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73–532 PDF 2013

A REVIEW OF THE PRESIDENT’S FISCAL 

YEAR 2013 BUDGET REQUEST FOR THE 

ENVIRONMENTAL PROTECTION AGENCY 

(112–80) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

WATER RESOURCES AND ENVIRONMENT 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

MARCH 28, 2012 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

Available online at: http://www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=transportation 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JOHN L. MICA, Florida, Chairman 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

FRANK A. LOBIONDO, New Jersey 

GARY G. MILLER, California 

TIMOTHY V. JOHNSON, Illinois 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

SHELLEY MOORE CAPITO, West Virginia 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ANDY HARRIS, Maryland 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

JAIME HERRERA BEUTLER, Washington 

FRANK C. GUINTA, New Hampshire 

RANDY HULTGREN, Illinois 

LOU BARLETTA, Pennsylvania 

CHIP CRAVAACK, Minnesota 

BLAKE FARENTHOLD, Texas 

LARRY BUCSHON, Indiana 

BILLY LONG, Missouri 

BOB GIBBS, Ohio 

PATRICK MEEHAN, Pennsylvania 

RICHARD L. HANNA, New York 

JEFFREY M. LANDRY, Louisiana 

STEVE SOUTHERLAND II, Florida 

JEFF DENHAM, California 

JAMES LANKFORD, Oklahoma 

REID J. RIBBLE, Wisconsin 

CHARLES J. ‘‘CHUCK’’ FLEISCHMANN, 

Tennessee 

NICK J. RAHALL II, West Virginia 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

RUSS CARNAHAN, Missouri 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

MAZIE K. HIRONO, Hawaii 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

STEVE COHEN, Tennessee 

LAURA RICHARDSON, California 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

(II) 

SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT

BOB GIBBS, Ohio, Chairman 

DON YOUNG, Alaska 

JOHN J. DUNCAN, JR., Tennessee 

GARY G. MILLER, California 

TIMOTHY V. JOHNSON, Illinois 

BILL SHUSTER, Pennsylvania 

SHELLEY MOORE CAPITO, West Virginia 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ANDY HARRIS, Maryland 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

JAIME HERRERA BEUTLER, Washington, 

Vice Chair 

CHIP CRAVAACK, Minnesota 

LARRY BUCSHON, Indiana 

JEFFREY M. LANDRY, Louisiana 

JEFF DENHAM, California 

JAMES LANKFORD, Oklahoma 

REID J. RIBBLE, Wisconsin 

JOHN L. MICA, Florida (Ex Officio) 

TIMOTHY H. BISHOP, New York 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

RUSS CARNAHAN, Missouri 

DONNA F. EDWARDS, Maryland 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

MICHAEL E. CAPUANO, Massachusetts 

GRACE F. NAPOLITANO, California 

JASON ALTMIRE, Pennsylvania 

STEVE COHEN, Tennessee 

LAURA RICHARDSON, California 

MAZIE K. HIRONO, Hawaii 

NICK J. RAHALL II, West Virginia 

(Ex Officio) 

(III) 

(V) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... vi 

TESTIMONY 

Nancy Stoner, Acting Assistant Administrator, Office of Water, U.S. Environmental Protection Agency .................................................................................... 8 

Mathy Stanislaus, Assistant Administrator, Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency ................................. 8 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Nancy Stoner ............................................................................................................ 46 

Mathy Stanislaus ..................................................................................................... 53 

SUBMISSIONS FOR THE RECORD 

Environmental Protection Agency: 

Inserts for the record ........................................................................... 19, 38 (2) 

Responses to questions from Hon. James Lankford, a Representative 

in Congress from the State of Oklahoma ............................................. 63 

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(1) 

A REVIEW OF THE PRESIDENT’S FISCAL YEAR 

2013 BUDGET REQUEST FOR THE ENVIRONMENTAL PROTECTION AGENCY 

WEDNESDAY, MARCH 28, 2012 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON WATER RESOURCES AND

ENVIRONMENT, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 10:09 a.m. in Room 

2167, Rayburn House Office Building, Hon. Bob Gibbs (Chairman 

of the subcommittee) presiding. 

Mr. GIBBS. Good morning. At this time, we will convene the Subcommittee on Water Resources and Environment. 

Our hearing today is on the review of the fiscal year 2013 budget 

and priorities of the Environmental Protection Agency. 

I will start with my opening statement. 

In the last year, I have become alarmed at the overreach of the 

Environmental Protection Agency. 

The budget put forth from the administration for fiscal year 2013 

does nothing to alleviate my concerns. Starting with the proliferation of so-called ‘‘guidance’’ coming out of the EPA on an exponential increase in regulations being proposed and finalized by the 

Agency, these are attempts to short circuit the process for changing 

a law without following a proper, transparent rulemaking process 

or the consent of Congress. 

These actions being carried out by the EPA are often based on 

questionable science at best, and stand to substantially increase 

the regulatory burdens for States, local governments and businesses, especially small businesses. 

At a minimum since my arrival in Congress, the EPA has sought 

to arbitrarily expand the scope of jurisdiction of the Clean Water 

Act, halt the issuance of permits for legitimate economic development activities, and revoke already issued permits, expand regulation of stormwater, including post-construction site runoff, new development and redevelopment, and existing development through 

retrofitting. 

Inflicts ‘‘one size fits all’’ numerical water quality standards on 

States and river basins, usurps State authority by taking over watershed implementation plans for the Chesapeake Bay and other 

watersheds, subjects Appalachia to unequal treatment under the 

law by enforcing illegal so-called ‘‘enhancement coordination activities’’ related to coal mining. 

2 

Places States in the unenviable position of having to break Federal law or break State law when EPA issues guidance or draft 

guidance in the field. 

These actions among many others mean more unfunded mandates to burden our cities and towns at a time when they need relief from these types of injustices. 

The EPA has taken these actions with little regard to economic 

consequences, with little regard to national security, and most importantly, with little regard to the law. 

This is a Government agency that believes there is no limit to 

its power. 

I am pleased to see that the Federal Courts, including the Supreme Court in the Sackett case, and the U.S. District Court for 

the District of Columbia in the Mingo Logan case are recognizing 

EPA’s power grab and are starting to push back against the EPA. 

Last week, the Supreme Court reigned in on EPA on the Agency’s aggressive use of enforcement orders to strong arm property 

owners, and the U.S. District Court in DC reeled in EPA’s overreach with the Agency’s after-the-fact revocation of a 404 permit 

that had been issued to a West Virginia coal company. 

I am concerned that while the President is imposing more rate 

authority burdens on communities, businesses and citizens, he is at 

the same time calling for eliminating compliance and assistance of 

those same communities, businesses and citizens. 

The President’s budget also calls for the reinstatement of an old 

and arbitrary Superfund tax on chemical companies, financial institutions, and other business sectors that may have nothing to do 

with creating the environmental problems associated with the 

Superfund site. 

What we have here is a Federal agency that will add to the burden of rules and regulations and eliminate programs to help communities come into compliance, but will also put more boots on the 

ground to track down those who cannot come into compliance with 

little or no benefit to the environment. 

This is Government at its worst, an agency cutting facilitators 

but increasing regulators. 

I want clean water as much as everyone, but I recognize that we 

have to have a strong economy so we can be able to afford to invest 

in new programs that new regulations require. 

Today is not the day to put more burdens on the American people. We need to make significant progress in creating long-term 

jobs and a stronger economy before we can tolerate more expansive 

regulations. 

I now recognize the ranking member, Mr. Bishop, for any comments you may have. 

Mr. BISHOP. Thank you very much, Mr. Chairman, and thanks 

to you, Ms. Stoner and Mr. Stanislaus, for being here today for this 

hearing on the administration’s proposed fiscal year 2013 budget 

for the Environmental Protection Agency. 

There is no question that the Federal Government faces difficult 

decisions as we seek to reduce our deficit and promote the growth 

of the economy and jobs at the same time. 

3 

While I agree the deficit reduction is critical, I also feel strongly 

that the American economy needs jobs, and this Congress has a responsibility to support programs that create jobs. 

As we look to cut Federal investment, we also must remember 

that by investing in programs such as water infrastructure development and Superfund cleanups, we will actually create jobs. For every $1 billion we invest in wastewater infrastructure, for 

example, we can create as many as 33,000 jobs in communities 

across America while improving public health and the environment. 

To that end, I believe the administration has tried to balance the 

need to reduce spending with the notion that infrastructure investment will benefit our economic growth. 

While both the State Revolving Funds and Superfund investment 

are slated for modest cuts, which in general, I do not support, I recognize that this budget request reflects a recognition that these 

programs are important job creators that provide economic and environmental benefits to local communities. 

Apparently, the Majority of this committee also believes you have 

achieved a successful balance with respect to your proposed budget. 

The 2013 view and estimates reported by the committee earlier 

this month repeatedly quotes ‘‘supports the President’s request’’ 

with respect to the EPA budget. This is truly a noteworthy occurrence. 

However, with respect to the State Revolving Fund program, the 

proposed cuts to Federal spending contained in this budget highlight the importance of bipartisan action on addressing our Nation’s crumbling wastewater infrastructure. 

This budget request further emphasizes the importance of longterm funding alternatives necessary to address the backlog of 

water infrastructure projects that await financing in my district 

and districts throughout the country. 

That is why I and more than 30 of my colleagues are sponsoring 

H.R. 3145, bipartisan legislation to not only authorize the Clean 

Water SRFs, but that also authorizes several new forms of financing for these projects, including a loan guarantee program, direct 

loans, and a Clean Water Trust Fund. 

If we truly want to provide the $15 billion a year, we need to address our crumbling infrastructure needs and create jobs, and an 

‘‘all of the above’’ financing effort will be required. 

I know the Chairman is also interested in this issue, and I look 

forward to working with him on this effort. 

I also want to note that with respect to Superfund cleanup needs, 

the current Trust Fund is woefully inadequate to address the myriad of sites around the Nation that need to be remediated. 

In my district alone, there are four sites that are awaiting clean 

up, and we need to find the resources to address them. 

That is why I am an original co-sponsor of H.R. 1596 that would 

reinstate the Superfund tax and use the monies for their intended 

purposes, to pay for the clean up of Superfund sites. 

If we do not reinstate this fee on the businesses that create this 

pollution and the burden falls to the taxpayers and to the communities where the sites are located. 

I do not think that is fair and I do not think that makes sense. 

4 

Therefore, I strongly support H.R. 1596 and the administration’s 

proposal that the polluter pays principle be reaffirmed. 

Ms. Stoner and Mr. Stanislaus, you have a difficult job in protecting public health and the environment and ensuring clean and 

safe water for all Americans. 

That task is made all the more difficult in a constrained budgetary environment such that we have today. 

Some of my colleagues may present this committee with a false 

choice. We either have a robust economy or we protect public 

health and have a clean environment. They will argue you cannot 

do both. 

In my view, the health of the environment directly impacts the 

health of the economy and the two cannot be separated. 

With that, I look forward to hearing from you today, and I yield 

back the balance of my time. 

Thanks, Mr. Chairman. 

Mr. GIBBS. Mr. Bucshon, do you have an opening statement? 

Dr. BUCSHON. Thank you, Mr. Chairman. Just briefly. 

Looking over the budget, it is a welcome thing that the budget 

request from the President is actually less for the Environmental 

Protection Agency. 

The reason I believe that is because of the ongoing activism of 

the EPA under this President, we see more of that in the papers 

today as the proposed CO2 regulations that will affect coal fired 

power plants, that could not pass Congress even under total Democratic control, and now this EPA feels like they can unilaterally 

under the administration put these types of regulations in place 

against the will of the American people, against the elected officials 

in this country. 

The EPA also used billions of dollars in stimulus money, and in 

hearings previously in this Congress, I asked for an itemization of 

where the money went, and I receive a piece of paper with about 

five lines on it, with general categories. 

That is also concerning because taxpayers’ dollars were spent, in 

my view, for activism on the part of the EPA. 

We held a hearing here that showed that the EPA is setting 

water quality standards that are higher than a bottle of Evian or 

a bottle of Dasani water, things that cannot with current technology be met but are based on an ideological position and not on 

scientific fact. 

The budget request today that is less than last year is welcome, 

but my main concern coming from this Congress is where does the 

EPA stop, when will the EPA under this administration use scientific fact and not ideology. 

My fear is that probably is not going to happen. Taxpayer dollars 

that we do appropriate to the EPA are going to be continued to be 

used for the type of things that the administration wants, again, 

reminding everyone that most of these regulations could not pass 

Congress even under complete Democrat control. 

As a member of the Legislative Branch, I have serious concerns 

about that. I will be interested in hearing your comments. Thank 

you. I yield back. 

Mr. GIBBS. Mr. Rahall, do you have comments? 

5 

Mr. RAHALL. Thank you, Mr. Chairman. I commend you for calling today’s hearings and thank the witnesses for being with us. 

Some time ago, it had long been my belief that the EPA could 

be a positive force in the permitting process for surface coal mining 

in West Virginia. 

After years of battles in courtrooms that left coal miners and coal 

communities in a long tenuous limbo, this EPA had an opportunity 

to help achieve a center point that would provide for both energy 

development and environmental preservation. 

It has utterly failed. Instead, the EPA took an extra legal approach, choosing to step over the bounds of the law to promote an 

ideological agenda, and in so doing, to push opposing parties even 

further from the balance we have all sought for so long. 

Ironically, it is now the courts again that are stepping into the 

void to preserve the law. 

It was a Federal District Court, as you have referenced, Mr. 

Chairman, last year, which found that the EPA had overreached in 

implementing an enhanced coordinating and review process for 

consideration of 404 permits for coal mining in Appalachian States. 

The court ruled that EPA grabbed for itself authorities never 

granted to it in the Clean Water Act, and the court said in that 

process that EPA also breached the Administrative Procedure Act. 

This last week, another Federal District Court ruled that this 

EPA went beyond the law when it reached back into time to veto 

a permit for mining that had been issued years earlier by the Army 

Corps, without formal objection from the EPA at the time. 

The court ruled and I quote ‘‘That EPA exceeded its authority 

under the Clean Water Act by wrongfully taking for itself powers 

the law places in the Army Corps.’’ 

In fact, the court noted that the EPA’s interpretation of the law 

‘‘fails because it is illogical and impractical.’’ 

It is not just politicians and not just coal miners and coal executives. Now it is the courts who are saying with its treatment of coal 

mining in the Appalachian States, the EPA has twisted the law, 

circumvented the Congress, and trampled on the right of the people 

to know what their Government is doing. 

In America, no agency can hide its actions under some veil of secrecy, but the EPA sure has tried. 

In February, the EPA’s own Inspector General issued a report 

criticizing the Agency for its failure to keep a public record of its 

activities and decisions regarding coal mining permitting in Appalachia. 

As a result of its recordkeeping lapse, no one, not other agencies, 

not the States, not permitees, and not even EPA itself knows with 

any certainty the status of pending permits or what it takes to gain 

a permit. 

The IG suggested that the Agency may be in violation of the Federal Records Act, and went on to warn that because of its failure 

to keep records, the EPA cannot even discern whether a decision 

it claims to be making protects the environment or even acts actually resulting in environmental improvements. 

This Nation is ill-served by an Agency that is so driven by ideology that it cannot even follow the law. 

6 

It is disconcerting that we are here in this committee once again 

appealing to the EPA to work with the Congress, our State regulatory agencies, and other Federal agencies. 

It is absurd that for the sake of the environment, the economy 

and our national energy needs, we are calling on this Agency to 

simply adhere to the law. 

Thank you, Mr. Chairman. 

Mr. GIBBS. Thank you. Mr. Miller? 

Mr. MILLER OF CALIFORNIA. Thank you, Mr. Chairman. I am glad 

you held this hearing today. 

We need to examine the budget request for fiscal year 2013 for 

the Office of Water. It is important to discuss in light of the recent 

judicial decisions on the way in which the Agency, and in particular, the Office of Water, implements the statutory obligations. 

It is important because we know that the resources available to 

carry out these programs have become increasingly constrained as 

we try to reduce an annual deficit and address the national debt. 

I am particularly interested in learning how the Office of Water 

can implement its responsibilities that will ensure that the most 

talented individuals can lend their expertise to the process of developing and approving NPDES permits and other elements of the 

Clean Water Act. 

I note this is a concern because it appears that the Office of 

Water continues to rely on an antiquated framework on who can 

be nominated and selected to sit on the Regional Water Quality 

Board in my own State of California. 

That is why I introduced the Sunshine on Conflicts Act. Since enactment of the Clean Water Act, the Office of Water has enforced 

a regulation that denies any individual that receives significant income from an NPDES permit or holder or applicant from consideration or selection to sit on the Water Board. 

‘‘Significant income’’ is defined as 10 percent or more in a given 

year. In 1972, that Act might have been reasonable at that point 

in time, but since then, it has changed. 

Since 1972, the Act has evolved into a technically complex and 

hydroheaded regulatory program that requires a technical sophistication of well informed, experienced individuals. 

Unfortunately, the law and the regulation the Office of Water relies upon has not been amended or updated to take into account 

those changes. 

Today, we have a regulation program that presumes a conflict of 

interest based on one’s income. The important point I want to emphasize is this rule applies to the individual and their immediate 

family. 

In my own region, we have seen a lunacy of this standard. An 

elected city official with extensive expertise in the water quality 

policy was rejected in as an attempt to be appointed to the Regulatory Water Quality Board because of the income restriction. 

The reason cited was his wife received income from a permit 

holder in violation of the rule. 

The problem was the wife worked as an elementary school teacher. Her school district holds a general water storm permit and pays 

her an annual salary. That was the total reason the individual was 

disqualified, because she worked for a group that holds a permit. 

7 

Not only does this example scream credulity, it plainly illustrates 

the fact that we are denying qualified officials from sitting on important policymaking boards when there is no real or perceived 

conflict of interest. 

I am really interested to learn from the witnesses why the Agency has not taken aggressive action to remedy this clear violation in 

the step or direction you have taken in the past. 

The rules are vital. We should be careful to make sure there is 

not conflict of interest, but why can we not place the same standards we apply to judges or other elected officials instead of something like this? 

If I wanted to be on the Board and my wife was an elementary 

school teacher, that should not disqualify me from sitting on the 

Board. 

I am really interested to see why you have not changed those requirements and rules and if there is some way that kind of a rule 

can be overturned by the individual applicant. 

To this date, that individual was turned down solely because his 

wife was an elementary school teacher. 

I hope during the hearing you will address that, and I yield back 

the balance of my time. 

Mr. GIBBS. Thank you. Representative Napolitano? 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. Thank you to my 

friends in EPA. 

I was listening to some of the opening remarks. I am hearing 

that we want to throw the baby out with the bath water. We want 

to relax more regulations. We want to create more cleanup sites for 

the future generations to clean up. 

We want to endanger the public health by cutting back the funding for some of the tribal, the Clean Water Act, the Drinking Water 

Act, the Superfund, and then we do not go after the potential responsible parties. 

In California, we have the higher standards than most of the rest 

of the States that have made our State the cleanest and most attractive to business, et cetera. 

Yet, we are saying it is OK, we can deal with the resulting illnesses that come out of the contamination in the water and others. 

EPA does not really have to be going after those PRPs, the potential responsible parties. I disagree. 

I thank you, Nancy and Mathy, for testifying. You have protected 

disenfranchised communities, the tribes, and I understand you are 

reducing the tribes who always traditionally and historically have 

been underserved and less supported in our efforts to assist them 

in clean drinking water. 

I can remember being in the Subcommittee on Water and Power 

and having the Navajos come in with a drawing from the children 

on where the water came from. It was a water truck. That is irresponsible and that is intolerable. 

We need to ensure that the small underrepresented communities 

have the same access to safe, clean water and infrastructure investment options. 

We need to ensure protection of our clean water sources and the 

importance of working with our neighbors to protect water sources 

in communities along our international borders. 

8 

I include in that some of the ponds left by the fracking, the 

hydrofracking, the fact that those may not only endanger the 

aquifers but also the streams and rivers adjacent to communities 

that rely on that clean water that normally comes to them. 

We also thank you for the assistance in preventing the spread of 

invasive species, the quagga mussels, that are really costing our 

businesses and our water agencies millions upon millions of dollars 

to try to find out how to prevent them from gluing themselves onto 

the metals that prevent the water from going into the intake 

valves. 

We support the Superfund cleanup efforts. Mr. Stanislaus’ testimony discusses the Pemaco Superfund site in Maywood, which is 

a city that is not adjacent to me but it is within 20 minutes. 

It is a minority community, and the cleanup site, the effort put 

into it, has become an asset to the community. That is what we 

look forward to, being able to have park areas, involve the community in that effort and ensure they understand and have transparency in what really is affecting their community, and have the 

potential responsible party own up and be part of that effort. 

It is critical that we continue to protect and invest in environmental protection programs to ensure Americans have continued 

access to reliable safe and clean water sources. 

We cannot afford to let the regs relax in areas—I can understand 

there may be a little bit more of asserted efforts in some areas, but 

that should not preclude us from continuing to support EPA’s effort 

to provide our communities, all our communities, with safe, reliable 

drinking water, and enforcing those folks that think they can get 

away with it for the almighty dollar. 

Thank you, and I yield back. 

Mr. GIBBS. Thank you. I would like to welcome our two witnesses. They are both from the United States Environmental Protection Agency. 

Our first witness is Ms. Nancy Stoner. She is Acting Assistant 

Administrator for the Office of Water, and our second witness is 

Mr. Stanislaus, Assistant Administrator of the Office of Solid 

Waste and Emergency Response of the U.S. EPA. 

Welcome, Ms. Stoner. The floor is yours. 

TESTIMONY OF NANCY STONER, ACTING ASSISTANT ADMINISTRATOR, OFFICE OF WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY; AND MATHY STANISLAUS, ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Ms. STONER. Good morning, Chairman Gibbs, Ranking Member 

Bishop, and members of the subcommittee. It is nice to see all of 

you again. 

I am Nancy Stoner, Acting Assistant Administrator for the Office 

of Water at U.S. EPA. Thank you for the opportunity to speak 

about the President’s fiscal year 2013 budget request for EPA’s National Water Program. 

The President’s budget provides the resources necessary for EPA 

to continue our work in collaboration with States, municipalities, 

industry and the public, to ensure safe and clean water for all 

Americans. 

9 

As Administrator Jackson has testified, this budget focuses on 

our core mission and sets priorities to make the best use of available resources. 

Clean water is not only a resource and asset to be passed on to 

our children, it is also a necessary part of life. Clean water is essential to public health, drinking water supplies, recreation, quality 

of life, and the welfare of families and communities, whether in 

large cities, small towns, or rural America. 

Clean water is also vital to the U.S. economy, an impressive variety of American businesses depend on clean water supply, including energy generation, tourism, farming, development, fishing, 

manufacturing, food processing, and beverage production. 

The EPA’s request for the National Water Program is $3.41 billion, a 9-percent reduction from 2012 enacted levels. 

Our request reflects the kinds of tough economic choices facing 

American families every day, eliminating extras, trimming everywhere, and focusing on essentials. 

The cuts are significant, but we intend to work effectively with 

less to continue to improve public health, water quality, and environmental protections, on which American communities and businesses depend. 

The Clean Water and Drinking Water State Revolving Funds 

provide capitalization grants to States which when combined with 

State resources use the funds to make affordable loans to local 

communities to finance drinking water and wastewater systems 

and other water quality projects that protect public health and 

vital water resources. 

We are requesting a little more than $1.1 billion for the Clean 

Water SRF, and $850 million for the Drinking Water SRF, enabling States and tribes to begin approximately 500 clean water and 

approximately 400 drinking water projects nationally. 

EPA will work with States to target assistance to small and underserved communities with limited ability to repay loans, while 

maintaining State program integrity. 

This budget proposes to eliminate the Beach Grant Program, 

with a reduction of $9.9 million in 2013. While beach water monitoring continues to be important, we believe most State and local 

government programs have developed the technical expertise and 

procedures to continue beach monitoring without additional Federal support. 

This budget request includes $72.6 million for the Chesapeake 

Bay program. The budget provides States with an additional $14.4 

million in grants to make further progress on implementing the 

watershed implementation plans they developed to meet the Chesapeake Bay pollution reduction goals. 

In addition, EPA is requesting $300 million to continue robust 

funding for the Great Lakes restoration initiative, to reduce toxic 

substances, restore habitat, combat invasive species, and improve 

coastal health. 

Our request also includes $265.3 million for water pollution control grants. The EPA is requesting $15 million of the $26.9 million 

increase for States to strengthen their nutrient management efforts 

consistent with the Office of Water guidance issued in March 2011. 

10 

Nitrogen and phosphorus pollution causes algal blooms, dead 

zones, fish kills, and increased drinking water filtration expenses. 

We believe that these additional funds will help ensure that 

States’ clean water programs are effective in implementing their 

Clean Water Act responsibilities, protecting the environment, and 

supporting our economy. 

In conclusion, I would like to thank you, Mr. Chairman, and 

members of the subcommittee, for this opportunity to discuss the 

President’s 2013 budget request for EPA’s National Water Program. 

The President’s budget reflects the EPA’s ongoing efforts to carefully consider potential cost savings and reductions while continuing our commitment to core environmental and public health 

protections. 

Thank you again, and I will be happy to answer any questions 

you may have. 

Mr. GIBBS. Thank you. 

Mr. Stanislaus, the floor is yours. Welcome. 

Mr. STANISLAUS. Good morning, Chairman Gibbs, Ranking Member Bishop, and members of the subcommittee. 

I am Mathy Stanislaus, Assistant Administrator for the Office of 

Solid Waste and Emergency Response. 

Thank you for the opportunity to appear today to discuss EPA’s 

proposed budget for OSWER’s programs. 

I will summarize my statement but ask that my entire written 

statement be submitted for the record. 

EPA’s budget request focuses on fulfilling the Agency’s core mission of protecting public health and the environment. The budget 

request fully reflects the President’s commitment to reducing Government spending and finding cost savings in a responsible manner 

while supporting clean air, clean water, and clean land. 

To help clean up our communities, the President is proposing investments that clean up contamination and promote economic development and job creation. The President’s 2013 budget proposes $164.7 million for 

OSWER’s Brownfields Program. EPA’s Brownfields Program uses 

its funding to successfully leverage economic investments. On average, more than $18 of private and public investment is 

leveraged for every public dollar that is expended through EPA’s 

Brownfields Program. 

More than 75,000 jobs have been leveraged through Brownfields 

project funding since the inception of the Brownfields Program. 

In fiscal year 2013, Brownfields Program grantees are projected 

to assess more than 1,200 properties, clean up more than 120 properties, help create at least 5,000 cleanup and redevelopment jobs, 

and leverage more than $1.2 billion in cleanup and redevelopment 

funding. 

The Brownfields Program also provides funds for job training. 

EPA’s Job Training Program has sought to ensure that the economic benefits derived from Brownfields redevelopment remain 

with local residents. 

As of January 2012, approximately 10,275 individuals have completed training, and approximately 7,155 obtained employment in 

the environmental field. 

11 

These numbers indicate a cumulative placement rate of approximately 70 percent since the program was initiated. 

The fiscal year 2013 budget requests $1.176 billion for Superfund 

cleanup efforts across the country, which represents a $37 million 

reduction from the fiscal year 2012 enacted levels, and reflects the 

hard budget choices that are being made. 

Superfund Removal and Homeland Security Program funding 

levels are maintained with focused reductions associated with Superfund’s remedial program. 

We expect a reduction to the Superfund Remedial Program will 

result in no new EPA led construction project starts in fiscal year 

2013. 

EPA will balance the Superfund remedial pipeline by focusing on 

the completion of ongoing projects rather than new starts. 

We are committed to continuing the Superfund Program’s success in protecting human health and the environment and providing local communities the opportunity for economic development 

by cleaning up the Nation’s worst hazardous waste sites. 

For example, a January 2012 study completed by researchers at 

Duke University found localized benefits from the cleanup of 

Superfund sites across the country from the initiation of cleanup 

activities to the delisting of sites. 

Specifically, unoccupied housing within 3 miles of the site found 

its property values increasing from 18.6 percent to 24.5 percent 

after the delisting of a site from Superfund’s National Priorities 

List. 

Regarding our enforcement efforts, EPA has been particularly 

successful in leveraging appropriated funding through the use of 

responsible party settlements to establish site specific special accounts. 

Through the end of fiscal year 2011, EPA collected more than $4 

billion including interest in more than 1,000 site specific special accounts. 

Of this amount, EPA has dispersed or obligated $2.2 billion for 

site specific response actions and developed multiyear plans for 

nearly 100 percent of the remaining funds in the special accounts. 

In total, through fiscal year 2011, EPA has secured more than 

$36 billion in responsible party commitments for site clean up and 

reimbursement of past costs. 

In addition, EPA’s Emergency Response Program will continue to 

maintain its capability to respond to imminent threats to human 

health, including incidents of national significance. 

The EPA’s Chemical Accident and Oil Prevention Programs play 

an important role in assessing and reducing risk of chemical accidents and oil spills. 

EPA’s Risk Management Program works with the State and local 

prevention and preparedness programs to help protect communities 

from catastrophic releases of hazardous substances from facilities. 

The fiscal year 2013 budget request requests an additional $1.5 

million to increase inspection of high-risk facilities. 

With that, I will close, and look forward to responding to your 

questions. 

Mr. GIBBS. Thank you. I will start off with the first questions. 

12 

Ms. Stoner, in the budget, it appears when you talk about the 

cuts, we know there is a total cut, but it appears to me that there 

are more significant cuts to the States, like in the State Revolving 

Fund and other grant programs. 

Can you expound a little bit on what the cuts at the Federal level 

compare to? It appears the bulk of the cuts might be cuts to State 

monies. Is that correct? 

Ms. STONER. The increases are actually for State programs. The 

State grant programs under the 106 Program for the Clean Water 

Act, the State drinking water program, an increase in what is 

called ‘‘SDWIS,’’ which helps to create the data systems, the Chesapeake Bay Program, to help the implementation by the States of 

the watershed implementation plans, that is actually where we saw 

an increase. 

Mr. GIBBS. Let me just stop you there. The programs you just 

mentioned, for the Chesapeake and other programs you mentioned, 

those are more like earmarks, but the programs that the States administer are being cut, like the SRF? 

Ms. STONER. There are cuts that are proposed to the State Revolving Funds, that is correct, Mr. Chairman. 

I am talking about the programs that enable the States to run 

their programs. That is what the 106 Funds do under the Clean 

Water Act. That is what the Public Water System Program does 

under the Safe Drinking Water Act. We give that money to the 

States. They run their programs with those increased funds that 

we provide. 

Mr. GIBBS. How about 319? 

Ms. STONER. 319, I think, is flat. Let me just check. That is a 

very important program. It does hugely important work on the 

ground, particularly to reduce nutrients. 

We have sought no cut to that, I believe, and we are also working 

very closely with USDA to align the funding under that program 

with their conservation funds to make sure every dollar goes further. 

Mr. GIBBS. How about cuts at the Federal level, administrative 

level, and DC level? 

Ms. STONER. There are some cuts there. As I said, the increases 

are primarily to those State programs. 

Mr. GIBBS. OK. Moving on, recent court decisions withheld that 

the EPA acted unlawfully when engaging in enhanced coordination 

activities with Section 404 permits, and acted unlawfully when revoking an already issued 404 permit. I think you are well aware 

what that is. 

What is the Agency doing to change the culture of their unlawful 

behavior and repeated abuse of power after these court decisions 

issued recently? 

Ms. STONER. Both of those matters, of course, are in litigation 

and we will be discussing them and our approach moving forward 

with the Justice Department and Office of General Counsel, Mr. 

Chairman. 

Mr. GIBBS. We are not talking about changing our processes? You 

cannot appeal because it was actually a Supreme Court decision. 

13 

Ms. STONER. We have already eliminated the enhanced coordination procedures/process that we had working with the Army Corps 

of Engineers as a result of that decision. 

We are also discussing with the Justice Department—— 

Mr. GIBBS. What has happened to the permits that were hanging 

in limbo from the enhanced coordination process? 

Ms. STONER. Well, we have eliminated that process. We are continuing to review current permits under 404 with the Corps of Engineers under our statutory and regulatory authorities. 

Mr. GIBBS. Another concern of mine is there has been a lot of discussion about EPA essentially working around ‘‘navigatable waters’’ to change it to ‘‘waters of the United States.’’ I think that 

would also tie in a little bit with the connectivity study. 

I am wondering if you could share your thoughts on what EPA’s 

intention is with that issue, the connectivity study, versus ‘‘waters 

of the U.S.’’ versus ‘‘navigatable.’’ 

Ms. STONER. Yes, Mr. Chairman. The study to which you refer 

is one being done by the Office of Research and Development. It is 

not new research but rather gathering peer reviewed literature on 

the connections between water bodies, to understand the science 

better to inform our thinking. That is what that study is about. 

On the ‘‘waters of the U.S.,’’ as I believe you know, we put out 

a draft guidance for public comment last spring. We got about 

230,000 comments on that, about 90 percent of them were in favor 

of clarifying the scope of the Clean Water Act. 

Mr. GIBBS. Just to interrupt you there. My understanding is the 

first guidance went out as a proposal draft and what came out earlier this month, there was not much change. 

Did you really incorporate much of the 230,000 comments that 

were in the Federal Register? 

Ms. STONER. We reviewed very closely those comments and have 

made some proposed modifications to reflect what we heard. That 

document is currently in interagency review. 

Mr. GIBBS. I will probably come back on the next round for some 

specifics on that. 

Mr. Bishop? 

Mr. BISHOP. Thank you, Mr. Chairman. Thanks to both of you for 

your service and for your testimony. 

I want to focus in a little bit more on the SRF. This committee 

has had a series of hearings on the need to increase the amounts 

of money available from all sources to address approximately a 

$300 billion backlog in wastewater infrastructure projects over the 

span of our country. 

Because of our focus on the SRF and because of my particular 

interest in the SRF, I am worried about the President’s budget that 

would propose a $291 million cut in the Clean Water SRF and a 

$67 million cut in the Drinking Water SRF. All total, $360 million 

and some. 

We understand that the Federal Government—we are looking to 

reduce our expenditures in all areas. 

One of the things that we are talking about is taking a tool box 

approach. We are talking about different methods of financing. We 

are talking about a WIFIA approach. We are talking about a Clean 

Water Trust Fund. 

14 

The question to you, Ms. Stoner, is to what extent have you 

viewed both the Clean Water SRF as an essential tool in addressing wastewater infrastructure needs in the past and to what extent 

do you see it remaining an essential tool in addressing wastewater 

infrastructure needs? 

Ms. STONER. The Clean Water SRF has been a great tool that 

has provided wastewater services to communities across the United 

States, and has been very important to helping finance that in 

many communities, large and small, including some very small and 

disadvantaged communities that have difficulty in funding that 

work without the assistance of the lower interest rates in the SRF. 

It has been a very successful program. It is a very popular program. 

Mr. BISHOP. Would you agree it has been particularly helpful to 

small and medium sized communities? 

Ms. STONER. It has been very helpful to those. 

Mr. BISHOP. Thank you. One of the things I am worried about, 

this budget, as I said, is one that gives me great pause in certain 

areas, but I am worried, tomorrow we will be voting on Chairman 

Ryan’s budget. 

It does not specify EPA, but the function, Function 300, that 

EPA is under in the budget is cut by some 18.8 percent over a 5- 

year period. 

Added on top of that is the potential implication of the sequester, 

if we move to a sequester, that would add another 9 percent in 

cuts. 

If we move as Chairman Ryan’s budget proposes to turn off the 

sequester on defense and load all the sequester onto non-defense 

discretionary, that presumably would take that 9 percent and make 

it 18 percent. 

We could be looking at some pretty big cuts, on the order of 30 

to 40 percent, on EPA funding. 

How would the EPA accommodate that? I mean the mantra of 

this committee is ‘‘do more with less.’’ How much more would you 

be able to do with a 30-percent cut in funding? 

Ms. STONER. Well, obviously, it would be very difficult. I must 

say I was surprised a little bit to hear the opening statements in 

terms of ideology. 

I think what we are talking about here is something that is very 

popular with Americans from all political and religious backgrounds, all kinds of backgrounds, all geography, we are talking 

about protection of water resources for future generations. 

We are talking about having safe tap water that Americans can 

go anywhere in the U.S. and know they can drink it. 

This is actually something that has been a bipartisan issue historically, is a bipartisan issue out in the countryside where I visit. 

Americans everywhere love clean water. 

We need to support it and work to support it here together, 

working together in Washington. 

Mr. BISHOP. As you just said, that certainly reflects the view of 

my constituents on both sides of the aisle. 

I have a district that has water on three sides, and is enormously 

dependent on travel and tourism and seasonal homes as the foundation of our economy. 

15 

One of the reasons that our area is attractive is because of clean 

water. I would agree with you. 

Mr. Stanislaus, there is a backlog in Superfund site cleanups 

right now of somewhere between 25 and 35 sites. Is that correct? 

Mr. STANISLAUS. I believe that is correct. 

Mr. BISHOP. If we were to carry forward with a budget—the 

President’s budget proposes a $37 million cut, but $33 million of 

that $37 million is in the remediation portion of the budget. Big hit 

to the remediation portion. 

Again, same question to Ms. Stoner, if we were to carry forward 

with an 18.5-percent cut to Function 300, that would be evenly distributed? By the way, we do not know that. It is a reasonable assumption. 

Evenly distributed among the programs that are covered in 

Function 300 if we were to load on top of that either 9 percent sequester or 18 percent sequester, what would that do to the ability 

of the EPA to continue with the Superfund program, by how much 

would the backlog grow, we are at 25 to 35 now? Would we be able 

to address the backlog? Would more sites be added to the backlog? 

Mr. STANISLAUS. Clearly, any further cuts will result in an increase in the backlog. I cannot give you an exact number. 

With respect to the President’s proposed budget, we are recognizing in tough budget times that we will continue to do the work 

on existing sites, but beginning clean up of new EPA funded sites, 

we will not be able to do it with the fiscal year 2013 budget. Any 

further cuts would mean additions to the backlog. 

Mr. BISHOP. Thank you very much. I have exceeded my time. I 

yield back, Mr. Chairman. 

Mr. GIBBS. Mr. Bucshon? 

Dr. BUCSHON. Thank you, Mr. Chairman. 

Ms. Stoner, can you remind me how much stimulus money EPA 

received? Do you remember how much that was in 2009, I think 

it was? 

Ms. STONER. I think it was $6 billion. 

Dr. BUCSHON. $6 billion. Has that money all been used? Have 

you spent all the $6 billion that you were given through the stimulus program? 

Ms. STONER. Not all of it has been used yet because a lot of it 

funds construction projects that were begun but have not yet been 

completed. 

Dr. BUCSHON. If you would take that $6 billion in addition to 

your annual budget, let’s say over 10 years, that would be what, 

$600 million a year over 10 years? Approximately. 

Ms. STONER. Right. 

Dr. BUCSHON. If you added that number to 8.3445, that would 

make the budget really over the next 10 years that you are actually 

going to receive after the stimulus, let’s say over $9 billion, not actually the $8.3 billion, which would be a significant increase over 

what the budget was previously, say the budget in 2008, which I 

think was about $8.3 billion. 

Would you agree with that? 

Ms. STONER. I am assuming your math is correct, yes, Congressman. 

16 

Dr. BUCSHON. I guess my point is this, I am hearing today how 

this is dramatically going to decrease the ability of the EPA to have 

clean water and clean air across this country because of a $104.9 

million decrease from the enacted level. 

In actual fact, if you factor in stimulus money that was given to 

the EPA in 2009, I believe, overall, the EPA is flush with money 

compared to previous budgets in my view. Would you agree or disagree with that? 

Ms. STONER. Well, the cuts you are talking about are not the cuts 

that are in the President’s budget. 

We are not saying that the President’s budget would result in 

those severe consequences that you are reflecting. 

Dr. BUCSHON. Which cuts are you talking about? If it is not the 

ones in his budget proposal, his proposal proposes to decrease your 

budget by $104.9 million less than the enacted level in 2012. 

Ms. STONER. Right. That is correct. 

Dr. BUCSHON. OK. 

Ms. STONER. We are not saying that the President’s budget 

would—what we are saying the President’s budget does is focus on 

the priorities and ensuring that the dollars are spent as effectively 

as possible, and some tough cuts were made. 

We are not saying that those would have a dire impact. I thought 

that is what you—— 

Dr. BUCSHON. That was the impression I was getting from hearing some of the questioning. I would hope that every Federal agency is always using the taxpayer dollars as effectively and appropriately, and we would not have to rely on just when a President, 

regardless of which President’s budget comes out, but every agency 

is always using the taxpayer’s dollar as effectively and efficiently 

as we can. 

Ms. STONER. That is our goal. 

Dr. BUCSHON. Yes. The $6 billion, I asked a number of months 

ago where that money is being spent, and I received a piece of 

paper with about five itemized—do you have an itemization of how 

you spent an extra $6 billion, the specifics, and what projects are 

being funded and all that? 

If you do, I would like that information. 

Ms. STONER. We would be happy to provide additional information. 

Dr. BUCSHON. That is my main issue. When I hear the dire 

straits situation, about clean water and clean air, and then the 

American people do not really know the facts, that you also had an 

extra—you are saying $6 billion. My number was over $8 billion in 

stimulus money. 

I would argue that what you are trying to make it out to be is 

not correct, and that even though it appears, whether it is the Republicans in the House, whether Chairman Ryan’s budget comes 

out, what number they come out with, will result in any significant 

way impinging on the EPA’s ability to make sure all of us have 

clean water. 

By the way, I agree with your statement that everybody across 

political lines want clean water and clean air. 

17 

In the abstract, that is very true. Of course, I want that. I have 

four kids. I do not want them to turn on the faucet and have dirty 

water. 

On the other hand, you also have to recognize the fact that setting standards to the point where they are not attainable with current technological advances, whatever you want to call it, and 

wasting the taxpayers’ dollars trying to pursue an ideological position is also something that if I told people across the political spectrum, they would not agree with that either. 

I yield back. 

Mr. GIBBS. Mr. Rahall? 

Mr. RAHALL. Thank you, Mr. Chairman. Thank both of you for 

your testimony this morning. 

Ms. Stoner, what you just said earlier about everybody wanting 

clean water, as the gentleman from Indiana just referenced, certainly, that is a commendable goal, and we all want to see that. 

It is always the question of the proverbial pendulum swinging 

perhaps too far one way in the previous administration and now 

there is a perception that it is swinging too far the other way in 

this administration. 

We have to find the proper balance, in my opinion. We can have 

Clean Water. We can have safe drinking water for our children and 

our grandchildren. Yet, at the same time, we can have jobs. That 

is certainly the paramount concern of the constituency I represent, 

jobs. 

Indeed, when we passed SMCRA back in 1977, my first year in 

this body, my first Conference Committee upon which I sat, we had 

as our goal the dovetailing, the need to protect the environment 

and the need to provide jobs for our people. 

We struck the proper compromises and we were able to meet 

those twin goals, in my opinion, as established under SMCRA. 

I recognize that job creation is not particularly a jurisdiction of 

the EPA or a consideration of the EPA in decisions that you make. 

Job protection, I would think, should be some consideration. 

You can respond to that if you want. I want to get to a specific 

question. That is how many 404 permits has EPA given the go 

ahead on since the April 1, 2010, issuance of your conductivity 

guidance for coal mining in the Appalachian States? 

Ms. STONER. First of all, on the topic of jobs, we certainly view 

our work on surface coal mining to be directed at ensuring that discharges associated with surface coal mining activity protect public 

health and the environment, and that those are done in a way to 

allow the mining company to move forward with that activity and 

to achieve the goals of the Clean Water Act. That is our goal. 

Mr. RAHALL. Not job protection. 

Ms. STONER. Our goal is to ensure that the activities can go forward so that people can have those jobs and also have clean water. 

Of course, I have been many times to West Virginia, to the beautiful streams that you have there, and they are fabulous resources. 

Ensuring that people have those resources and jobs, that is our 

goal, absolutely. 

The number on the 404 permits is more than 110 permits have 

been issued since 2009, since the beginning of this administration. 

Mr. RAHALL. That is the number that has been submitted. 

18 

Ms. STONER. No, those are the ones issued by the Army Corps 

of Engineers in Appalachia. 

Mr. RAHALL. Could you submit that to the subcommittee, please? 

Ms. STONER. Yes, sir. 

Mr. RAHALL. Thank you. It has come to my attention that EPA 

is now reviewing a majority of coal mining NPDES permits in West 

Virginia. 

As you know, NPDES is an authority delegated to the State. 

Why is EPA now after all these years respecting delegated authority, now intervening in this area? 

Ms. STONER. We are working with the State of West Virginia on 

improving those permits to ensure that those activities move forward and the discharges associated with them are consistent with 

the requirements of the Clean Water Act. 

Mr. RAHALL. In consultation with the State of West Virginia? 

Ms. STONER. Yes, we work very closely in looking at those permits that you just referred to. We work with the State. My Region 

3 office, I think, has been making a lot of progress that they are 

very proud of, working with West Virginia to improve those permits. 

Mr. RAHALL. As you know in working with our State, we have 

worked very hard to try to strike this proper balance. We have 

tried very hard to work with the EPA over the years. 

It is not our intention to just bad mouth you at every turn of the 

road. We want to work with you. That is our goal in West Virginia, 

as long as our authority as a State is respected as well. 

That is something we established again going back to SMCRA, 

that we had minimum Federal guidelines so one State could not 

undercut another State, yet we allowed State authority where 

those minimum Federal guidelines were met to respect their authority. 

That is what I hope we can strike here as well. 

Ms. STONER. We agree. We are working closely in partnership 

with West Virginia on those permits. 

Mr. RAHALL. Thank you. Thank you, Mr. Chairman. 

Mr. GIBBS. Just for a quick clarification, did you say 110 permits 

had been issued? 

Ms. STONER. Yes, sir. For surface coal mining or coal mining operations in Appalachia since 2009, yes, sir. 

Mr. GIBBS. Yesterday Secretary Darcy, Secretary of Civil Works 

of the Corps, testified 80. So there is just a little difference in numbers. They testified there was 80. 

Ms. STONER. We will work with them to reconcile our records. 

Mr. GIBBS. OK. Thank you. 

Mr. Crawford. 

Mr. CRAWFORD. Thank you, Mr. Chairman. 

I just want to direct my question to Mr. Stanislaus real quickly. 

This has to do with the EPA’s Spill Containment Compliance and 

Countermeasure Program. 

I understand that the EPA’s final rule was delayed last year 

until May of 2013. Does your 2013 budget request account for the 

costs associated with implementing the SPCC Program on farms? 

Mr. STANISLAUS. Well, yes. Clearly, as part of the budget it incorporates the series of activities affecting spill prevention and conVerDate Aug 31 2005 15:21 Aug 23, 2013 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\3-28-1~1\73532.TXT JEAN
19 

tainment countermeasures, which as you know the reason for the 

delay in the compliance date is because we heard from lots of representatives from the farming industry who said that they needed 

that additional time. So we granted that additional time. 

We have also met with a number of bureaus and trade associations in terms of doing targeted outreach. We are in the middle of 

doing that. We are also in the middle of scheduling a followup 

meeting with them in the next few weeks. 

Mr. CRAWFORD. OK. Is there any chance that you might consider 

a further delay until an even later date than May 2013? 

Mr. STANISLAUS. No. I mean, that date was selected to give essentially two growing seasons of opportunity to do the outreach and 

for the farms to prepare the spill prevention and countermeasure 

plan. And just so that I am clear, for 90 percent of the farms, 95 

percent of the farms, it merely means identifying a plan and keeping it at the facility itself. So there is no submission to EPA. 

Mr. CRAWFORD. OK. As I understand it, the final SPCC rule required farmers with more than 1,320 gallons of oil or gas storage 

to comply with the regulations; costs tens of thousands of dollars; 

and would require the procurement of professional engineers. 

The 1,320 gallon threshold would include most farms. Does EPA 

have any data on farm spillage that justifies such a low exemption 

amount? 

Mr. STANISLAUS. I can provide you that data. And just to be clear 

with respect to the use of professional engineers, only 5 percent of 

farms, because of their size, would require professional engineers. 

The remainder do not require a professional engineer. 

Mr. CRAWFORD. OK. I understand historically the facility or entity reporting a spill to the National Response Center is not required 

to identify that facility as a farm. So the EPA would not have such 

data available. In fact, a 2005 USDA document states that over 99 

percent of the farmers surveyed had not experienced a fuel or oil 

spill in excess of 1,320 gallons. 

Given these facts and your response, I am still trying to wrap my 

head around what kind of methodology the EPA uses to come up 

with such an unreasonable number. 

Mr. STANISLAUS. Well, again, I will get back to you in terms of 

the data. The thresholds are really based on the size of the vessel 

which would cause a release, which would impact, among other 

things, waterways of the United States. 

[Environmental Protection Agency insert for the record follows:] 

The 1,320 gallon threshold quantity, which currently applies to all facilities, was promulgated in the original Spill 

Prevention, Control and Countermeasure (SPCC) rule in 

1974. The Federal Water Pollution Control Act specifies 

there shall be no oil discharges to waters of the United 

States (U.S.); therefore, the threshold quantity established 

was set at an amount which would help prevent spills 

harmful to waters of the U.S., but not present too great a 

regulatory burden. The threshold amount was greater than 

the volume of two of the largest typical home heating oil 

tanks in use at that time. SPCC applicability is not based 

on a facility’s spill history; rather, it addresses the hazard 

20 

associated with the storage of oil and the potential for 

harm to the aquatic environment in U.S. waters if even a 

small amount of oil is discharged. 

Oil has been spilled into U.S. waters from facilities in 

every business sector covered by the SPCC rule, including 

farms. The National Response Center (NRC) annually receives more than 20,000 reports of oil spills from a wide 

range of sectors. However, specific oil spill data for any one 

sector is not readily available using the NRC reports because they are intended to determine the need for immediate Federal response action and not for statistical analysis of spill frequency in any one particular sector. 

Bulk containers holding oil at a farm are no different than 

the bulk containers holding oil at any other type of facility. 

These containers are often used to provide fuel for farm 

vehicles and they operate the same as containers for vehicle fueling at terminals or construction sites. Consequently, the basic SPCC requirements for a bulk container at a farm are identical to those at other facilities; 

e.g., provide secondary containment and be ready to respond to ensure spilled oil does not reach U.S. waterways. 

However, EPA has recognized there are certain circumstances unique to farms. In the past several years, 

EPA has amended the SPCC requirements to streamline 

and reduce the applicability of, and compliance burden for 

farmers, such as: 

• An exemption for all heating oil tanks used for single 

family residences (e.g., the farmer’s home); 

• An exemption for application and mix containers holding 

pesticide adjuvant oils; 

• A flexible definition of facility whereby oil storage 

containers on separate land tracts at a farm do not need 

to be aggregated toward the threshold quantity; 

• An exemption for most milk and milk product containers; 

and 

• A clarification on permanent bulk container closures and 

nurse tanks specifically written to address farm 

operations. 

Finally, EPA simplified the rule requirements for facilities 

with smaller oil storage (such as farms) to allow self-certification of their SPCC Plans, and in some cases, to fill 

out a standard template that serves as the Plan. 

Mr. CRAWFORD. OK. I understand 10,000 gallons is a definition 

that defines a small farmer. Do you think a 10,000 gallon threshold 

is a more reasonable approach than 1,320? 

And further, does the EPA have the capacity within its 2013 

budget request to regulate every farm whose storage exceeds 1,320 

gallons? 

Mr. STANISLAUS. With respect to the thresholds, our thresholds 

are really based on, again, the size of a tank from which a release 

21 

could impact the environment and waterway. So it is based on our 

evaluation of that. 

I am sorry. Your second question was the level of outreach? 

Mr. CRAWFORD. Yes. I guess my question is if we raise that level 

to 10,000 gallons, which is actually the definition of a small farm, 

10,000 gallons of fuel storage, would the EPA’s budget request be 

smaller to reflect that if the program had a higher exemption level 

for farms? 

Mr. STANISLAUS. Well, clearly, farms is one of the various sectors 

that we are going to be conducting outreach to. Spill prevention, 

the SPCC Program is primarily a self-implementing program. So it 

is primarily for the regulated entities to develop plans, and we are 

all going to be doing outreach to various sectors to make sure that 

they understand their requirements. 

The agriculture industry has asked for special outreach. Given 

the seasonal nature of that, we are in the midst of doing that. 

Mr. CRAWFORD. OK. Thank you. 

And I thank the chairman for his flexibility and yield back. 

Mr. GIBBS. Mr. Miller, questions? 

Mr. MILLER OF CALIFORNIA. Yes. Thank you, Mr. Chairman. 

You know, I do like your comment on clean water and clean air. 

We all support that. I mean that is a given. I think it is how we 

go about doing it in many cases that causes some of us some problems. 

I represent between San Bernardino County and Orange County, 

and they have done some of the best work in the Nation, getting 

that water back on the aquifer. I mean, Prado Dam is right at the 

edge of San Bernardino and Orange County, and we provide water 

for about 2.8 million people from there. When water gets to that 

dam, it never gets to the ocean. 

We have got huge chloride problems, you know, in San 

Bernardino County above that we are trying to deal with, and I 

guess one of the problems we are having is on discharge. The housing industry has been devastated in the country, and the amount 

of water that has got to be retained and detained on site because 

of regulations placed, you know, on them, and you wonder if there 

is really a true benefit based on the cost and the impact on the private sector on some of the regulations. 

I applaud you in many of the areas we go to and you try to make 

sure that the rules are in place and they are clearly defined where, 

you know, we can make sure the water is clean. Nobody wants 

water running off a copper mine, you know, into the channels and 

ending up being in the water supply. That is a real problem, and 

I know members of this committee are concerned about areas they 

represent in coal and those types of things. 

I represent a lot of dairies, and that has been a real problem over 

the years with detention on site and when you have huge 

downpours and waters running onto a poor farmer’s property and 

causing a discharge. I have had farmers actually fined by EPA for 

something that was just actually a flood control district problem 

rather than their problem. 

But we talked earlier in my comments about how we deal with 

getting Water Quality Authority personnel to be able to apply, and 

I think it is an antiquated procedure used and a conflict of interest. 

22 

Have you started to look at any updating on that and becoming 

more realistic? 

I am not trying to get the Agency to say we should not have conflict of interest rules because we clearly should, but when you have 

a conflict on a Water Quality Authority that is far more stringent 

than on judge or other elected officials, it seems like we need to update that. 

Could you kind of respond on that? 

Ms. STONER. Yes. That actually is an issue I am familiar with, 

and we are looking at that now in a proposal that we have that 

is in discussion in interagency review. 

Mr. MILLER OF CALIFORNIA. My previous statement was not an 

attack. It was just to give you an example. We just experienced in 

our area where an elected official’s wife is actually an elementary 

school teacher, and because the school district holds a permit, that 

individual who was really qualified could not be appointed to the 

Water Quality Authority. 

Well, give me some idea of what you envision in developing an 

alternative in the future and some type of timeframe on that. Do 

you have any idea? 

Ms. STONER. Well, at this point we are just looking at the issue 

and figuring out what we can do to address it, but we are aware 

of it, and we are giving it consideration right now. 

Mr. MILLER OF CALIFORNIA. Would you have somebody respond 

in writing to me when you have come to some conclusion on what 

you think could be done so we know where you are going? 

Ms. STONER. I think there will be something for the public that 

we could provide to you. Yes, I appreciate that. 

And I did want to comment on the waste water reuse point that 

you made earlier. The area of the country that you represent really 

is leading efforts on that, and I think it is something that more 

communities will be doing, finding that waste water and storm 

water to be a resource to add to and augment the water supplies, 

and that that can save energy and save money and is a great thing 

to do. 

So we appreciate the innovation that is occurring in your district 

on that. 

Mr. MILLER OF CALIFORNIA. We have just replaced a brine line 

out there that was absolutely necessary to deal with the problems. 

But the source of, I guess, discharges you would have to apply it. 

The way it is being applied to the housing industry today, it seems 

like a little heavy handed. I mean, I look at all of the years I have 

watched houses being built, and they are built throughout this 

country and those requirements have been replaced. Now they are 

requiring in many cases on-site detention, which makes it very difficult in a lot of cases to apply to a project. It is not cost effective. 

But I am not certain that it is really creating that much of a benefit. Has that really been looked into? 

Ms. STONER. We are definitely looking at the benefits associated 

with those kinds of approaches. The National Research Council has 

urged us to do that, to look at ways of addressing pollution loading 

and flooding, as you mentioned, augmenting water supplies, other 

ways of addressing the storm water in a way that provides multiple 

benefits for communities and is cost effective. 

23 

Mr. MILLER OF CALIFORNIA. It seems like we do have some monsters out there that have discharge problems and truly contaminate, and then we have these little ants that we are adding to it, 

like the development projects, those types of things. And it just 

seems like the costs associated with that are just excessive based 

on the benefit of the actual yield. 

So I would hope you would really look at that in a fair perspective and say is there really a benefit to what we are doing based 

on the costs associated with those sources that truly, truly pollute 

our water systems and that we do need to look at. I mean, if you 

could do that, I would appreciate that. 

Ms. STONER. Yes. We certainly will be looking at that, and that 

is another area where there is lots of innovation. Lots of developers 

are figuring out how to achieve better water protection and also 

better profits for them in the developments that they put together. 

So we are talking closely with them and those who can inform us. 

Mr. MILLER OF CALIFORNIA. Profits are not my concern. It is the 

cost associated with is there a true benefit. 

Thank you. I yield back. 

Ms. STONER. Thank you. 

Mr. GIBBS. Mr. Denham. 

Mr. DENHAM. Thank you, Mr. Chairman. 

Ms. Stoner, we have been talking a lot on this committee about 

flexibility of current regulations, and as we go forward and pose 

new regulations, I want to make sure that we continue to have that 

same type of discussion on flexibility. 

In California, obviously we have the strongest environmental policy with CEQA. In this committee we have been talking about 

NEPA regulations and whether or not you go through the same 

regulatory process twice or whether or not there are some opportunities to create some efficiencies by combining efforts. 

I think the same thing could be said here. The State of California 

already has a regulatory framework in place for 316(b) which allows for a site specific approach for impingement. So would EPA 

not support providing States the flexibility to make these important permitting decisions given their longstanding expertise with 

these unique facilities? 

Ms. STONER. Our current proposal does have a lot of flexibility 

in it with respect to the cooling water intakes, the 316(b) that you 

are talking about, particularly with respect to the entrainment. We 

are working right now and it is in interagency review a Notice of 

Data Availability that would offer some alternatives on impingement as well. 

Mr. DENHAM. And when evaluating the cost-benefit ratios associated with the technology requirements of the rule, do you consider 

site specific external factors, such as ability to comply with regulations on reliability? 

Ms. STONER. Again, the current proposal talks about looking at 

those site specific factors with respect to entrainment. That is already in there for the decisions that would be made at the State 

level if that proposal were finalized. 

Mr. DENHAM. I thank you. No further questions. 

Mr. GIBBS. Mr. Shuster. 

24 

Mr. SHUSTER. My line of questioning goes along the same line 

that Mr. Denham was talking about, and I am not sure I quite understand your answer. The closed cycle cooling towers, companies 

presently are installing them and have installed them, and I believe the EPA agrees that it is the best technology available to minimize the environmental impacts. 

Ms. STONER. That is correct. 

Mr. SHUSTER. Yet you are also asking EPA’s proposed required 

facilities to spend hundreds of millions of dollars to satisfy additional impingement requirements; is that correct? 

Ms. STONER. Closed cycle cooling itself addresses the impingement. So our position in the proposal that we put out is that closed 

cycle cooling is the best technology, but not available everywhere, 

but where there is closed cycle cooling being used, that addresses 

impingement. 

Mr. SHUSTER. So you are going to continue to require them to invest additional dollars to deal with the impingement issue? 

Ms. STONER. No, not facilities that have closed cycle cooling. The 

issue that we are seeking to put out additional options on with respect to impingement is for facilities that do not have closed cycle 

cooling, and also impinge the fish. So we are putting out additional 

information on that issue. 

Mr. SHUSTER. So that I am clear, if you have a cooling tower, you 

are not going to be required to spend additional monies to satisfy 

your proposal. 

Ms. STONER. Right. Closed cycle cooling addresses impingement, 

yes, sir. 

Mr. SHUSTER. All right. Thank you very much. 

Mr. GIBBS. Mr. Lankford. 

Mr. LANKFORD. Let’s keep going on the 316(b) conversation, trying to get some additional clarity. Finalizing the rule by July 27, 

are we still on track for that? 

Ms. STONER. We do need to get that Notice of Data Availability 

out in order to meet that deadline. 

Mr. LANKFORD. That was the question. 

Ms. STONER. But we are working toward that deadline, yes, sir. 

Mr. LANKFORD. When that comes, will there be a comment period 

after that? 

Ms. STONER. Yes. 

Mr. LANKFORD. OK. So we have got hopefully by July 27th there 

will be the Notice of Data Availability. There is a comment period, 

and then it is going to come out. 

Can I ask a clarification on just authority in an odd sense? 

Where does EPA derive the authority to affect fish impingement on 

the screens? 

Ms. STONER. Three, sixteen (b) of the Clean Water Act. 

Mr. LANKFORD. Right. I understand, but it is not dealing with a 

clean water issue. When I go through 316(b) and look at it, dealing 

with a minnow dying next to a power plant, it seems a stretch to 

me in that based on what I am reading. Am I missing something 

on that? 

Ms. STONER. I think it is pretty clear that 316(b) applies to it. 

I am sorry that I do not have the provision in front of me right 

now. 

25 

Mr. LANKFORD. Here is my issue. Fish and wildlife I can understand. One of the lakes in Oklahoma where we have this particular 

power plant sitting next to it, the lake was built by the power 

plant. It is a great fishing lake. It is very involved. 

I have been to that screen and looked at it. I have seen the data 

of the fish that are impinged on it. The fish that are being impinged in this particular lake, because of the design of it, are very, 

very small. They are minnows. They are fishing minnows basically 

on the bottom of the food chain there. I have a difficult time finding 

where it affects the clean water availability based on the fact that 

minnows die in a very large lake, and I think that is where I am 

reaching out into. 

Do you have a perspective on that? Fish and Wildlife, while I understand they might have a concern on that, though you could restock minnows back into a lake and it is not going to affect the life 

cycle there in the lake, I’m trying to figure out how it affects clean 

water. 

Ms. STONER. I do not think the provision has a requirement that 

water availability is related to this. This is actually passed by Congress to address the issue of impingement and entrainment. That 

is my understanding. 

Mr. LANKFORD. OK. But there is no restriction as far as the number there. For instance, a new threshold has been set, and I am 

trying to figure out the arbitrary nature of how many fish can die 

on it. So the new proposal that I have seen basically decreases the 

size of the mesh there and says you have got to go from threeeighths of an inch into a much smaller mesh, correct? 

Ms. STONER. Meshes are part of the proposal, yes, sir. 

Mr. LANKFORD. Correct. So a much smaller mesh on it. So you 

have fewer number of fish. So let’s say there are 5,000 fish a year 

die on a three-eighths inch. Now you are going to reduce it down. 

Maybe there will only be 1,000. Is that a better number? 

How is EPA deciding how many fish is the appropriate number 

to be impinged on each site? 

Ms. STONER. The requirement of the statute is to apply BTA, 

which is the best technology available. That is the standard that 

we are applying. 

Mr. LANKFORD. According to what cost-to-benefit ratio? 

Ms. STONER. It is available technology. So you look at how well 

it works. Is it available everywhere? And cost issues, as I mentioned earlier are among the factors that can be considered by 

States in determining what to do for a particular plant under the 

entrainment proposed standard that the Agency has put out for 

public comment. 

Mr. LANKFORD. So best technology available on it, let’s say there 

is a 3⁄8-inch mesh on the screen. They look at it and they say, ‘‘OK. 

There is someone out there that manufactures one that is a quarter 

inch.’’ So several million dollars, let’s say now we have taken it 

down to 5,000 fish a year that died on this are the minnows. So 

now we are at 3,500 fish. 

Five years from now they say, ‘‘You know what? Someone has a 

slightly smaller mesh that is going to actually reduce it by another 

50 fish a year that die on that.’’ 

26 

What I am trying to look for is it seems to be an arbitrary standard of saying every time someone invents some new technology to 

go to a power plant and say, ‘‘OK. Now you have to do this,’’ which 

then passes on to ratepayers and we see no real difference in the 

environment. We have now reduced the number of minnows that 

have been impinged, which minnows proliferate in a lake, and I am 

trying to figure out where does this come from. 

Why are we taking this on with the rising cost of electricity that 

we are also trying to pursue this? To what benefit are we trying 

to achieve? 

Ms. STONER. Three, sixteen (b) of the Clean Water Act mandates 

the use of technology based standards for cooling water intakes to 

minimize adverse environmental impact. So what we are doing is 

applying the law. 

Mr. LANKFORD. Right. That is what I am trying to get at. What 

is the adverse environmental impact? 

Ms. STONER. Loss of fish and other creatures that are impinged 

or entrained in the cooling water structures. 

Mr. LANKFORD. OK. So if a company came out and said, ‘‘5,000 

minnows died on this. I am going to release 5,000 minnows a year 

back into the lake,’’ would that solve the problem? 

We have now solved an adverse environmental impact on it. That 

is what I am trying to say. There seems to be no scientific evidence 

that there is an adverse environmental impact in this, only a preference that we want to protect 5,000 minnows. 

Ms. STONER. Well, there is science about the data on fish loss associated with these kinds of structures, and so what we are doing 

is evaluating the best technologies available to address this problem as we were directed to do by Congress. 

Mr. LANKFORD. Should there be the possibility of the cheapest 

technology that accomplishes the purpose? Because if there are 

5,000 minnows die and we say, ‘‘OK. That is a problem that there 

have been 5,000 minnows in a giant lake that have died,’’ restock 

5,000 minnows a year and clean your filter. That seems to be as 

efficient, but it is not going to cost millions and millions of dollars 

to change out screens and dramatically increase the cost to the 

ratepayer. 

Ms. STONER. We have also had some court decisions that have 

limited our ability to consider the kind of approach that you are 

talking about. 

Mr. LANKFORD. And what role did the EPA have in conversation 

with the outside entities for those court decisions? Were those settled or did those go through the entire process of litigation? 

Ms. STONER. I am talking about a ruling by the court. 

Mr. LANKFORD. Were those a sue and settle situation where EPA 

was involved in the outside litigant as well? 

Ms. STONER. Where there is a settlement there usually is not a 

court decision. I am talking about a court decision, not a settlement. 

Mr. LANKFORD. OK. My time has well expired. I yield back. 

Mr. GIBBS. Mrs. Capito. 

Mrs. CAPITO. Thank you, Mr. Chairman. Thank you. 

I wanted to ask and dig a little deeper on my colleague from 

West Virginia’s questioning on the enhanced coordination and the 

27 

404 permits. As you know, and I think I have questioned you on 

this topic before on the jobs issue related to decisions that are 

made and what kind of considerations, well, I feel EPA should take 

into consideration, but what they are actually doing, and understanding that your primary goal, of course, is clean water, which 

we all appreciate and strive for. 

I would like to know in the budget, and so subsequent conversations after I have talked with you and actually the President questioned him; we had subsequent conversations with EPA, leading 

me to believe that at certain thresholds—I think it was $100 million projects that come before the EPA in terms of permitting—that 

job loss or job preservation is actually taken into consideration and 

calculated, although I have never seen a calculation. 

I would like to know what kind of resources in this budget are 

devoted to that from the EPA budget, devoted to looking at the economic impacts of the decisions that are being made. 

Ms. STONER. We look at the economic impacts of every rule that 

we do. The nationwide rules that are done out of my office, we do 

an economic analysis associated with every one of those pursuant 

to an Executive order by the President. 

Mrs. CAPITO. And is that quantified in terms of actual job loss 

preservation or jobs gained? 

Ms. STONER. It is economic impact. 

Mrs. CAPITO. So that is a no. It is not quantified by job loss. Specifically, like if this job goes forward, 600 new jobs would be. You 

do not quantify it like that, correct? 

Ms. STONER. So, for example, for effluent guidelines we look at 

economic achievability. So one of the things we would take into account would be whether some portion of the businesses would close. 

So it looks at that issue with respect to effluent guidelines in particular. 

Mrs. CAPITO. Right. Well, I am asking specifically though. Then 

I know you look at it as an impact, but then is it quantified by the 

number of actual individuals that would be affected by that? 

Ms. STONER. Economic achievability is a little more general concept. 

Mrs. CAPITO. OK, OK. So then you mentioned that the enhanced 

coordination is no longer going on pursuant to the court judgment. 

So then would the assumption be that the permitting process that 

is moving forward would be what was occurring before the enhanced coordination was issued in 2010? 

Ms. STONER. That is correct. 

Mrs. CAPITO. OK. So that would be where the States and the 

Corps and the EPA, where the Corps decision is upheld and moved 

forward. That is correct? 

Ms. STONER. EPA comments on Corps permits under the 404 

process. States have a role also with the 401 water quality certifications. 

Mrs. CAPITO. Right. 

Ms. STONER. Under 402, at least in Appalachia, those are all 

issued by the States, and we have a commenting role with respect 

to those as well. 

Mrs. CAPITO. OK. Let me ask you a question on the difference 

between guidance and regulations because I know you have been 

28 

issuing a lot of guidance. Why does the EPA choose to issue guidance instead of going into formal rulemaking procedures? 

Ms. STONER. It varies by the topic and the circumstance. Often 

we try to do it because we feel like there is a need for greater clarity out there, something that the regulations address, but we feel 

like providing some additional detail to help individuals know how 

to comply and ensure that they have the permits that are needed, 

for example; that it can help to do that kind of thing. 

Mrs. CAPITO. Can the guidance be litigated? I mean, can somebody sue the EPA because they feel the guidance is faulty? 

Ms. STONER. We do have such suits. Yes, we do. 

Mrs. CAPITO. You do. So it is not an evasion of the legal system 

to go for guidance as opposed to a formal rulemaking? 

Ms. STONER. No, it is part of the administrative procedures. 

Mrs. CAPITO. Is it a quicker process when you move to guidance? 

Ms. STONER. Often it is. We have been putting a number of our 

guidances out for public comment to ensure that we have good 

input into those even though they are guidances. That is not required, but we have been doing it. 

Mrs. CAPITO. Is guidance optional? 

Ms. STONER. Yes, it is. 

Mrs. CAPITO. So there is no fining or penalties associated if you 

don’t follow the guidance? 

Ms. STONER. Guidance is recommendations. So it is recommendations and clarifications to help the regulated community, our State 

partners, local entities, and so forth understand what the law is. 

The law is contained in the statute and the regulations. 

Mrs. CAPITO. Thank you. Thank you. 

Mr. GIBBS. Before I move on to the next question of Mr. 

Cravaack, I want to clarify, Ms. Stoner. I do not believe that guidance is defined in the Administrative Procedures Act. Did you 

misspeak there? 

Ms. STONER. I did not mean necessarily it was in the statute, but 

there is lots of case law on guidance as an element of the administrative—I meant administrative process, that there is lots of case 

law about it. There are lots of guidances that have been upheld. It 

is not subject to the requirements of the Administrative Procedures 

Act, and you are right about that. 

Mr. GIBBS. OK. Mr. Cravaack. 

Mr. CRAVAACK. Thank you, Mr. Chairman, and thank you for 

being here today. 

But do you realize that the guidance associated with what the 

EPA puts out has economic ramifications associated with it? You 

realize that, do you not? 

Ms. STONER. It depends on the guidance. 

Mr. CRAVAACK. OK. I will tell you that it does, especially in the 

timber industry. When EPA starts putting out a guidance, there is 

pressure that is placed upon companies or logging firms from outside sources, environmentalists that say, ‘‘You had better start 

complying with this guidance or we are going to come after you.’’ 

So be very careful when you issue out guidance because those 

guidances become de facto mandates. 

29 

I have a question for you, Ms. Stoner. How much is budgeted for 

your legal defense? How much do you have budgeted for your legal 

defense? 

Ms. STONER. Yes. I do not know the answer to that question. We 

could attempt to figure out an answer to that question and get 

back to you. 

Mr. CRAVAACK. OK. Let me ask you a question. In your budgeting process, you budget quite a bit for grants, do you not? 

Ms. STONER. Yes, we do, particularly grants to State entities that 

work with us in partnership to implement the Clean Water Act and 

the Safe Drinking Water Act. 

Mr. CRAVAACK. OK. When the EPA gets sued, do you pay for the 

legal defense of the organizations that sue the EPA? 

Ms. STONER. It depends on what happens in the suit. The Clean 

Water Act does have provisions that allow attorney’s fees to be collected by those who win in court. 

Mr. CRAVAACK. That win in court. OK. What about giving grants 

to institutions that have a repetitive nature of suing the EPA? 

Ms. STONER. I am not aware of grants that go to entities that sue 

the EPA. 

Mr. CRAVAACK. Have you looked? 

Ms. STONER. I would say that I have not looked at every grant, 

but most of them go to State entities or entities that provide technical assistance or other kinds of support for the Clean Water and 

Safe Drinking Water Act Programs. I am not aware of grants that 

are funding litigation. 

Now, as I said, attorney’s fees sometimes are paid to entities that 

have sued the EPA successfully. 

Mr. CRAVAACK. OK. You know, we have a tremendous opportunity in the Eighth District of Minnesota. We sit on the second 

richest precious metals in the world in the Eighth District of Minnesota, and we have a couple different companies who are very interested in getting those precious metals out of the earth that we 

need. They go in everything from our cell phones to our computers, 

to the weaponry of the United States. We have to have these precious metals whether we import them or we actually extract them 

domestically. 

My question is I am looking at this long process with this one 

entity within the Eighth District of Minnesota. It has taken well 

over 6 years now, $35 million. They have already had one EIS. It 

seems it did not meet the standard, and it seemed like basically 

the problem was the agencies, Federal and State, were not talking 

well with one another and telling this entity what to do. 

What are you doing to try to ensure that you bring a cooperative 

agency? I am an airline pilot. One of the worst things you could 

hear is the FAA come in the cockpit and say, ‘‘Hi. I am from the 

FAA. I am here to help.’’ 

You know, we are finding that with the EPA as well. What are 

you doing to create a partnership with businesses to try to alleviate 

issues before they become issues? 

Like we have just had another delay in this process, and it keeps 

on pushing out and pushing out to a point where it is almost becoming a political issue more than it is becoming an issue of fact. 

30 

So I am asking you, Ms. Stoner: what are you doing as the head, 

as the lead to ensure that your agencies are working correctly and 

expeditiously with business so that they can do the right thing, but 

let’s get it done? 

Ms. STONER. We have regular meetings with businesses of many 

different kinds in my office, including regular outreach to small 

businesses, and a lot of the issues that we talk about are how to 

ensure that requirements are clear, that they are well understood, 

that businesses can meet them and achieve whatever the goal is 

of their business as well. And we have those regular engagements. 

We have an office that actually does this, along with all the program offices like Mathy’s and mine. 

Mr. CRAVAACK. Well, I would appreciate very much if you would 

take interest in this because, quite frankly, we have a great opportunity here. We are going to do the right thing, but we just need 

to know the right thing to do, and to move it on as expeditiously 

as possible because this is a national security issue in the aspect 

of harvesting these precious metals that we all need, and it is also 

a jobs issue as well. 

So with that I am over my time. I thank you for your time, and 

I yield back. 

Mr. GIBBS. Thank you. 

Mr. Ribble. 

Mr. RIBBLE. Thank you, Mr. Chairman. Ms. Stoner, thank you 

for being here today. 

I want to go back to the issue of impingement and power plant 

cooling systems. Are you familiar Executive Order 13–563? 

Ms. STONER. I am not sure which one that is. If you could remind 

me I would appreciate it. 

Mr. RIBBLE. The President’s Executive order deals with basing 

regulatory approaches and freedom of choice for the public. 

The President has been fairly clear that he wants to make sure 

that the cost-benefit analysis is actually done correctly, but isn’t it 

true that the EPA published a rule in the Federal Register detailing the cost of this proposal? This proposed rule would be around 

$384 million annually, while the social benefit would only be $18 

million. 

Ms. STONER. I do not have those numbers, but I assume that you 

are providing correct information. 

Mr. RIBBLE. Yes, I think I am as well. And I am curious. How 

does that number, $384 million in cost with only $18 million in 

benefit, how is that consistent with Executive Order 13–563? 

If you do not know the answer, I would like you to provide it for 

me later. That would be acceptable. 

Ms. STONER. The Executive orders that I am familiar with talk 

about analyzing costs and benefits and understanding them. Cost 

and benefit analysis is part of the regulatory process, but we are 

not always in a situation where monetized benefits exceed monetized cost, and often that is because it is more difficult to figure out 

how to monetize benefits. Costs are easier to get data on. 

So it is not necessarily inconsistent with that, but the process enables us to think through that with our Federal colleagues. 

Mr. RIBBLE. Well, the cost-benefit analyses that I am mostly concerned about are constituents in Wisconsin that may have to 

31 

choose between paying for a food bill or paying the electric bill. I 

look at the combined. 

Have you done any analysis to tell me what the combined impact 

is on coal and nuclear power plants when you add this particular 

rule as well as some of the area missions rules? Have you done any 

combined analysis on that? It seems like kind of a pretty big head. 

I am concerned about power costs really inflating here. 

Ms. STONER. We are looking at talking with the Air Office and 

others to make sure we understand the impact of multiple regulatory requirements, and as I said earlier, we are also very interested in how our work can help support the economy, and that is 

one of our goals, is to make sure that resource protection can support the economy. 

Mr. RIBBLE. Well, it looks like it is pretty much out of whack 

with the cost of $384 million versus only $18 million social benefit. 

There are 690 power plants nationwide, but there were only 3 

plants chosen for the data set. Why was that? 

Ms. STONER. I will have to get back to you on that. 

Mr. RIBBLE. And they were all done in one region of the country; 

is that correct? 

Ms. STONER. I will have to get back to you on where the data 

came from. 

Mr. RIBBLE. I would appreciate it if you would because it appears 

to me that you are trying to put a one size fits all approach by having such a small data set. 

The other question I want to know is if power plants comply with 

the new rules, the new rules are promulgated and they comply and 

they spend this roughly $384 million nationally to do it, what assurances do they have that in a year or two from now you will not 

change the standard again? Will they be grandfathered in if they 

comply today and you change the rule tomorrow? 

Ms. STONER. The rules do not change very rapidly. And also on 

the one size fits all issue, if you looked at our proposal on 316(b), 

you will note that the proposal actually does not have a national 

standard at all for entrainment, but rather a best professional 

judgment approach that would be determined by States based on 

a variety of local factors. 

Mr. RIBBLE. OK. Thank you for that clarification. 

Going back to the underlying question then, what assurances 

does the industry have that if they meet the standard today, they 

spend millions and millions and millions of dollars, that in another 

2 years you will not change the standard to rather than killing 31 

percent of the fish capture per month to 21 percent? What assurances do they have if they do what you ask them that you will not 

move the bar again? 

Ms. STONER. The Effluent Guidelines Program has periodic reviews of the effluent guidelines to update them, and one of the 

rules of thumb that we use is that we do not look at the effluent 

guidelines that have been done within the past 6 to 7 years, and 

it takes several years to update effluent guidelines. 

So there actually is a long period of time before effluent guidelines are updated. Most of them actually are from the 1980s that 

we have in place today, and so technologies actually remain in 

32 

place for a very long time, and those standards remain in place for 

a very long time. 

Mr. RIBBLE. I am out of time, and thank you very much, Mr. 

Chairman. 

Mr. GIBBS. We are going to do another round of questions. I am 

going to start and the Members who came in here, we will get to 

them in just a minute. 

Ms. Stoner, I wanted to go back a little bit and talk about the 

comments. You said 230,000 comments were recorded in the Federal Register. Are the EPA and the Corps developing a comprehensive response to all those public comments? 

And if you can, can you please describe in detail and address 

each one of those comments, concerns, what they were and be specific with some of the answers? 

Ms. STONER. I do not think we have a long enough time for me 

to describe 230,000 comments, but we did analyze all of them and 

have looked to make a number of clarifications to the guidance 

based on misunderstandings of the draft guidance. 

Mr. GIBBS. Are you going to do a document going through and 

explaining that for the record so that we have that? 

Ms. STONER. We are preparing a response to the comments, yes, 

Mr. Chairman. 

Mr. GIBBS. What is the timetable on that? You have put out another draft, you know. 

Ms. STONER. It will come out with the final guidance. 

Mr. GIBBS. OK. Because we would be very interested in seeing 

that. 

I want to talk a little bit more. We have had a lot of discussion 

in the questions about guidance and the expected timing of the socalled Clean Water Act jurisdiction guidance. We actually had a 

hearing last year, and we had State EPA people in here, and there 

was a concern. If you could expound a little bit on guidance, does 

it affect the rights and responsibilities of the people in the regulated community? 

Ms. STONER. It is recommendations. So again, it is intended to 

help individuals figure out how to comply with the requirement. It 

is also—— 

Mr. GIBBS. OK. So it would not be mandatory because people ignore the guidance then? 

Ms. STONER. It reflects our understanding of the statutes and the 

regulations. The statutes and the regulations are what is binding, 

not a guidance document. 

Mr. GIBBS. OK. Because there is a lot of going around in circles. 

We had State EPA people in here at one hearing, and they were 

really concerned. So you know that this guidance sometimes was 

conflicting with State and Federal in their interpretation, and of 

course, with the courts you go round and round and about. 

So I guess we have a concern. Are these guidances kind of circumventing the regular rulemaking process and more of the comments and openings? So, I guess I am just voicing my concern because I have heard that from both sides of the aisle at the State 

level, that you know, that really does apply and then actually having a de facto law through the guidances. 

33 

Ms. STONER. The point of the guidance is to provide greater clarity. That is the point of it, to help people understand what the statutes and the rules are. 

Mr. GIBBS. OK. I want to talk a little bit about the American nutrient standards, narrative standards, and as you I am sure know, 

under the current system of narrative, they take in all account of 

what is going on in a river or a water body, you know, pH, water 

flow, the biology, and moving to a numerical standard, you know, 

I do not know how the science can work. I have just got concerns 

of that. 

So what is the EPA doing? Are you really focusing more going 

to an American standard especially in the Mississippi River Basin 

compared to what we have done in the past, a narrative standard? 

Ms. STONER. There are a number of States that are working on 

numeric standards, and then of course, EPA is also working on numeric standards in the State of Florida, and we think that they 

provide a lot of benefits in terms of, again, clarity, but we are 

working to make sure that we have good scientific foundation. 

I heard you say that you are interested in that, and we are as 

well and have been working to get peer review of our science to 

make sure that we have very good—— 

Mr. GIBBS. On flow through the EPA and States, is there additional financial burden by moving to the numerical standard? 

Ms. STONER. No water quality standard is directly applicable. It 

has to be translated through a permitting process to be directly applicable. A numeric standard is not necessarily more or less stringent than a narrative standard, but it does facilitate implementation. 

Mr. GIBBS. Now, would you still be combining the narrative part 

in that with numerical or are the numerical going to be overriding? 

Ms. STONER. Both are important. Narrative standards do a lot of 

good out there in addressing water quality issues as well as numeric, and sometimes one is appropriate, sometimes another, sometimes both. It is really all designed to meet the designated uses of 

those water bodies, what the waters are used for to make sure that 

they are safe for use. 

And States set those uses, and the standards are designed to ensure that people know they can use the water safely. 

Mr. GIBBS. Just one quick question. I asked this yesterday to 

Secretary Darcy about the phosphate mining permits in Florida 

and trying to expedite those because, you know, we are going to 

lose that. They are bringing in raw material to produce phosphorus 

fertilizer from Morocco, China, and Saudi Arabia, and can you just 

comment quickly on what the status is of the EPA on those permits? 

Ms. STONER. My guess is that Ms. Darcy knows more about it 

than I do. 

Mr. GIBBS. OK. So you don’t have any—— 

Ms. STONER. I do not have specific information about those permits. 

Mr. GIBBS. You do not have any interaction with the EPA at your 

level with the Corps? The Corps is actually administering that 

themselves and EPA is not involved in that? 

34 

Ms. STONER. I do not know that no one is involved in it, but I 

am not personally involved, and I am sure Ms. Darcy knows more. 

Mr. GIBBS. Can you get back to me on that question? 

Ms. STONER. Yes, Mr. Chairman, I would be happy to. 

Mr. GIBBS. We can see what EPA’s involvement is in that permitting process because I think it is of strategic national importance 

that we know what is going on there. We are going to lose another 

industry. 

Representative. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman, and I am sorry I 

was absent. I had another hearing somewhere else that I had to 

go vote on. 

But one of the things that I would like to ask either one of you, 

there is the San Gabriel Valley Superfund that has been ongoing 

for at least a good 15 years, has probably another 15 to go, and my 

understanding is the funding has been either reduced or cut, and 

it is going to take a lot more. 

I know the PRPs, the potential responsible parties, have come to 

the table thanks to EPA, and they are working, and it is a community that services millions of people, probably around 15, 20 cities, 

and I certainly would like to have a followup and find out when 

we can count on EPA to continue helping clean up that aquifer. 

It gathers at Whittier Narrows Dam and services probably a 

good 15 cities below the Whittier Narrow and the underground 

aquifers meet, and it is critical for us to continue. It has shrunk. 

It is getting better, and apparently they had a failing in one of the 

pumping plants recently, and they figured out it was an error probably manmade rather than—I am sorry. It was a mechanical failure, not man, and those are things that I would love to have you 

please report to us and this subcommittee if they are so interested. 

But I certainly wanted to tell you that your former Region 9 director, Wayne Nastri, and your current director have been exceedingly helpful to the 77 cities that I put together through the Councils of Government to talk to them and then have them direct the 

questions that are vital to running the communities directly. These 

are elected officials, and they have been very exceedingly helpful 

in addressing some of these issues, and I suggest others try to do 

the same at the local level because it does take the onus off of us 

coming here and going after EPA because things are happening in 

their own backyard. 

Another area is those living in small communities, especially 

those in Texas and the colonias or tribal land specifically do not 

have the same access to traditional water and waste water supply 

systems, and I would like to know how EPA will allocate and distribute the 2013 funding for Clean Water Act, Section 106, the 

Water Pollution Control Program grants. 

Now, the colonias do not have sidewalks. They do not have electricity. They do not have running water, and as you can see, they 

probably have a lot of issues with health services, and I am assuming that tribal lands are very much in the same boat. Have the 

colonias, their assistance program and the U.S.-Mexican Border 

Water Infrastructure Program successfully addressed—I think they 

are working on it—the needs of these disenfranchised communities? 

35 

Then there are a couple more questions, but I would like to start 

with that one. 

Ms. STONER. We do have a program, U.S.-Mexico Border Program that is of assistance to many of those communities. We are 

seeking actually an increase in that program over the fiscal year 

2012 enacted budget of $5 million. That is a program that provides 

first time access to safe water and sanitation. 

Mrs. NAPOLITANO. I am sorry, but is $5 million enough? Because 

you are talking a whole area, a whole border area that has been 

neglected for decades. 

Ms. STONER. Well, it was the best that we could do in terms of 

request for this budget, but there are great needs in that area, absolutely. It is a very important program and, as I said, provides 

first time access to many Americans who have not previously had 

sanitation and safe drinking water. 

Mrs. NAPOLITANO. I will add them to my Indian rhetoric on how 

we are not helping them. 

Has EPA’s U.S.-Mexico Border 2012 Program been successful in 

opening the dialogue about the need of environmental protection 

along our border and what are your goals for the 2020 program? 

Is there sufficient funding? And you just told me there is not necessarily enough money there. 

But I might want to throw in what about the funding for tribal 

access. 

Ms. STONER. Yes, tribal access is a priority in the budget as well. 

So even though we have a budget cut, we are seeking an increase 

in that funding, and we view that as a very important program. 

Mrs. NAPOLITANO. But what about the border? You are working 

with the Border Committee that is composed of elected and the 

Members of Congress? 

Ms. STONER. We are working closely with a lot of different entities, and the other important thing about that program is there has 

been some misunderstanding that it is a foreign aid program. This 

is actually dollars that go to benefit Americans who live along the 

border. All of the projects benefit U.S. citizens. 

Mrs. NAPOLITANO. Thank you, and I beg your indulgence, Mr. 

Chairman. 

Your testimony stated the 2013 budget requested $1.175 billion 

for Clean Water State Revolving and $850 million for Drinking 

Water State Revolving, a reduction of $359 million. But that level 

will still enable States and tribes to begin approximately 500 clean 

water and the 400 drinking water programs. 

But how are you going to do the outreach and target? How are 

you going to prioritize and target to small and disenfranchised 

communities who have limited access, cannot come here and lobby, 

cannot know what to do and where to go to? 

Ms. STONER. That money does go to State entities to redistribute 

it, but we do encourage funding to small communities and communities that have difficulty getting loans in the outside markets. 

We also have a grant out right now for technical assistance to 

small communities, and so that is something that we are seeking 

assistance right now to help small communities address their 

needs. 

36 

Mrs. NAPOLITANO. Have you looked at maybe the public-private 

partnerships, the three Ps, to be able to bring in outside assistance? 

Ms. STONER. Well, as I am sure you know, the President has an 

infrastructure bank proposal that includes water and waste water, 

and so that is one funding mechanism that the President has indicated his support for and has urged Congress to look at. 

Mrs. NAPOLITANO. Well, may I suggest that we look at private 

investment also? Because they will get paid back. Most of those 

will be loans that are going to be guaranteed by the Federal Government if we start something, a program that is going to help 

these entities and not wait for another decade. 

Ms. STONER. Thank you for that comment. 

Mrs. NAPOLITANO. Thank you. 

The last one or Mr. Stanislaus. I am sorry, sir, I was not here 

for the first round. Is EPA incorporating green technology in 

Brownfields cleanup programs and the associated job training programs? And underserved and disadvantaged include education and 

job training and retraining and green technologies, use of solar, 

wind energy, et cetera. 

And you noted that in fiscal year 2013, you plan to award additional 20 areawide Brownfields planning projects. 

Are they located in the border region? And if so, where are they? 

Mr. STANISLAUS. OK. So let me deal with the areawide planning. 

It is going to be a national competition. We are going to focus on 

economically distressed communities as we did in the prior round, 

and we will do some targeted outreach to smaller communities. A 

lot of smaller communities ask us to do that. Tribal communities 

have asked us. So we will be doing some targeted outreach to make 

sure that smaller communities can compete fairly. 

Mrs. NAPOLITANO. But what chance do they have when they may 

not know the process? They may not be able to afford to have a 

grant right or they may not afford to be able to do a lot of that. 

How are you going to address that? What priorities are you going 

to give the small communities? 

Mr. STANISLAUS. That is a very good point. What we did last 

time, we did a number of targeted outreach efforts to them. In fact, 

the majority of areawide grants that we gave last time was to 

smaller communities, and I welcome additional efforts that we can 

take to make sure we do, in fact, do the outreach. 

In fact, we have done workshops on how to prepare the grants 

themselves because we really appreciate the difference in capacity 

between large communities and small communities and where to 

kind of equalize the playing field. So we plan to do that. 

Mrs. NAPOLITANO. Are you working with the education institutions to be able to train them to be able to assist these entities in 

their area? 

Mr. STANISLAUS. We have done outreach to educational institutions, and the specific ones that we can do outreach to, please let 

us know and we will do that. 

Mrs. NAPOLITANO. Very much, sir. Thank you so much for your 

indulgence, Mr. Chair. 

Mr. STANISLAUS. And I will just mention I will get back to you 

on the Superfund site you mentioned. 

37 

Mr. GIBBS. Mr. Lankford. 

Mr. LANKFORD. Thank you. 

Ms. Stoner, just to finish up real quick on the 316(b) issue, I understand that is a court implemented extension of the plain reading 

of the 316(b). when you read the 316(b), you’re not going to get this 

standard proficient impingement. The court has added that. I get 

that. 

I would propose at some point that we as a committee or others 

look at trying to clarify from the legislative side the impingement 

requirements, the best technology available, extension on that, because it seems to be an infinite extension that at any point if you 

have the possibility of impinging one less fish that is a never-ending cycle, the percentage decrease on impingement. 

But with that, the courts have gone through and they have clarified the cost-benefit ratio, and so what Mr. Ribble brought up before seems to be a very pertinent issue if we cannot establish a 

cost-benefit ration that is consistent or that is rational, we have an 

issue with that no matter what the best technology available requirements may be. 

And so I would continue to press on EPA to say you have to look 

at the cost-benefit on this. That has been reaffirmed by the courts. 

Let me shift over as well. I want to talk a little bit about the 

frack study that EPA has been doing with hydraulic fracking. What 

is the status on that study at this point? 

Ms. STONER. So that is a study that the Office of Research and 

Development is leading, and it is a study looking at hydraulic fracturing and a number of aspects, gathering data across the country. 

One of the issues it is looking at is the relationship between hydraulic fracturing and drinking water. It is my understanding that 

there will be some information provided at the end of 2012 in 

terms of the first results of this study. 

Mr. LANKFORD. You are talking October, November, December or 

when you say into 2012? 

Ms. STONER. That is the best information I have, the end of 2012 

is the schedule for the first installment, and then I believe the 

overall study will be completed in 2014. 

Mr. LANKFORD. OK. What is the status on the peer review on 

that? The law itself asks for the study that was done by the previous Congress also required a peer review process throughout the 

course of that. Where is that in standing with this as well? 

Ms. STONER. I do not know the details of that, but I do believe 

there is peer review contemplated for that study. 

Mr. LANKFORD. Can you give me some confidence in this? Because here is part of my struggle. There is a requirement for the 

peer review, but my fear is that EPA is going to release initial findings that have not been peer reviewed and will make a giant media 

splash and then later a peer review will come back and look at it 

and say, ‘‘Well, maybe that was not exactly right. It was more 

this.’’ And then there will be a correction by EPA and there will 

be some conversation on that in years to come, and that will have 

no media splash, but what will come out initially will be what is 

not peer reviewed. 

38 

Can you give me some confidence EPA will not release any preliminary findings until they have been peer reviewed as required 

by the study? 

Ms. STONER. Do you want to say something? 

Mr. STANISLAUS. Well, we will get back to you in terms of the 

peer review policy. Typically a peer review occurs before there is 

a public disclosure of the findings. 

[Environmental Protection Agency insert for the record follows:] 

EPA’s general position is that, we do not expect to release 

partial findings in advance of the peer review process. 

However, if EPA finds results of urgent concern regarding 

public health or environmental impacts, particularly in 

evaluation of local situations, we will immediately notify 

the appropriate parties and begin action. 

Mr. LANKFORD. Given a leak. Because I just say that. Do we 

know at any point, at this point in the status any situation where 

hydraulic fracking has caused contamination in drinking water? 

Mr. STANISLAUS. I cannot speak to that. I think the Office of Research and Development is leading that study, is examining that 

very question at the moment. 

Mr. LANKFORD. But at this point we do not know of any that you 

can point to and say that one is already there? Because we had Administrator Jackson obviously several months ago and asked the 

same question on that. That has been several months, and I just 

want to be able to follow up and say, ‘‘I heard their response several months ago. Where are we now at this point through the process? Do we know of any situation nationwide where hydraulic 

fracking has cause contamination in drinking water?’’ 

Mr. STANISLAUS. I do not know specifically the extent of the Office of Research and Development’s analysis of that. Clearly, that 

is something that they will be incorporating as part of their study. 

Mr. LANKFORD. OK, and you anticipate the release of all of this 

somewhere towards the end of this year? 

Mr. STANISLAUS. That is my understanding, but we can get back 

to you on the specific dates. 

[Environmental Protection Agency insert for the record follows:] 

A first report on the study will be released for peer review 

in late 2012. The second report is scheduled for release to 

peer review in 2014. 

Mr. LANKFORD. OK. Ms. Stoner? OK. 

With that I yield back. 

Mr. GIBBS. Mr. Harris. 

Dr. HARRIS. Thank you very much, Mr. Chairman. 

Let me just follow up a little bit about that and ask a question. 

Is there any funding in the EPA Office of Water that is going to 

go toward that study of hydraulic fracturing? Any resources out of 

your office? 

Ms. STONER. The lead on the study that we were just talking 

about is the Office of Research and Development. We also have activities with respect to hydraulic fracturing that are part of the Office of Water’s budget. 

39 

Dr. HARRIS. OK, and to what extent? Because our understanding 

is that there are now ten different agencies involved, and now it 

looks like there are actually two areas of the EPA that are involved. So what is the extent of your budget involvement? 

Ms. STONER. What we are doing is looking at the applicability of 

the Clean Water Act and the Safe Drinking Water Act to hydraulic 

fracturing and to the disposal of the waste water associated with 

it. 

Dr. HARRIS. Right, and that is exactly the same thing the Office 

of Research is doing as well. So I am confused perhaps, but if you 

could get back to us and just determine whether there are, you 

know, line items in the budget or it is just going to come out of 

general office funds, I would appreciate that because, you know, 

the gentleman from Oklahoma makes a very good point because 

the word we get is that, in fact, this will probably be released just 

like the last one before a peer review study is done. 

We think that is a little unusual. So I am very encouraged to 

hear that your position would actually be that peer review should 

occur first. And thank you very much because you are absolutely 

right. You know, despite what you read in the press, there is no 

cause and effect relationship between hydraulic fracturing and 

drinking water contamination that has been proven scientifically. 

You got it right. The press gets it wrong continually. 

Let me just ask with regard to the TMDLs, and I would also like an idea with regard to the Chesapeake Bay there is $14.4 million 

in grants that is in your prepared testimony that goes toward the 

TMDL implementation. Are there other monies in the Office of 

Water that is going to help the local jurisdictions implement the 

TMDLs or is that it? 

Ms. STONER. Well, the funding under 106 goes to States including those in the Chesapeake Bay. 

Dr. HARRIS. So how much is going to the States in the Chesapeake Bay out of that? 

Ms. STONER. I cannot give you that number off—— 

Dr. HARRIS. Can you get that back to me? Because you know 

what is striking is that just one county in my congressional district 

actually has a cost estimate of $2.3 billion placed on that country, 

$2.3 billion place on that county as a result of TMDL requirements, 

and I am afraid this is just going to be another huge unfunded 

EPA mandate, this time not on industry although it also is on industry on the poultry and farm industry as well, but also on our 

local jurisdiction. 

So it appears you are branching out. You know, you are equal 

opportunity. You do not just pick on the energy companies. You do 

not just pick on private industry, but now you are actually going 

after governments as well and causing them to spend money at a 

time of economic crisis. 

I will remind you that our Governor and the general assembly 

are going to wind up next week, and they are going to have to pass 

fairly huge tax increases, and that is even before they have to 

begin complying with huge TMDL costs. 

Let me just finish up by asking you about the 316(b). I am sorry 

I was not here for the first round. Ms. Stoner, about how many 

plants that met the old EPA’s definition of closed cycle cooling do 

40 

you think do not meet the new definition? Is there a number of 

plants? 

Because I know there was an estimated cost that you had given 

to upgrade, but do you have an idea of the number of plants that 

the new rule would affect? 

Ms. STONER. The old rule had to do with new plants, and the 

current rule that we have proposed and will be finalized has to do 

with existing structures. 

Dr. HARRIS. Correct. That is what I mean. Those, how many of 

those will it affect? How many will be affected by the change in 

that rule for old, existing plants? 

Ms. STONER. Well, if they do closed cycle cooling again, they are 

already in compliance. 

Dr. HARRIS. Except that the definition of closed cycle cooling kind 

of changed a little bit. I mean, it became much more specific with 

regards to how often you have to recycle your water and things like 

that. Is that right? That is my understanding. 

We kind of changed the rules in midstream on these companies 

that invested hundreds of millions of dollars. 

Ms. STONER. Well, first of all, that rule has not been finalized 

yet. So we have not made any final determination on it. 

Dr. HARRIS. All right. Let’s assume it is finalized. When you proposed the rule, did you take into consideration how many plants it 

would affect? 

Ms. STONER. We have an economic analysis that goes with our 

proposed rule, yes. 

Dr. HARRIS. OK. If you could forward it to me, I would appreciate 

that. 

You know, I share the concern that was voiced before. You know, 

you say that rules take a long time to change, but you know, the 

President just announced a couple of days ago that once he gets reelected there is some flexibility. Now, I am afraid that one of the 

flexibilities is going to be that now we can actually speed along the 

rulemaking process, and what used to take 10 or 15 years to 

change we can change in a year or two with a new rule. 

Since this 316(b) rule change is already a change to a rule that 

was already in place, is it true that, in fact, without legislative definition that, in fact, the EPA could, in a period of new flexibility in 

a reelected administration, could, in fact, decide 2 years from now 

to just come up with another rule for 316(b)? 

Is that true? In other words, given the current state of the wording, because my understanding of the wording is it gives you fairly 

broad authority to say, ‘‘Well, yes, you have to use the best available, you know, methods to minimize environmental impact,’’ you 

could decide 2 years that now there are new best available methods 

to minimize the environmental impact and come out with new 

rules. Is that theoretically possible in a new flexible era? 

Ms. STONER. We have been working on coming up with one rule 

for approximately 20 years. 

Dr. HARRIS. OK. Is it theoretically possible in a new era of flexibility to come up with a rule in another 2 years without separate 

legislative guidance making it clear, you know, what the limits are 

at the EPA? 

41 

Ms. STONER. I think if you would look at the timeframe that it 

takes to do rules the answer would be that it will not happen. 

Dr. HARRIS. What is the shortest period of time you could do it 

if you decided tomorrow that that rule was not the best available 

technology and you wanted to change it? Three years? 

Ms. STONER. I think it would take several years. 

Dr. HARRIS. Not 20, not 10? Well, within the second administration, the new, flexible administration? 

It is possible within 4 years. Let me put it simply. Is it possible 

within 4 years? 

Ms. STONER. I am trying to provide you accurate information 

about how long it actually takes to do a rule. 

Dr. HARRIS. Is it possible within 4 years? Look. I am not the Administrator. You are. Is it possible if you had your mind set on it 

you could do it within 4 years? 

It is a simple question. This is not complicated. 

Ms. STONER. What I am trying to reflect is that there is no intention to do another 316(b) rule, and what we are trying to do is finish the 316(b) rules that are required by Congress that we have not 

yet finished and we have been working on it for approximately two 

decades. 

Dr. HARRIS. Can you submit the answer in writing maybe? Because obviously you are not willing to say whether it can be done 

in 4 years or not. I mean that is a pretty simple question. I do not 

understand, you know, the bureaucracy, but I will bet my bottom 

dollar that if somebody in a new era of flexibility decided they 

wanted to change this rule, I will bet you it could be done in 4 

years even if you are not willing to admit it in front of this committee today. 

Thank you, Mr. Chairman, for your indulgence. I yield back. 

Mr. GIBBS. Thank you. Mr. Landry. 

Mr. LANDRY. Thank you, Mr. Chairman. 

Ms. Stoner, where did you grow up? What part of the country? 

Ms. STONER. I am from Waynesboro, Virginia. 

Mr. LANDRY. Virginia, OK. Well, unfortunately where you grew 

up you were not like 30 other States in this country that make up 

the Mississippi River basin, and that when all of those people in 

the majority of the States, when they flush their toilet, it eventually makes its way down through Louisiana. 

And the question I have for you is pretty simple. Why are you 

imposing on the State of Louisiana the sole responsibility for the 

effects of everyone else in the country, or at least in 30 other States 

when they flush their toilet, that we have got to be responsible for 

what makes its way down the Mississippi River? 

Ms. STONER. That is actually not what we are doing, Congressman. So the situation with Louisiana and the dissolved oxygen 

standard that we listed certain coastal waters in Louisiana as not 

meeting their dissolved oxygen standard. Oxygen of course being 

important for fish to be able to breathe, that impairment only 

needs to be addressed by Louisiana in terms of discharges into the 

State of Louisiana. 

They are not responsible for upstream loads. 

42 

Mr. LANDRY. But how are you going to differentiate because 

those water bodies that you are placing that rule on are impacted 

by the Mississippi River? 

Ms. STONER. Absolutely, the Mississippi River Basin all flows 

down to Louisiana. 

Mr. LANDRY. Are we going to be able to pull a sample and say, 

‘‘No, this did not come from Louisiana’’? 

Ms. STONER. There is monitoring that is done, loading analysis 

that is done. 

Mr. LANDRY. You can tell which toilet it comes out of? I am just 

trying to understand. 

Ms. STONER. Yes, the USGS does a really fine job in determining 

where loads are coming from, and Louisiana is not responsible for 

addressing loads that come from outside that State in responding 

to the impairment of dissolved oxygen along its coastal waters that 

impact its resources. 

Mr. LANDRY. But you are agreeing that these water bodies are 

impaired by pollution coming from the Mississippi River. You are 

agreeing with those comments, correct? 

Ms. STONER. Absolutely, particularly the Dead Zone in the Gulf 

of Mexico. 

Mr. LANDRY. But you proceeded on listing these water bodies. 

Ms. STONER. The water bodies are listed not based on where the 

pollution comes from. A listing has to do with whether or not the 

water body meets the water quality standards set by the State 

based on the use of those waters. 

Mr. LANDRY. But if other States are impacting the water quality 

in those water bodies, why are you holding our State solely responsible? 

Ms. STONER. Again, we are actually not holding Louisiana responsible. 

Mr. LANDRY. Well, that is not what they are telling me in Louisiana. OK? Would you mind sending me a letter to that effect, in 

that statement stating so I can send it over to my Governor and 

get it over to our farmers and saying, ‘‘Listen. EPA is not going to 

hold the State of Louisiana solely responsible for the impact in 

those water bodies’’? Because that is exactly what you are saying. 

Would you mind giving me that in writing so that I could pass 

that on? 

Ms. STONER. We would be happy to work with you on that. 

Mr. LANDRY. No, no, no. I do not want you to work with me. I 

just want you to send me a letter to that effect. Is that what we 

are going to have here? 

I mean, I know you are good. Let me tell you. Look. If you were 

a witness, I would want you on my side as a lawyer. 

Ms. STONER. Thank you. 

Mr. LANDRY. But I am just asking you. The letter to that effect? 

Ms. STONER. I think that I have actually signed letters to that 

effect. So I will look to see what I have and we will make sure your 

questions are answered. 

Mr. LANDRY. Thank you so much, Mr. Chairman. I yield back. 

Mrs. NAPOLITANO. Would the gentleman yield? Would the gentleman yield? 

Mr. LANDRY. Yes, ma’am. 

43 

Mrs. NAPOLITANO. Well, as I suggested, why don’t you have EPA 

go visit with your electeds and find out directly from them what 

it is that they need to find out? That way you do not have to have 

a letter because a letter will only explain so much, but if you ask 

them to come in and explain and show and give you the information, that may help your elected officials. 

Mr. LANDRY. What information? 

Mrs. NAPOLITANO. Whatever you request in writing from them to 

come address. 

Mr. LANDRY. No, no, no. The problem is that they are listing 

water bodies, State water bodies, OK, that are impacted from Mississippi runoff, just like the majority of coastal Louisiana is being 

impacted by runoff from 30 other States, and they are holding us 

accountable and making sure that we have to develop total maximum daily load levels within the State of Louisiana that are not 

being addressed by all the other States, but she is telling me that 

it is different. 

And so if she sends us that letter and once we have that letter, 

when EPA comes in and starts demanding that we meet that particular criteria, I can show them that letter and say that we do not 

have to. 

Ms. STONER. We would welcome the opportunity for dialogue 

with you about the Gulf of Mexico also and the strategy through 

the Hypoxia Task Force to address that. 

Mr. LANDRY. Well, I certainly do want to address that, but before 

we get there, which we could have gotten to had you not impacted 

these three other water bodies, listed these three other water bodies, so I want to get rid of those three other water bodies or address 

those, and then we are going to address hypoxia in the Dead Zone 

which has been there for the last 20 years or so. So, I mean, it cannot be that important to you all because we have been having that 

problem for the last 20 years. 

Ms. STONER. I agree that there is more work to be done there. 

In addressing the loadings from the State of Louisiana is a start, 

but to address the Dead Zone in the Gulf of Mexico, we do need 

to address loading—— 

Mr. LANDRY. But to address that, you have got to address the 32 

other States above us. 

Ms. STONER. Everyone has a piece of that from the whole watershed, absolutely. 

Mr. LANDRY. OK. 

The CLERK. OK. Mr. Young just showed up. Mr. Young, go 

ahead. 

Mr. YOUNG. Thank you, sir. I apologize for that. 

Ms. Stoner, the rule coming out of EPA would ban the use of 

urea chemical in de-icing runways, pavement actually. Where is 

the final rule in the process? 

Ms. STONER. It is still over at OMB in interagency review, I believe. 

Mr. YOUNG. When is the final rule expected? When do you think 

it will be published? 

Ms. STONER. It should be sometime this spring. 

44 

Mr. YOUNG. Did you evaluate the impact of a ban on urea in climates with hearty and high precipitation and rain forests like Juneau? Did you do any studies at all? 

Ms. STONER. We did a cost-benefit analysis associated with that 

rule. 

Mr. YOUNG. And what was the decision of cost-benefit? You 

know, the difference between that, my understanding is $3,000 per 

airport application versus $30,000; is that right? 

Ms. STONER. I do not know those numbers, but—— 

Mr. YOUNG. OK. Well, what I am saying is in Alaska it is devastating. It is devastating. We have to de-ice. It is not like, you 

know, Washington, DC, or Phoenix, Arizona, or that place. We have 

to de-ice a runway. Especially this year we had the coldest year in 

the last 55 years in Alaska, and it is going to cost, to my understanding if it is $30,000—it is 10 to 1 is what it boils down to. 

Was there any consideration given to that or did you study Alaska is what I am saying. 

Ms. STONER. I am confident that we looked at different climates. 

Mr. YOUNG. I would like to see some of the studies, who did it, 

and on what basis. Was it actually on field and activity or was it 

done in a room? I would like to see that. 

Ms. STONER. I would be happy to, you know, provide you the information on what we did at the time the rule was finalized. 

Mr. YOUNG. OK. Mr. Chairman, with all due respect, I am not 

mad with you. I am mad at your agency right now. Let’s put it that 

way. You are the most overreaching, self-governing, stick it in your 

nose agency in the world without looking at what happens to people under the guise of protecting the environment. 

But you are not. No one is telling me where this is harmful. I 

want to know. It is just like you made that decision on high usage 

of fuels. Never had a study in Alaska. You put all of my ships 

down, including which delivers freight to my local people, on clean 

diesel because of stillbirths, no science, never studied it. You studied the Great Lakes. 

So I want to know did you actually have people on the ground, 

what was the report, who they were, what time. I want to see the 

whole thing. I want to see how you made this brilliant decision in 

the grand State of Alaska. If you can get that for me I really would 

appreciate it. And I do not want to wait 6 months. 

Go ahead. 

Ms. STONER. Well, we did a cost-benefit analysis. We will see 

what—— 

Mr. YOUNG. That is all you did, is a cost-benefit analysis? 

Ms. STONER. That is what we did. That is what we are required 

to do and that is what we did, yes, sir. 

Mr. YOUNG. You are not required to do anything else? Who is required to do the other studies? 

Why was it put in place? 

Ms. STONER. I mean there are other requirements of the law, 

considering best available technologies. Actually you are talking 

about an effluent guideline. So it is the best available technology 

economically achievable. We look at each element of those. We 

gather the best information about what technologies are in place, 

what airports are already doing, what airlines are already doing, 

45 

what can be accommodated to achieve the benefits, and then we 

also look at what the benefits are, what the pollution reduction will 

accomplish. 

And that information will be available when the rule is finalized 

which should be this—— 

Mr. YOUNG. Again, I want to find out how it was done. I want 

to see people, where they are on the ground, when they were on 

the ground, what they studied. 

This is not a little bubble we are living in, and I bet I will find 

out there was nobody who went to Alaska to study it. I will find 

that out, Mr. Chairman, and when that happens, I am going to 

have you guys back to expose you, how you are running your operation with no science. Most of your decisions are done with no 

science. 

Cost-ratio benefit? Show me where the benefit comes when it is 

30,000 versus 1,000. 

Ms. STONER. There is science and technology evaluation, as well 

as cost-benefit analysis that goes along with every rule that we do, 

and we follow the law. We implement the best science that we can 

obtain. 

Mr. YOUNG. The issue of using this liquid that you want to replace the urea with is a liquid, expensive, hard to store, I mean, 

all of these things. I want to see all of the results. I want to see 

the whole study and who did it. 

Mr. Chairman, I want to make sure you get it and look at it real 

closely. I think we can expose you for what you really are and why 

you should not get any more money. 

Thank you, Mr. Chairman. 

Mr. GIBBS. Thank you. 

That concludes the questions and the hearing. I just wanted to 

thank you for coming and re-emphasize we had a lot of discussion 

on guidance and I guess a concern, especially in the hearing we 

had last year when we had your State counterparts in. It was actually two hearings, the problem with their seeing the guidance, and 

you know, I think if we are not careful, we are putting a lot of stuff 

to the courts to decide and causing a lot of litigation. 

I hope especially in light of the recent court decisions that we 

just saw here since last fall, that we are not going to spend a lot 

of taxpayer money to prolong the inevitable when I think these decisions were good and we need to take heed of that. 

So thank you for coming, and this concludes this hearing. 

[Whereupon, at 12:25 p.m., the subcommittee was adjourned.] 

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