Water Act are

under consideration in this matter. The State is from time to time named as a party

in a lawsuit, based in part on some aspect of implementation of the Clean Water

Act.

Question 4. If you determined at some point that there was a need to redefine

which waters are covered by the Clean Water Act, would you commit to bring such

a proposal to this committee and to Congress in the form of legislation rather than

making changes to the scope of the law through regulatory changes?

Response. Before I could make a determination whether a legislative fix was needed, I would need to be briefed fully on the issue.

One of the earliest and biggest controversies of this Administration’s environmental policies was the effort to reopen the rule that lowered the Safe Drinking

Water Act standard for arsenic in drinking water from 50 parts per billion to 10

ppb.

Question 5. If confirmed, would you be aggressive in enforcing the Clean Water

Act especially in guiding the cleanup of Onondaga Lake and the Hudson River?

Would you use your authorities under the Clean Water Act to regulate ships’ ballast

discharges in the Great Lakes?

Response. I will be aggressive in enforcing the Clean Water Act. As I said in my

confirmation hearing, if there are those who avoid or evade the requirements of the

law the full weight of the EPA and the law will be brought to assure their compliance. I am not familiar with the issue of regulating ballast water discharges by ships

into the Great Lakes, but if I am confirmed I will look closely at the issue.

Question 6. As Governor of Utah, did you (individually or as part of the Western

Governors Association) or your State agencies take any position with respect to the

arsenic in drinking water rule?

Response. Yes, the Utah Division of Drinking Water took a stance that 10 ppb

was too low a standard and that 20 ppb would have been a better standard. The

Division of Drinking Water based their position on a study that EPA funded in

1997, and published in the Environmental Health Perspectives Volume 107, Number 5, May 1999. The study is entitled ‘‘Drinking Water Arsenic in Utah: A Cohort

Mortality Study’’. In the concluding paragraph, the statement is made:‘‘. . . cohort

members contributed many years to the highly exposed group and some died at an

advanced age with no perceived adverse effects, . . .’’ The Division staff felt that

the old standard of 50 ppb was too high, and that additional studies were needed

to determine dose/response relationships at the lower 3–10 ppb level that was being

proposed.

Question 7. A February 2003 EPA report on Clean Water Act enforcement rated

Utah dead last—tied with Ohio and Tennessee—on Clean Water Act enforcement.

The report rated the State using a number of factors, and Utah scored very poorly

in each category.

Can you explain why Utah was rated last in this report?

Response. I inquired of the Utah Department of Environmental Quality and was

supplied with the following information. At the time the reports were pulled from

the EPA PCS data base, our data entry was incomplete; the missing data were

flagged as violations. Other data were incorrect. The data are now current, and

Utah’s low rate of noncompliance ranks with the 10 best States in the Nation.

I am informed that of the Kennecott violations cited in the report, five of the six

were not actual violations. Three of the reported violations were due to data entry

errors in PCS, one was a reporting error by the permittee, and one appears to be

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a problem with the PCS system itself. The data base has been corrected. One item

which is flagged as a violation is for a compliance schedule being missed on a special environmental project done by a third party. This information should not have

been coded into PCS in the first place and is not a Kennecott violation. The reported

900 percent exceedance of mercury was due to an error in the coding of the effluent

limits. Their actual discharge did not exceed permit limits.

Question 8. As Governor, did you or your State environmental agencies ever oppose US EPA efforts to enforce Federal laws like the Clean Air Act, Clean Water

Act, hazardous waste laws or other laws overseen or administered by EPA? If so,

can you provide the committee with a list of any such incidents?

Response. I support implementation of the Clean Air Act, the Clean Water Act,

and other laws administered by EPA In 1994, the State of Utah filed a petition in

the Federal 10th Circuit Court of Appeals challenging decisions by EPA that 1)

Utah’s request to redesignate the Salt Lake and Davis Counties Area from a nonattainment area for ozone to an attainment area was incomplete and 2) Utah had

failed to timely submit SIP revisions thereby starting a clock that could lead to imposition of sanctions to include restrictions on the use of highway funds. EPA had

also informed the State that the finding of incompleteness triggered a ban on conformity findings for new transportation projects. Subsequent actions by EPA offered

to Utah an opportunity to submit a reorganized request for redesignation. Utah accepted the offer and EPA withdrew its finding of incompleteness and conformity

ban. Utah submitted a revised plan and EPA determined it was complete. Further,

EPA initiated rulemaking and determined the State had attained the ozone standard redesignating Salt Lake and Davis Counties to attainment. The case was therefore voluntarily dismissed by agreement of Utah and EPA in 1995.

Utah has also filed Amicus Briefs supporting EPA’s adoption of Clean Air Act regulations.

There have been hundreds of compliance actions by the State and EPA during the

last decade conducted cooperatively which reflect the State-Federal partnership we

have tried to create.

Question 9. Under this Administration, enforcement of many laws administered

or overseen by EPA has declined.

If you were Administrator, what specific steps would you take to address this

problem? Can you pledge to this committee that enforcement levels—number of civil

and criminal cases filed, and size of penalties—would be restored to previous levels?

Would you support bringing the number of EPA enforcement staff back to previous

(FY 2001) levels?

Response. As I said in my confirmation hearing, if there are those who avoid or

evade the requirements of the law the full weight of the EPA will be brought to assure their compliance.

Question 10. Aquatic invasive species are an enormous problem for the Great

Lakes which alter the food chain and habitat of native species and cause hundreds

of thousands of dollars of damage for industry each year.

Are you aware of the problem of aquatic invasive species and do you support having the EPA take a more active role in preventing new invasions?

Response. I am not familiar with the particulars of the impact of aquatic invasive

species on the Great Lakes, but I am interested in learning more about this issue

and the appropriate role for EPA in addressing the problem.

Question 11. Research over the past decade has demonstrated that children and

the elderly are more vulnerable to a variety of environmental health hazards, and

that some populations, particularly low-income and minority communities, face

greater exposures to such hazards.

How will you assure the protection of the health of those who are most vulnerable? How will vulnerable populations be considered as EPA sets health and safety

standards? What steps will you take to reduce health hazards to those who face

higher exposure levels?

Response. I certainly believe it is important to protect sensitive populations from

exposure to environmental hazards. I am not familiar with EPA’s specific efforts to

consider sensitive populations in its rules and policies. If confirmed, I look forward

to learning more about what the Agency is doing in this regard and in having the

Agency play a leadership role in protecting children, the elderly, and low income

and minority communities.

Question 12. In discussing how the implementation of environmental policies and

programs should be guided by cost/benefit approaches, the ‘‘Enlibra Principles’’ you

promote, as adopted by the Western Governors Association, say ‘‘not all benefits and

costs can be easily quantified or translated into dollars. There may be other noneconomic factors such as equity within and across generations that should also be

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fully considered and integrated into every assessment of options. The assessment of

options should consider all of the social, legal, economic and political factors while

ensuring that neither quantitative nor qualitative factors dominate.’’ I commend you

for acknowledging the importance of qualitative as well as quantitative issues, and

for recognizing the impact of our actions across generations.

How would you go about incorporating these principles in Federal policy? What

changes to our current cost/benefit process do you espouse?

Response. Enlibra is a philosophy. One of the principles is to recognize benefits

and costs. The rationale is simple: we can make better decisions if we are fully informed, including quantitative and qualitative factors. I do not have sufficient information, and it would be premature to recommend specific changes to how benefitcost analysis is done in the EPA.

Question 13. A strong and effective Office of Children’s Health Protection (OCHP)

is vital to ensure that the EPA’s standards and regulations protect children from

environmental health and safety hazards. I believe the OCHP, in collaboration with

public health agencies such as the Centers for Disease Control and Prevention, can

be instrumental in improving the EPA’s research efforts to evaluate the impacts of

environmental exposures on children’s health and to develop the strongest and best

protective measures.

Do you agree with these statements? How do you see the role of OCHP in your

EPA? Will the OCHP continue to report directly to you? The Office has been without

a permanent director since March 2002, and substantial new responsibilities have

been placed in it without commensurate increases in staff and resources. How will

you address these problems?

Response. I agree that EPA needs to take a leadership role to protect children

from environmental hazards. I am not familiar with the responsibilities of the office

you mention or the particular situation with its director or staff resources. If confirmed, I look forward to learning more about this office and its efforts to protect

children’s health.

Question 14. There are currently 12 Centers for Children’s Environmental Health

and Disease Prevention Research Centers, two of which are based in New York, one

at Mt. Sinai Medical Center and another at Columbia University. The 12 centers

combine a multidisciplinary approach to researching, identifying, treating, and ultimately preventing health risks posed to children by environmental hazards in the

communities in which they live, play and attend school. The research and outreach

that these centers initiate is unparalleled. The centers have not only begun important studies into the potential impacts of our environment on children’s health, but

have also cultivated invaluable relationships with their surrounding communities.

As you may know, these Centers are jointly funded by the EPA and the National

Institute for Environmental Health Sciences (NIEHS). However, the EPA cut their

portion of the funding by $1.5 million a year in the 2004 budget, which would essentially leave funding for only 10 centers in the next cycle. Withdrawing support for

these programs at this time would weaken the development of these important studies and thwart, rather than foster, the unique community-university relationships

that have already been established.

Will you support maintaining funding for these centers in your budget requests

so they can continue research efforts on behalf of our nation’s children?

Response. I agree that research efforts involving children and other sensitive populations are very important. I would need to be fully briefed before making any decisions on funding of research efforts in this area.

Question 15. The EPA plan to clean up the Hudson River was finally completed

after 10 years of analysis. This project is essential to ensuring environmental and

public health safety for New Yorkers. This long awaited project gives hope to residents that dredging will cleanup the most contaminated parts of the river, and bring

the river’s condition to acceptable health and safety levels.

If confirmed, will you support implementation of the Hudson River plan and do

everything within your power to ensure that the cleanup proceeds as expeditiously

as possible? Further, will you commit to an open and transparent process that provides adequate opportunity for input from the public and all interested parties?

Response. I am certainly committed to an open and transparent process for information sharing and public input. I look forward to learning more about this site and

working with communities and other interested parties as the project proceeds.

Question 16. In my time in the Senate, I have witnessed the economic and community benefits of the brownfields programs throughout New York State. New York

has the potential to become a leader in the redevelopment of brownfields—thus far

it has created jobs, spurred economic development and recycled acres of New York

lands. I have co-sponsored the Brownfield Site Redevelopment Assistance Act, and

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the Brownfield Revitalization and Environmental Restoration Act of 2001, which

was signed into law in January 2002. This law created a significant new influx of

Federal resources into brownfield redevelopment activities. The expansion in Federal resources makes it more important than ever that communities across New

York State are aware of and able to take advantage of available resources.

Will you support full funding for this important program at its authorized levels

in your budget requests?

Response. I am a strong supporter of the cleanup and redevelopment of

Brownfield properties. If confirmed, I commit to continue EPA’s efforts to provide

funding to help State and local governments cleanup and redevelop Brownfield properties.

Question 17. As you are well aware, the EPA recently issued its final rule regarding New Source Review. This new rule which allows plants to get out of placing pollution controls when they replace equipment, even if the new equipment would increase pollution, would have a significant negative effect on New York’s environment. As it is, medical evidence strongly links air pollution to asthma attacks, heart

attacks, cardiopulmonary disease, cancer, and premature death. The American Lung

Association’s ‘‘State of the Air 2002’’ report notes that Staten Island had 37

unhealthy air days due to high ozone levels, while Manhattan had 36, Suffolk County on Long Island had 34, and Chautauqua County had 28 between 1998 and 2000.

This acid deposition has caused 20 percent of the lakes in New York’s Adirondack

Park region to become too acidic to support fish life. Federal studies conclude that

the percentage of acidified lakes is expected to increase or even double over the next

four decades unless upwind emissions of nitrogen oxides and sulfur dioxide, primarily from coal-fired power plants, are reduced.

Will you suspend implementation of these rules, pending a thorough study of its

impacts on human health and the environment?

Response. I am aware that there are differing perspectives concerning the recent

changes made by EPA to the New Source Review program. If confirmed, I would

like to understand in greater depth and detail the data, issues and perspectives associated with this complex subject.

Question 18. Prior to becoming Governor, you were part owner in a fish hatchery,

which reportedly spread the fish pathogen ‘‘whirling disease’’ by conducting illegal

transfers of infected fish throughout Utah. The farm’s owners were reportedly

charged with 33 counts by the Utah Attorney General, including the charge of operating a fish-hatchery without a license. It has been reported that once you took office as Governor, 71 employees of the Utah Division of Wildlife Resources were fired,

demoted or left the Agency, including those involved in the investigation of the fish

hatchery that you . In addition, it has been reported that regulation of commercial

fish hatcheries was subsequently removed from Utah’s Department of Fisheries and

transferred to an advisory committee comprised primarily of fish industry executives.

Are these reports accurate? Can you explain why you made these changes in personnel and the way in which hatcheries are regulated in Utah?

Response. This question and the article that is referenced are based on inaccurate

information. As Governor, I have scrupulously avoided making statements or taking

actions that could influence State regulations of the aquaculture industry. Personnel

changes at the State Division of Wildlife Resources were unrelated to whirling disease and based on recommendations from a national consultant. They occurred as

part of a statewide restructuring that impacted every State agency as I began my

public service. The former Chief of Fisheries, Bruce Schmidt, made it clear in a public forum letter published in the Salt Lake Tribune that, ‘‘throughout the attempt

to clean up whirling disease, the Governor had no direct involvement in the decisions made regarding the investigation or the negotiations on actions required to

eliminate and/or contain the disease.’’ (Salt Lake Tribune, 9/13, 2003.)

Question 19. Concerned Utah citizens have brought several environmental enforcement cases to my attention that I would like your comments on. According to

the information provided to me:

• The Phillips Refinery, in the populated Wasatch Front of Utah, emitted excessive amounts of sulfur more than 1,000 times between September 1994 and November 1997. During the fall of 1994, the company’s monitoring system was down as

much as 39.6 percent of the time. EPA took enforcement action against the facility

in November 1997, but said it may not have, had the Utah Department of Environmental Quality done its job. DEQ instead defended the Phillips Refinery and criticized EPA’s action.

• In December 1995, the Utah Department of Environmental Quality (DEQ)

issued a Notice of Violation to Envirocare for numerous problems at its radioactive

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waste disposal site, including improper storage, leaking containers and cracks in

storage pads. The State assessed a $30,000 fine for these violations. U.S. EPA expressed concern over the penalty being too low, and DEQ responded by increasing

the penalty to $79,000. Convinced that this was still too low given the severity of

the violations, the EPA issued its own Notice of Violation and fined Envirocare over

$600,000.

• Your DEQ failed to press US Magnesium (formerly MagCorp), a magnesium

ore facility listed by EPA as one of the nation’s worst polluters, to reduce its pollution and end illegal dumping practices despite intense local pressure from citizen

groups. US Magnesium only started to clean up its act after EPA stepped in with

a series of Federal enforcement actions against the company.

Are these descriptions accurate? If so, can you explain why DEQ did not enforce

the law in a timely and meaningful manner in each of these situations?

Response Regarding Phillips Refinery

The Phillips Refinery situation resulted from a difference in interpretation of language in the Utah State Implementation Plan (SIP); it was not an issue of the Utah

Department of Environmental Quality (DEQ) not doing its job. The Department and

EPA Regional VIII spent many months trying to resolve their differences but were

ultimately unable to agree. The DEQ did state its position on the matter and defended its SIP language, but DEQ did not defend Phillips. There were no violations

of any air quality standards in Davis County during the period in question.

Response Regarding Envirocare

The Notice of Violation (NOV) issued to Envirocare in 1995 was resolved through

a negotiated settlement agreement. This settlement included a $30,000 penalty that

was calculated using Utah’s penalty policy and methodology, both of which are approved by EPA, for violation classification. Using its own penalty policy and calculation methodologies (which are significantly higher than Utah’s policies), EPA concluded that Utah’s penalty was insufficient. Although the State disagreed, attempts

were made to negotiate an amendment to the original settlement in order to satisfy

EPA’s concerns. These negotiations were never finalized because EPA proceeded to

issue its own complaint against the company. This complaint was a copy of the

State NOV reformatted into an EPA document. The complaint also included EPA’s

opinion that Envirocare’s potential penalty liability was approximately $600,000.

Subsequent to the EPA complaint, Envirocare, the State and EPA negotiated a

three-party agreement to resolve the issue, which included an additional penalty of

$167,065.20, bringing the total penalty to $197,065.20.

Response Regarding US Magnesium

EPA’s involvement in the US Magnesium issue was at the invitation of the State.

EPA was asked to provide an interpretation of a Federal hazardous waste rule to

assist the State in defining regulated waste streams at the facility. There has been

no final resolution of these issues; there have been settlement discussions.

Question 20. Should you be confirmed, would you consider it EPA’s responsibility

to provide an enforcement backstop for the States in cases where States decline to

enforce the law?

Response. It is important that EPA and the States work in concert to achieve environmental compliance. Each partner brings special strengths that support the

other. I would ensure that the law is enforced, but EPA can achieve our national

goals best by finding ways to improve State compliance programs that have primary

responsibility for environmental program implementation in most areas. There are

a variety of existing mechanisms to effectively respond in an instance when a State

declines to enforce the law.

Question 21. Can you please explain your environmental enforcement philosophy

as Governor of Utah. How will it affect your environmental enforcement philosophy

as EPA Administrator?

Response. I have always supported enforcement of environmental regulations as

Governor of Utah. For example, EPA has given very high marks to the Utah Division of Air Quality’s Compliance Program for several years. Utah has been recognized as a leader in compliance assurance and the use of Supplemental Environmental Projects to benefit public health and the environment such as dioxin assessments, renewable energy, and raptor protection. I would continue that philosophy

if my nomination is confirmed.

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STATEMENT OF U.S. EPA LABOR UNIONS ON IMPROPER WHITE HOUSE INFLUENCE ON

EPA’S RESPONSE TO THE TERROR ATTACK OF SEPTEMBER 11, 2001

We, the undersigned representatives of the workers who perform health and environmental protection duties at the U.S. Environmental Protection Agency across

America, express our anger and dismay over evidence of the White House’s improper actions in connection with communicating health risk information to emergency workers and residents in New York immediately following the terror attacks

on that city on September 11, 2001.

EPA’s dedicated Civil Service employees performed their duties swiftly and competently following the terror attack, assessing as accurately as possible the environmental health risks faced by the brave rescue workers and nearby residents from

toxic substances released in the attack. These workers reported to senior EPA officials their best estimate of the risks, and they expected those estimates and the accompanying recommendations for protective measures to be released in a timely

manner to those who needed the information.

The public was not informed of all of these health risks, some of which were

avoidable. This information was withheld from the public under orders from the

White House. Instead, the Bush White House had information released, drafted by

political appointees, that it knew to contradict the scientific facts. It misinformed.

And many rescue workers and citizens suffered. Some citizens now face the longterm risk of asbestos-related lung cancer as well as other debilitating respiratory

ailments as a result.

Little did the Civil Service expect that their professional work would be subverted

by political pressure applied by the White House. This unwarranted and inexcusable

interference with the professional work of the Civil Service by politicians reporting

directly to President Bush caused rescue workers and residents to be exposed to

health risks that could have been, indeed should have been, avoided.

We express our solidarity with the rescue workers and residents who were affected adversely by this outrageous action of President Bush’s staff. There is no excuse for White House politicians imposing their values and overriding the Civil

Service’s best advice on protecting those still digging in the wreckage and those

whose homes and offices were covered with toxic debris.

President Bush owes the rescue workers, residents, dedicated Civil Service workers and the American people more than an apology for his actions in this matter.

President Bush should take steps to compensate the rescue workers and residents

who were harmed by his administration’s actions.

The President’s political appointees’ interference with the professional work of the

EPA Civil Service has seriously harmed EPA’s credibility. Before there is another

national emergency, that credibility must be restored.

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The President must pledge to never again order EPA to tell less than the whole

truth about a public health emergency.

Signed,

PAUL SACKER,

President AFGE Local 3911, New York.

DWIGHT WELCH,

President NTEU Chapter 280, Washington, DC.

ALAN HOLLIS,

President AFGE Local 3631, Philadelphia.

HENRY BURRELL,

President AFGE Local 3428, Boston.

NANCY BARRON,

President NAGE Local R5–55, Atlanta.

GRETCHEN HELM,

President AFGE Local 3331, Washington, DC.

CHARLES ORZEHOSKIE,

President AFGE Local 704 Chicago.

MERRIT NICEWANDER,

President AFGE Local 1003, Dallas.

JOHN C. ANDERSON,

President NTEU Chapter 294 Kansas City.

KEVIN ORENDORF,

President AFGE Local 3607, Denver.

WENDELL SMITH,

President ESC EPA-Unit San Francisco.

PATRICK CHAN,

President NTEU Chapter 295, San Francisco.

MARY ST. PETER,

President AFGE Local 1110, Seattle.

MARK CORYELL,

President AFGE Local 3907, Ann Arbor.

LARRY PENLEY,

President NTEU Chapter 279, Cincinnati.

SILVIA SARACCO,

President AFGE Local 3347 Research Triangle Park.

NITA TALLENT-HALSELL,

President NAGE R12–135, Las Vegas.

LESLEY MILLS,

President NAGE R1–240, Narragansett.

GERALDINE CRIPE,

President NAGE Local R5–95.

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STATEMENT OF THE SKULL VALLEY BAND OF GOSHUTE INDIANS

On November 8, 1984, Administrator William D. Ruckelshaus promulgated an

EPA Policy for the Administration of Environmental Programs in Indian Reservations. This Policy recognized Tribal Governments as sovereign entities with the primary authority and responsibility for tribal lands and their residents. It stated:

‘‘EPA will work directly with Tribal Governments as the independent authority for

reservation affairs, and not as political subdivisions of States or other local governmental units.’’ The Policy also recognized Tribal Governments as the appropriate entities to be

making program decisions for Indian reservation lands. This longstanding EPA Policy was reaffirmed by Administrator Christine Todd Whitman on July 11, 2001.

Governor Leavitt’s actions toward the Skull Valley Band and other Utah Tribes

bear no resemblance to the EPA Indian Policy, and many Tribes share our concern

that he will not reaffirm this national policy, and that he will undermine tribal govVerDate 11-MAY-2000 13:53 Mar 12, 2004 Jkt 000000 PO 00000 Frm 00347 Fmt 6633 Sfmt 6621 92385 SENENV1 PsN: SENENV1
344

ernments in their decisionmaking relative to the development and environmental

protection of their own lands.

Examples of Governor Leavitt’s actions as Governor include:

• Supporting State legislation, enacted in 2001, which asserts Utah State regulatory jurisdiction over all Indian reservations within the State of Utah. That legislation was declared unconstitutional by a U.S. District Judge in July 2002, and the

Governor’s appeal is pending in the U.S. Court of Appeals. Among other things, the

legislation purported to impose State permitting requirements on ‘‘any source of air

pollution proposed to be located . . . within the boundaries of any Indian reservation . . .’’ And on ‘‘any facility which will potentially or actually have a significant

impact on the State’s surface or groundwater resources . . . even if located within

the boundaries of an Indian reservation.’’ U.C.A. 19–3–302(7)(b) and (c). The ostensible purpose of the legislation was to prohibit the Skull Valley Band from hosting

a federally licensed storage project for spent nuclear fuel rods on its Reservation,

but the breadth of the legislation was much greater. Neither Governor Leavitt, nor

any official of the State, made any effort to consult with Utah Indian tribes regarding this legislation.

• Failing to take any action to resolve longstanding claims against the State by

Navajo Indians residing in San Juan County, Utah, for whom the State of Utah

holds in trust revenues from oil and gas leases from Navajo tribal land under a

1933 Act of Congress. Litigation has been pending in Federal court for over a decade, but the only response of the Governor has been to suggest that the State divest

itself of this statutory responsibility. No effort has been made to account fully to

the Navajo beneficiaries.

• Providing State taxpayer funding of over one half million dollars to private attorneys to represent various dissident factions of Goshutes to oppose their tribal

government by:

• Creating an ostensibly ‘‘traditional’’ Indian organization, made up of Goshutes

and non-Goshutes, to speak out against the Band’s government, including venues

in Washington, DC.

• Filing numerous frivolous lawsuits and administrative appeals, none of which

have been successful, to challenge a tribal lease of reservation lands, the Bureau

of Indian Affairs’ recognition of the Band’s Executive Committee as the legitimate

governing Body of the Band, and the actions of various Federal agencies which have

been supportive of the Band.

• Withdrawing $42,000 from a tribal bank account, using a phony court order,

and successfully freezing hundreds of thousands of dollars of Federal program funds

held in Salt Lake City banks. Three different sets of attorneys, funded by the State,

are now filing briefs to prevent the bank from releasing these funds back to the

Band.

• Supporting both Federal and State legislation to build a ‘‘moat’’ (Governor

Leavitt’s chosen words) around the Skull Valley Reservation. Federal legislation,

passed by the House of Representatives last year, but not enacted, would have prevented the Secretary of the Interior from issuing rights-of-way for any industrial access across public lands in Utah to reach either of the two Goshute Reservations

in the Utah West Desert—unless the Governor of the State of Utah concurred in

allowing the land use planning process to begin. The Skull Valley Reservation has

no industrial development on its Reservation, which is surrounded by toxic waste

depots, including military installations where biological and chemical weapons have

been developed. Tooele County, Utah, has zoned this region as a toxic waste dump.

But the Governor wants veto power over any access to the Reservation, and has endeavored to build a ‘‘moat’’ around the Reservations. He has publicly stated that he

will not consult with Skull Valley leaders on these issues until they give up their

multi-million dollar (and lawful) opportunity to store civilian nuclear fuel rods on

their Reservation.

• Holding secret meetings with high-ranking Federal officials in Washington,

DC, asking them to take actions to withdraw or suspend approvals of tribal leases,

to withdraw recognition of the leadership of the Skull Valley Band, to support legislation which would build a ‘‘moat’’ around the Skull Valley Reservation, and to oppose an ad judicatory licensing process at the Nuclear Regulatory Commission.

Governor Leavitt’s approach to the Skull Valley Band is to force it to be dependent upon the charity of their non-Indian neighbors, which is the historical policy in

Utah for dealing with Indian tribes.

345

RESPONSES TO HEARING QUESTIONS FOR GOVERNOR LEAVITT FROM SKULL VALLEY

TRIBE

Question 1. If confirmed as the Administrator of the Environmental Protection

Agency, will you immediately reaffirm the EPA Indian Policy, followed by previous

Administrators, dating back to 1984?

Response. The introductory statement provided with these questions does not accurately reflect actions taken by the State of Utah.

The statements regarding the Skull Valley Band of Goshutes, individual members

of the Band, and the Goshute Reservation are related to a proposal by Private Fuel

Storage, LLC, a consortium of nuclear power companies, to build a privately owned,

for-profit, above-ground storage facility for high-level nuclear waste on the Skull

Valley Band of Goshutes Indian Reservation. No other facility of this nature has

ever been licensed, and the proposal raises several legal, public policy, and practical

questions. Utah does not itself generate high-level nuclear waste, and it has been

the policy of the State to oppose the proposal in a vigorous but legitimate way. Several members of the Skull Valley Band have also opposed the waste facility, because, among other reasons, they see it as a form of environmental discrimination

against them. The license application is pending before the U. S. Nuclear Regulatory

Commission and the State of Utah is an admitted party to that administrative process. The State is also a party in two judicial appeals, one with the U.S. Court of

Appeals, D.C. Circuit, and one with the U.S. Court of Appeals, 10th Circuit. Because

I have been Governor of Utah during the entire period of these matters and have

taken specific positions on these matters, I will follow Federal procedures to avoid

a conflict of interest in these matters, if confirmed as Administrator of EPA.

The statements regarding Navajos living in Utah also misrepresent the facts.

Utah and a class of individual plaintiffs have been engaged for several years in a

complex lawsuit. The plaintiffs do not represent the Navajo Nation, whose interests

are, in fact, adverse to those of the plaintiffs. The State of Utah has taken many

steps to resolve the dispute, including by compiling and turning over to the court

more than 40 volumes of financial accounting. The court has not yet determined

that the State is liable to the plaintiffs. Because this issue concerns matters that

I have worked on during my terms as Governor of Utah, I will follow Federal procedures to avoid a conflict of interest in this matter, if confirmed as Administrator

of EPA.

I look forward to working with Tribal Governments to protect the environment.

If confirmed, I look forward to learning about the policy and establishing the appropriate relationship with sovereign Tribal Governments.

Question 2. Will you personally direct employees of EPA to follow the policy, by

respecting the decisions made by Indian tribal governments to develop, regulate,

and administer their own Indian tribal lands?

Response. If confirmed, I expect to be briefed on the policy and will implement

EPA laws and regulations regarding work with Tribal Governments. I will also follow Federal procedures to avoid a conflict of interest.

Question 3. Will you direct EPA employees to support the imposition of State regulatory and permitting requirements on Indian tribal and allotted lands?

Response. It is my understanding that EPA employees are responsible for implementing Federal environmental laws. If confirmed, I expect to be briefed on this

issue. I will also follow Federal procedures to avoid a conflict of interest in this matter.

Question 4. Will you direct Agency lawyers to take legal positions, contrary to

prior Agency legal positions, supporting State environmental regulation of Indian

lands, without the consent of the governing Indian tribes?

Response. If confirmed, I expect to be fully briefed on Agency positions. In dealing

with all matters, I will follow Federal procedures to avoid a conflict of interest.

Æ