[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



 
           EPA WATER ENFORCEMENT: ARE WE ON THE RIGHT TRACK?

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON ENERGY POLICY, NATURAL
                    RESOURCES AND REGULATORY AFFAIRS

                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 14, 2003

                               __________

                           Serial No. 108-157

                               __________

       Printed for the use of the Committee on Government Reform







  Available via the World Wide Web: http://www.gpo.gov/congress/house
                      http://www.house.gov/reform

                                _______


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                     COMMITTEE ON GOVERNMENT REFORM

                     TOM DAVIS, Virginia, Chairman
DAN BURTON, Indiana                  HENRY A. WAXMAN, California
CHRISTOPHER SHAYS, Connecticut       TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana              CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio           ELIJAH E. CUMMINGS, Maryland
DOUG OSE, California                 DENNIS J. KUCINICH, Ohio
RON LEWIS, Kentucky                  DANNY K. DAVIS, Illinois
JO ANN DAVIS, Virginia               JOHN F. TIERNEY, Massachusetts
TODD RUSSELL PLATTS, Pennsylvania    WM. LACY CLAY, Missouri
CHRIS CANNON, Utah                   DIANE E. WATSON, California
ADAM H. PUTNAM, Florida              STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia          CHRIS VAN HOLLEN, Maryland
JOHN J. DUNCAN, Jr., Tennessee       LINDA T. SANCHEZ, California
JOHN SULLIVAN, Oklahoma              C.A. ``DUTCH'' RUPPERSBERGER, 
NATHAN DEAL, Georgia                     Maryland
CANDICE S. MILLER, Michigan          ELEANOR HOLMES NORTON, District of 
TIM MURPHY, Pennsylvania                 Columbia
MICHAEL R. TURNER, Ohio              JIM COOPER, Tennessee
JOHN R. CARTER, Texas                            ------
WILLIAM J. JANKLOW, South Dakota     BERNARD SANDERS, Vermont 
MARSHA BLACKBURN, Tennessee              (Independent)

                       Peter Sirh, Staff Director
                 Melissa Wojciak, Deputy Staff Director
                      Rob Borden, Parliamentarian
                       Teresa Austin, Chief Clerk
              Philip M. Schiliro, Minority Staff Director

Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs

                     DOUG OSE, California, Chairman
WILLIAM J. JANKLOW, South Dakota     JOHN F. TIERNEY, Massachusetts
CHRISTOPHER SHAYS, Connecticut       TOM LANTOS, California
JOHN M. McHUGH, New York             PAUL E. KANJORSKI, Pennsylvania
CHRIS CANNON, Utah                   DENNIS J. KUCINICH, Ohio
JOHN SULLIVAN, Oklahoma              CHRIS VAN HOLLEN, Maryland
NATHAN DEAL, Georgia                 JIM COOPER, Tennessee
CANDICE S. MILLER, Michigan

                               Ex Officio

TOM DAVIS, Virginia                  HENRY A. WAXMAN, California
                       Dan Skopec, Staff Director
              Danielle Hallcom, Professional Staff Member
                         Anthony Grossi, Clerk
















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on October 14, 2003.................................     1
Statement of:
    DiBona, Pam, vice president for policy, Environmental League 
      of Massachusetts...........................................   124
    Fox, J. Charles, vice president of public affairs, Chesapeake 
      Bay Foundation.............................................   129
    Metzenbaum, Shelley, director, Environmental Compliance 
      Consortium.................................................    99
    Savage, Roberta, executive director, Association of State and 
      Interstate Water Pollution Control Administrators..........    83
    Schaeffer, Eric, director, Environmental Integrity Project...   139
    Segal, Scott, partner, Bracewell & Patterson, LLP............   113
    Suarez, John P., Assistant Administrator, Office of 
      Enforcement and Compliance Assurance, Environmental 
      Protection Agency..........................................    17
    Thompson, Steve, executive director, Oklahoma Department of 
      Environmental Quality......................................    67
    Varney, Robert W., Regional Administrator, U.S. Environmental 
      Protection Agency..........................................    34
Letters, statements, etc., submitted for the record by:
    DiBona, Pam, vice president for policy, Environmental League 
      of Massachusetts, prepared statement of....................   126
    Fox, J. Charles, vice president of public affairs, Chesapeake 
      Bay Foundation, prepared statement of......................   131
    Metzenbaum, Shelley, director, Environmental Compliance 
      Consortium, prepared statement of..........................   101
    Ose, Hon. Doug, a Representative in Congress from the State 
      of California, prepared statement of.......................     4
    Savage, Roberta, executive director, Association of State and 
      Interstate Water Pollution Control Administrators, prepared 
      statement of...............................................    86
    Schaeffer, Eric, director, Environmental Integrity Project, 
      prepared statement of......................................   142
    Segal, Scott, partner, Bracewell & Patterson, LLP, prepared 
      statement of...............................................   116
    Suarez, John P., Assistant Administrator, Office of 
      Enforcement and Compliance Assurance, Environmental 
      Protection Agency, prepared statement of...................    20
    Thompson, Steve, executive director, Oklahoma Department of 
      Environmental Quality, prepared statement of...............    70
    Varney, Robert W., Regional Administrator, U.S. Environmental 
      Protection Agency, prepared statement of...................    36
















           EPA WATER ENFORCEMENT: ARE WE ON THE RIGHT TRACK?

                              ----------                              


                       TUESDAY, OCTOBER 14, 2003

                  House of Representatives,
  Subcommittee on Energy Policy, Natural Resources 
                            and Regulatory Affairs,
                            Committee on Government Reform,
                                                       Ipswich, MA.
    The subcommittee met, pursuant to notice, at 11 a.m., at 
the Ipswich Town Hall, Conference Room A, 25 Green Street, 
Ipswich, MA, Hon. Doug Ose (chairman of the subcommittee) 
presiding.
    Present: Representatives Ose and Tierney.
    Staff present: Dan Skopec, staff director; Danielle 
Hallcom, professional staff member; Yier Shi, press secretary; 
and Anthony Grossi, clerk.
    Mr. Ose. This hearing of the Committee on Government 
Reform, Subcommittee on Energy Policy, Natural Resources and 
Regulatory Affairs, is coming to order. It is 11:02 a.m., 
Tuesday, October 14th.
    I ask that we allow Members not on the full committee to 
join us today for purposes of this hearing.
    Hearing no objection, so ordered.
    We have two panels of witnesses today. Mr. Suarez and Mr. 
Varney are on the first, and then the balance of the witnesses 
are on the second.
    Congressman Tierney and I will each have an opening 
statement, after which we will swear in the first panel of 
witnesses. The first panel of witnesses then will be given 5 
minutes to make their statements. We have copies of their 
statements that have been entered into the record, and copies 
of their statements are in the back of the room for anyone that 
wishes to read them.
    After their 5-minute statements, we'll enter into 
questions, and then the court reporter here will record the 
answers. Everybody gets sworn in on this committee; it's just a 
tradition of the Government Reform Committee.
    Our plan is that the first panel will go about an hour, 
we'll take a short break, the second panel will go about an 
hour, and then we'll be completed; it's obviously subject to 
change depending on how lengthy the question-and-answer period 
becomes.
    Mr. Skopec will be monitoring the time. Mr. Skopec at 4 
minutes will hold up a sign which says ``One Minute,'' which 
means you have 1 minute remaining on your 5-minute testimony; 
hopefully we'll be able to go expeditiously.
    I am pleased to be here in Ipswich today. In fact, as I was 
walking around the building, Mr. Varney was regaling us with 
tales of his youthful exploits in soccer on the football field.
    But we're not here to discuss that; we're here to discuss 
the hugely important topic of the protection of our Nation's 
waters.
    Massachusetts is well-suited for this discussion, as it 
faces the challenge of providing safe drinking waters and clean 
lakes and oceans in one of the Nation's oldest industrial 
centers.
    Our focus today is the Environmental Protection Agency and 
its efforts to enforce the Clean Water Act. This hearing will 
explore the mutually reinforcing relationship between EPA's 
strategy of compliance assistance and formal enforcement, 
sometimes referred to as the carrot and the stick.
    Both compliance assistance and traditional enforcement 
methods are fundamental tools to ensure successful 
environmental protection.
    As President Clinton stated in his 1995 Reinventing 
Environmental Regulation report, the adversarial approach that 
has often characterized our environmental system precludes 
opportunities for creative solutions that a more collaborative 
system might encourage.
    Since the mid-1990's, EPA has increasingly used compliance-
assistance programs in conjunction with traditional enforcement 
tools to help facilities comply with Federal environmental laws 
and regulations.
    Evaluating whether EPA's and the States' efforts have 
actually achieved results is a more difficult undertaking.
    My background memorandum for today's hearing, which is 
located on the back table, contains statistics on traditional 
enforcement performance measures. However, merely tabulating 
the number of enforcement actions or outputs does not measure 
actual results.
    For example, the collaborative work done by EPA Region 1 on 
the Charles River would not be reflected in the enforcement 
numbers for Region 1. Collaborative efforts can only be 
measured by more meaningful outcome performance data, such as 
the changes in the quality of the water.
    The Bush administration has made a concerted effort to rate 
all Federal programs and activities to ensure that they're 
actually attaining their stated goals.
    At the EPA, this means setting goals for cleaner air and 
water rather than measuring how many permits are issued or 
fines assessed. I commend the Bush administration for focusing 
on results and looking for new and innovative ways to protect 
the environment.
    EPA's Office of Enforcement and Compliance Assurance--and I 
apologize for the acronyms, but we're going to use one now; 
we're going to refer to that as OECA from now on--recently 
completed an internal management review to understand the 
successes, failures, and data gaps in its decade-old National 
Pollutant Discharge Elimination System majors program.
    EPA's efforts resulted in a report that takes significant 
steps toward gathering and analyzing meaningful data. EPA did 
not just gather data; it analyzed policy implications and has 
taken steps to improve data collection and compliance.
    Before we leave this point, I want to mention the majors 
program. Majors are defined for our purposes as facilities that 
discharge more than a 1 million gallons per day; minors are 
below that.
    EPA's data show that the number of NPDES majors facilities 
in significant non-compliance has remained effectively the same 
since the program was first initiated under the Clinton 
administration in 1994. EPA came to its own conclusions that, 
while repeated noncompliance rates have been declining, overall 
compliance can be improved.
    Similarly, EPA also determined that toxic exceedance levels 
and the percentage of facilities in perpetual noncompliance can 
also be decreased.
    As a result of EPA's findings and their desire to reduce 
violations of the law, they have taken concrete actions by 
establishing a Watch List to systematically lower the number, 
frequency, and severity of repeat violations.
    Moreover, the Watch List will not be limited to enforcing 
the Clean Water Act. It will also include repeat violators of 
the Clean Air Act and the Resource Conservation and Recovery 
Act, which is intended to control storage and disposal of 
hazardous waste.
    I applaud EPA's efforts to vigorously pursue facilities 
that repeatedly refuse to obey the law.
    This topic is particularly appropriate here in 
Massachusetts, where EPA has aggressively promoted innovative 
compliance-assistance programs to tackle its environmental 
challenges.
    EPA and the regulated community have moved largely towards 
this goal, not by a sole reliance on aggressive formal 
enforcement actions, but by a collaborative effort to 
understand and eliminate the causes of pollution, and monitor 
water quality to determine success.
    I applaud EPA's and the communities' collaborative efforts 
to clean up the Charles River. It can and should serve as a 
model for other regions around the country.
    I'd like to welcome the following witness to our panel.
    The first panel is composed of Hon. J.P. Suarez, Assistant 
Administrator, Office of Enforcement and Compliance Assurance 
of the EPA; joined by Mr. Bob Varney, the Regional 
Administrator for EPA Region 1, which is this part of New 
England.
    Our second panel will be composed of, Mr. Steve Thompson, 
the executive director of the Oklahoma Department of 
Environmental Quality; Dr. Shelley Metzenbaum, visiting 
professor of the University of Maryland School of Public 
Affairs and director of the Environmental Compliance 
Consortium.
    They'll be joined by Ms. Roberta Savage, the executive 
director for the Association of State and Interstate Water 
Pollution Control Administrators; Mr. Scott Segal, partner at 
Bracewell & Patterson LLP; Mr. J. Charles Fox, vice president 
of public affairs for the Chesapeake Bay Foundation; Ms. Pam 
DiBona, vice president for policy, Environmental League of 
Massachusetts; and Mr. Eric Schaeffer, director of the 
Environmental Integrity Project.
    [The prepared statement of Hon. Doug Ose follows:]





    Mr. Ose. I'd like to recognize my good friend from this 
part of the country for purposes of an opening statement, Mr. 
Tierney.
    Mr. Tierney. I would like to thank the chairman very much, 
and welcome him to Red Sox Nation after last night.
    He didn't get here in time for the game, unfortunately; but 
he certainly heard the results, probably heard the cheering all 
the way up in the air when the plane was coming down.
    I want to thank you, Mr. Chairman, for conducting this 
hearing in Ipswich, MA, in this particular district.
    You did one other hearing previously on energy in Peabody--
not ``Pea-BOD-y''--and I think it's important that we take some 
of these hearings out around the country, so that people don't 
always have to feel that everything happens inside Washington 
and that people are excluded.
    I commend the chairman for his willingness to do that 
throughout the country; this committee has been as eager, I 
think, as anybody else to do that on a regular basis.
    This is a good place to have this meeting, here at the 
Ipswich River, near the mouth.
    The river begins, Mr. Chairman, in Burlington and 
Wilmington, down in Middlesex County, and flows about 40 miles 
before entering Plum Island Sound.
    It encompasses about 155 square miles, and spans all or 
parts of 21 communities in Middlesex and Essex Counties; 
330,000 people, and thousands of businesses, receive their 
water supply from the Ipswich River.
    The river provides a rich habitat for a wide variety of 
wildlife and aquatic species, and remains essential to the 
ever-growing ecotourism industry, attracting beachgoers, 
birders, canoeists, anglers and hikers.
    This river is the example of the distance traveled since 
the Clean Water Act was implemented in 1972 to restore and 
maintain the chemical, physical and biological integrity of the 
Nation's waters.
    The good news: The Clean Water Act mandate to enforce 
discharge limits against industries has been largely effective 
in this area in recent years.
    The only National Pollutant Discharge Elimination System 
major permittee in the watershed--Bostik Findley in South 
Middleton--has historically been a pollutant; but, thanks 
largely to the Clean Water Act, the company has taken steps to 
reduce its impact on the river and to clean up pollution on the 
site.
    Again, we get into these acronyms a little bit. The 
National Pollutant Discharge Elimination System is going to be 
referred to as the NPDES, because we can't keep saying it over 
and over again. We're referring again to major permittees.
    The recent improvements in plant and collection 
infrastructures of the only major wastewater treatment facility 
discharging into the Ipswich basin have addressed historical 
pollution problems. That's, of course, the town of Ipswich's 
wastewater treatment facility.
    There are still occasional violations of discharge limits 
of fecal coliform, and it's a little bit difficult to meet the 
copper limits, as Mr. Varney and I were discussing; but, I 
think that's purposeful, trying to set the bar high and knowing 
that the community is going to try to meet that.
    The improvements are real; the benefits are tangible for 
our shellfish industry, for our fishermen and for our swimmers; 
obviously everybody wishes we had gotten here sooner, but we're 
pleased that we're moving in the right direction.
    But the Ipswich River also has some problems. It continues 
to be the third most endangered river in the Nation according 
to some advocates, in particular the American Rivers, who put 
out its report in 2003.
    It is pumped dry chronically, often causing major fish 
kills; dissolved-oxygen levels are still an issue; use of non-
aquatic recreational vehicles on the riverbed is a serious 
issue; and, water withdrawals for wastewater transfers continue 
to be a concern.
    Mr. Chairman, for a fuller exposition of some of those 
issues, I'd like to put on the record at the appropriate place 
the unanimous consent to enter two statements.
    One is a statement of Joel Mintz, professor of law at Nova 
Southeastern University Law Center. The other is by Kerry 
Mackin, executive director of the Ipswich River Watershed 
Association.
    Mr. Ose. No objection.
    Mr. Tierney. Thank you.
    So you can see, Mr. Chairman, that although the Clean Water 
Act has been upheld and continues to be the law, its 
strengthening and enforcement remain crucial to the Nation's 
environment and to its health.
    One of our witnesses will testify today that in States that 
are confronted with severe budget problems the Federal mandates 
of the Clean Water Act ensure adequate enforcement of at least 
those areas that fall within the scope of the act.
    Many people are concerned with diminishing State 
enforcement abilities and commitment, given these budget 
constraints.
    The February 2003 National Pollutant Discharge Elimination 
System [NPDES], Majors Performance Analysis has given many 
people cause to be concerned about the Federal Government's 
continued commitment to enforcement of the Clean Water Act.
    This hearing is not intended to be partisan. The EPA issues 
on this subject, and in fact to the 2003 report just cited, 
span a period from the last administration into this 
administration; but concerned people can note what appears to 
be a general retreat from enforcement of environmental 
standards under the current administration.
    Sunday's papers recounted a new interpretation of a law 
that purports to allow miners to degrade far more acreage than 
previously permitted as they mine ore.
    Friday's papers reported that the Assistant EPA 
Administrator for air policy, Jeffrey Holmstead, is said by 
some former EPA enforcement officials to have testified before 
Senate committees that the Bush administration's efforts to 
soften clean-air enforcement rules would not harm pending 
lawsuits against aging coal-fired plants, even though key aides 
had told him just the opposite previous to that.
    Obviously, these lawsuits that were bearing fruit in 
holding energy plants to standards are a concern in this New 
England region; and the President's New Source Review Rule 
certainly makes changes that may undermine some of the 
protections that we rely on in this particular region.
    After the failure for many years to comply with the Total 
Maximum Daily Load [TMDL], the program established in the Clean 
Water Act, EPA proposed new rules in 2002 that were directed at 
cleaning up the waterways within the next 10 to 15 years. 
Unfortunately, the Bush administration has recently withdrawn 
those proposed rules.
    I noted as recently as yesterday that the report coming out 
on what may be in the energy bill that's in conference right 
now is that there was one effort to have EPA issue a final 
report; and, instead of waiting for that report to come out on 
environmentally controversial drilling techniques, the energy 
bill may now seek to exempt the technique from controls of the 
1974 Safe Drinking Water Act.
    Also, the energy bill language may do away with the 
requirement that construction activities related to oil and gas 
exploration operate with a permit under the Clean Water Act.
    Obviously, the warning there is that oil and gas 
exploration can go forward without controls on stormwater 
runoff into lakes, rivers and streams.
    Also, the bill would make it easier for companies to get 
Federal aid to clean up leaks and spills even if the companies 
caused the problem and are financially able to pay. It would 
limit manufacturers' and refineries' responsibility for certain 
gasoline additives like MTBE and would take them off the hook 
for participating in the cleanup there.
    So there are many reasons why we're concerned.
    Of course, reports of the most recent study on the NPDES 
raised concerns that I know the Assistant Administrator, Mr. 
Suarez, is going to address and give us some information on.
    I understand, Mr. Suarez, that the analysis was done as a 
tool for managing the NPDES majors program based on performance 
data. I applaud the efforts of the EPA for this periodic 
review, improved data collection and utilization, and efforts 
for continual improvement. We would like to explore during the 
context of the hearing just how that's being done.
    This hearing was requested to examine the report's 
offerings, and to assess EPA's commitment to the enforcement of 
the Clean Water Act and its plans on how it intends to do so, 
particularly in view of that report.
    We look forward to hearing answers to questions on a number 
of issues, such as the data quantity and quality; the effect of 
penalties on compliance and deterrence; any need for 
clarification as to whether extreme exceedances of toxic-water-
quality-based permit limits are the result of unachievable 
limits due to technology availability or costs; what is being 
done about Federal facility significant noncompliance cases; 
and what are the reasonable interpretations of data and the 
correct measures to follow such slowing or declining 
enforcement activity, and how has that impacted the deterrent 
effect of your agency.
    Data seems to show that most of the States and regions with 
the lowest activity levels of enforcement also have the lowest 
rates of overall compliance; and we want to discuss whether or 
not that suggests a positive relationship between the EPA and 
State enforcement activity and compliance.
    We also want to know, Mr. Assistant Administrator, what we 
are to make of the administration's fiscal 2004 budget proposal 
that would cut 54 full-time enforcement positions, and what 
effect that would have on the things we're going to talk about 
today.
    So, Mr. Chairman, I want to thank you for scheduling this 
hearing, and for having it here. I want to thank all the 
witnesses in advance and thank them for joining us; we look 
forward to your testimony.
    Mr. Ose. Thank you, Mr. Tierney.
    As I said at the outset, we historically have always sworn 
our witnesses.
    Gentlemen, if you would please rise and raise your right 
hands.
    [Witnesses sworn.]
    Mr. Ose. Let the record show both witnesses answered in the 
affirmative.
    Our first witness today is the Assistant Administrator for 
the Office of Enforcement and Compliance Assurance at the 
Environmental Protection Agency.
    Mr. Suarez, you're recognized for 5 minutes.

STATEMENT OF JOHN P. SUAREZ, ASSISTANT ADMINISTRATOR, OFFICE OF 
ENFORCEMENT AND COMPLIANCE ASSURANCE, ENVIRONMENTAL PROTECTION 
                             AGENCY

    Mr. Suarez. Thank you.
    Mr. Chairman, Congressman Tierney and members of the 
committee, I really appreciate the opportunity to testify 
before you today.
    As you indicated, I am J.P. Suarez, Assistant Administrator 
for the Office of Enforcement and Compliance Assurance at 
USEPA.
    I am here today to report that our water enforcement 
program is on the right track and is protecting our Nation's 
waterways from illegal and harmful discharges of pollution.
    In my testimony today, I would like to provide a brief 
overview for you of the smart enforcement initiative currently 
being undertaken throughout the offices of OECA and explain how 
smart enforcement relates to the water enforcement program.
    I will also provide recent examples of successes in the 
water enforcement program that are helping to improve water 
quality throughout the United States.
    Upon beginning my tenure at the EPA, I launched what we are 
calling the smart enforcement initiative throughout the Office 
of Enforcement and Compliance Assurance Programs at EPA.
    Smart enforcement requires that we use the most appropriate 
enforcement tools to achieve the best outcomes, to address the 
most significant problems as quickly as possible.
    The principle is the culmination of our work and experience 
within the enforcement and compliance assurance program. It 
crystallizes the lessons we have learned over the years into a 
strategy for action.
    Smart enforcement incorporates several key areas. The first 
and foremost priority within the smart enforcement initiative 
is to ensure that we are addressing the most significant 
environmental, public-health, and compliance problems.
    The problems we face range from massive amounts of raw 
sewage being discharged into our waterways, to dangerous 
amounts of air pollution being released from refineries and 
other sources, and everything else in between.
    Within this broad spectrum, smart enforcement focuses our 
efforts on the most significant cases. It forces us to ask, 
where can we make the biggest difference in protecting human 
health in the environment?
    The second component is to measure our enforcement success 
by the actual environmental benefits realized. Not only are we 
looking at the numbers of enforcement actions we could produce 
at the end of a given year; we are asking ourselves the 
question, is the air cleaner, is the water purer, and is the 
land better protected?
    This is our true measure of success: What are the outcomes 
of the work that we do?
    We see this as measuring the real benefits from enforcement 
activity, as opposed to simply counting numbers or beans from 
our enforcement work. Measuring real outcomes, I believe, is 
the most appropriate way to determine whether we are fulfilling 
our obligations to the public.
    The third area of concentration is to use data to make more 
strategic decisions in order to target and discover the most 
egregious violators, and ensure better utilization of our 
resources.
    Over the years, EPA and the States have accumulated vast 
amounts of data. As we begin to analyze this data, we are able 
to uncover valuable intelligence that leads us to the most 
significant areas of noncompliance, so that we can take action 
to address that.
    The fourth area of focus is to continually improve the 
management of the enforcement program. This is done by honestly 
and openly assessing the effectiveness of our current and past 
program activities to ensure continuous program improvement.
    An example of this is the recent OECA analysis of the NPDES 
majors portion of the Clean Water Act. The report identified 
patterns of noncompliance and enforcement activity levels from 
1999 through 2001.
    These types of reports allow managers within OECA to 
improve the program, and ensure that the environment and public 
health are not being compromised. To be successful, we must 
continuously assess our program activities to ensure 
performance and continuous improvement.
    The fifth and final factor within smart enforcement is to 
communicate the environmental, public-health and compliance 
outcomes of our activities more effectively.
    An example of making compliance information readily 
available is the enforcement and compliance history online 
[ECHO] system.
    Through the ECHO system, the public has facility compliance 
history right at their fingertips, online, 24 hours a day, 7 
days a week.
    Making data available to the public increases 
accountability for facilities, and encourages compliance. ECHO 
provides the public SNC data, and further demonstrates the 
EPA's commitment to use data to manage the program and to focus 
on facilities identified with serious violations.
    I'd like to turn now to the specific issue of water 
enforcement.
    We are improving upon previous water enforcement programs 
in EPA. As you mentioned, in February of this year we developed 
a report, ``A Pilot For Performance Analysis of Selected 
Components of the National Enforcement and Compliance Assurance 
Program.''
    The purpose of this report was to identify patterns of 
noncompliance and enforcement activity levels from 1999 through 
2001. The report analyzed the NPDES majors program, which is 
only one component of the water enforcement program.
    Consistent with the principles of smart enforcement, 
support is being used as an internal tool to provide us with 
the information that will help us better manage the NPDES 
majors program.
    The announcement provided OECA managers an opportunity to 
strategically develop recommendations designed to improve the 
NPDES majors program.
    The report showed many things, and I'll be happy to talk 
about that in a moment with you. But, it's important to bear in 
mind that not all facilities that are designated in SNC require 
a formal enforcement action to return to compliance.
    Data show that 49 percent of facilities recover from SNC 
without formal action at all. Also, some facilities in SNC have 
pending investigations and enforcement actions which are 
confidential and are not reflected in data bases at all.
    Our report also analyzed penalty data, but it is again 
important to note that States are not required to submit 
penalty data to EPA.
    I look forward to speaking with you further about the 
results of our report, as well as the other significant 
activities that we are undertaking at EPA to improve the 
enforcement program.
    It is not just the NPDES major program that we're dealing 
with, but a number of other areas; including wet weather, 
stormwater and enforcement. I look forward to that opportunity, 
and I appreciate the opportunity to come here to Ipswich and to 
talk to you all about the great strides we are making to make 
sure that our air stays clear, our water is pure, and our land 
is protected.
    Mr. Ose. Thank you, Mr. Suarez.
    [The prepared statement of Mr. Suarez follows:]




    
    Mr. Ose. For those in the audience, I'd like to repeat, 
copies of the testimony of all witnesses are in the back of the 
room so you can follow along.
    You'll find in our format here that in the 5 minutes 
allotted the witnesses are summarizing their testimony. For 
instance, Mr. Suarez' testimony is actually about 14 pages 
long, and it contains a lot of information that he's not able 
to cover in the first 5 minutes.
    So, for those of you interested in the back of the room, 
there are copies of every witness's testimony.
    Our next witness is a Regional Administrator here in Region 
1 for USEPA.
    Mr. Varney, you're recognized for 5 minutes.

  STATEMENT OF ROBERT W. VARNEY, REGIONAL ADMINISTRATOR, U.S. 
                ENVIRONMENTAL PROTECTION AGENCY

    Mr. Varney. Thank you.
    Mr. Chairman and Congressman Tierney, it's a pleasure to be 
here, and to be in the area where I grew up and learned to 
appreciate the natural resources that are so important to us in 
this country.
    By way of background, prior to becoming a regional 
administrator, I served as the State environmental commissioner 
in New Hampshire under three different Governors of both 
political parties.
    I was president of the Environmental Council of the States 
[ECOS]; and, you'll be hearing from the chair of the 
enforcement committee on the next panel.
    I also chaired the New England Interstate Water Pollution 
Control Commission and chaired the Gulf of Maine Council on the 
Marine Environment. So, water quality has been an area that 
I've been very interested in, directly involved in. I have very 
much appreciated the work that EPA has done over the years in 
partnership with the States.
    As J.P. said--and I want to commend J.P. for his work as 
the Assistant Administrator--we have been a very focused agency 
in terms of trying to promote smart enforcement.
    We know we have limited resources, we know that there are 
competing demands in Congress for those resources, and we know 
that we need to get the very most out of our resources wherever 
possible.
    It's imperative that we direct our resources to areas where 
there are the greatest risks to human health and the 
environment.
    For us here in Region 1, we have focused on both compliance 
activities that are enforcement-related as well as compliance 
activities that are technical-assistance-related. We have 
worked very closely with the States because obviously the 
States are an important piece of the picture, and we share our 
environmental management responsibilities with the States.
    We have quarterly meetings with the States to discuss 
enforcement priorities, to share information, to make sure that 
we're not duplicating our efforts, and to make sure that we're 
getting the biggest bang for the buck environmentally by 
focusing and sharing that information.
    We also have performance partnership grants and performance 
partnership agreements with the States, which again are joint 
priority-setting with the States to ensure that we're all 
focused on the right things.
    The issues in New England are of significant interest to 
us. Wet-weather issues, combined sewer overflows, sanitary-
sewer overflows and stormwater discharges are significant here 
in New England.
    We all know that our CSOs, SSOs and stormwater issues are 
related to the urban infrastructure that we have, the age of 
that infrastructure, and the highly populated villages and 
urban areas that we have--all of which have an effect on water 
quality.
    In this area, I think it's important to note the 
significance of shellfish here in Ipswich, where we have the 
Ipswich Shellfish Co.
    We are concerned about bacteria, and how bacteria and other 
pollutants can affect our shellfish industry, as well as the 
beaches--another important part of our economy in this part of 
the region.
    We have worked very closely with our municipalities on 
these issues. About 70 percent of our CSO issues are municipal 
discharges.
    All told, we have a relatively large number of CSO 
communities, about 120 affecting our beaches, affecting our 
shellfish beds. Also, let's not forget our drinking water in 
our rivers and streams.
    We try to be results-oriented and flexible in the work that 
we do.
    We have tried, for example, to be focused on enforcement, 
but at the same time to achieve our results by being flexible 
and providing communities an opportunity to re-examine issues 
and to look for cost savings and efficiency wherever we can.
    Our efforts are very resource-intensive, and involve a 
great deal of outreach as well as technical engineering work. 
Our work on the Charles River, the Clean Charles 2005 
initiative, I think is a great example, that you'll be hearing 
about more.
    Our College and University initiative, and our Municipal 
Department of Public Works initiative, are both programs that 
promote environmental management systems and self-audits as a 
way to help us increase our compliance rates and activities. To 
combine compliance with that technical assistance gives us the 
greatest benefit to the public and enables us to use our 
resources most efficiently.
    Thank you.
    Mr. Ose. Thank you, Mr. Varney.
    [The prepared statement of Mr. Varney follows:]




    
    Mr. Ose. At this stage, what we will do with our panel of 
witnesses, Congressman Tierney and I will enter into a dialog 
with them, with questions. We'll rotate back and forth.
    At the end of the hearing, there may be questions that we 
think of but haven't asked. The record is going to be left open 
for a couple of days so that we can send those questions to you 
in writing, and you can respond. Obviously, we would appreciate 
a timely response.
    And I'm going to commence.
    Mr. Varney, I'm particularly interested in the issue of wet 
weather events.
    The question relates to the intersection of policy with 
fiscal conditions of the States with the actual physical 
process of how sewage and the like is transported to treatment 
plants.
    What steps has Region 1 taken to work with New England's 
municipal sewer systems to bring them into compliance?
    Mr. Varney. Well, we've used a multifaceted approach in 
working with our municipalities.
    First and foremost, we have tried to work cooperatively 
with the municipalities wherever possible. We also have tried 
to give them realistic timeframes for doing the work that is 
needed.
    An example of that would be many of the CSO communities 
where we moved ahead to implement the most cost-effective 
measures that would achieve the greatest reductions at the 
lowest possible cost, while deferring some of the improvements 
that were less cost-effective and provided less of an 
environmental and public health outcome.
    Mr. Ose. You've taken data collected by the States, I 
presume, analyzed it accordingly, and sought to prioritize?
    Mr. Varney. We would work with the States to prioritize the 
data. We would discuss the prioritization of the data. We would 
go through a ranking system, looking at a series of measures.
    First and foremost would be the risk to public health, the 
volume of the discharge, the total quantities involved, and, of 
course, our measurement of water quality, what we're actually 
seeing in the rivers, streams, and estuaries over time, which 
is a reflection of both our compliance activities as well as 
our enforcement.
    Mr. Ose. The States set the level at which compliance is 
attained; is that correct?
    Mr. Varney. Water quality standards are set by the States.
    Mr. Ose. And the EPA signs off on those at the time the 
plan is adopted?
    Mr. Varney. Yes; and, generally speaking we have fairly 
stringent water quality standards here in New England.
    Mr. Ose. Now, there seem to be significant noncompliance 
issues with a number of municipalities. What's driving that?
    Mr. Varney. The significant noncompliance [SNC], rates for 
our region are a reflection of several factors.
    One of the most important factors as it relates to SNC is 
the fact that some of our limits are interim limits, and some 
of them are seasonal limits; the interim limits are related to 
the fact that we need several steps to be taken in terms of 
improvements to get to those numbers.
    Then we also have seasonal limits, which are another 
factor; and the States have chosen to select standards that are 
fairly difficult to attain, and we have worked with communities 
over time to move forward on those.
    In cases where we have significant impact to public health 
and the environment, as well as a whole series of other factors 
that we look at in our prioritization scheme, we would, in 
conversation with the States, select those items that are the 
top priority.
    Mr. Ose. I didn't quite understand that.
    There are 45 of 50 States that are basically self-
monitored; two of the remaining five States are New Hampshire 
and Massachusetts, in terms of administering an NPDES program. 
Is that correct?
    Mr. Varney. Yes.
    Mr. Ose. Before I leave this point, what are the other 
three States?
    Mr. Varney. There are six States in New England: Maine, New 
Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut.
    Mr. Ose. All of which rely on EPA for the administration of 
the NPDES program?
    Mr. Varney. Yes. We are the ones that actually issue the 
permits in Massachusetts and in New Hampshire, but do so 
jointly with the States; as we just recently did on the Brayton 
Point permit in Somerset, MA.
    Mr. Ose. I think it was in your testimony that there was an 
example cited of a CSO or SSO that was being redesigned for a 
2-year storm. How do you determine that the 2-year storm is the 
threshold to utilize?
    Mr. Varney. The factors that we would use would be 
determined in discussion with the State and with the local 
community, and with the consulting firms that they have on 
board.
    What we would be trying to do is to minimize the number of 
situations whereby you would have unhealthy levels of bacteria 
in your river on a frequent basis.
    An example of that would be a hot summer day, at say 95 
degrees, with elevated levels of bacteria in your waterways due 
to a rain event the day before.
    Obviously, we're trying to minimize and eventually 
eliminate those discharges through a comprehensive approach, 
working with the local community over time and within, 
obviously, the resources that they have to reduce and 
eventually eliminate those discharges.
    And there is no single approach that's used. It's a 
multifaceted approach, involving stormwater as well as CSO and 
replacement of some of the aging infrastructure.
    Mr. Ose. Mr. Tierney.
    Mr. Tierney. Thank you, Mr. Chairman.
    Mr. Varney, before we leave that subject on the CSOs and 
the SSOs, you indicated that part of the problem with 
significant noncompliance was the fact that there were interim 
and seasonal standards to meet or whatever; but, I suspect what 
my communities would tell you is that it's money. Have you 
heard that?
    Mr. Varney. Yes. I've heard that many times.
    Mr. Tierney. Basically, what we're talking about is money?
    Mr. Varney. Absolutely.
    Mr. Tierney. There was a day when the Federal Government 
used to participate somewhat significantly with CSO funds and 
SSO funds and other clean-water issues; and we've seen a 
retreat from that for a few decades.
    What would your impression be if there were ample resources 
among the State and the Federal Government and the local 
communities? I think we would be doing a better job, would we 
not?
    Mr. Varney. Yes; it would move faster, I would expect.
    Mr. Tierney. Mr. Suarez, thank you for your testimony here 
today.
    Let me just cover some ground. I promised somebody that 
called from a radio station this morning that we would try to 
do this in English, try to break it down. We'll try not to have 
too much alphabet soup, and try to make it simple.
    The permit compliance system you have, the PCS data base, 
identifies violators from the discharge monitoring reports of 
the facilities.
    So if facilities file discharge monitoring reports to the 
EPA and to the State, it's sort of a self-monitoring type of 
situation; am I right?
    Mr. Suarez. That's correct.
    Mr. Tierney. With respect to the major facilities, as 
described by the chairman earlier, the reports include 
information on what the facility has discharged into the water 
over a specific period of time.
    Mr. Suarez. Correct.
    Mr. Tierney. And, they're required to be filed periodically 
to either the EPA or the States, depending on who does it; and 
then they're used to identify where the violations are.
    So my question to you is, how helpful are those reports at 
identifying violators, and are we confident that this self-
reporting is accurate and it's working?
    Mr. Suarez. The discharge monitoring reports that you 
referred to are incredibly important to us when we evaluate the 
compliance of a particular facility; and we use those regularly 
to evaluate the effectiveness of compliance and enforcement 
efforts across the Nation, through all 50 States.
    They are the backbone of the water enforcement program, as 
far as I'm concerned.
    The data quality is good. There are some data-quality 
issues in a number of States. Some of that is input.
    Actually, Mr. Tierney, there are some States that are 
moving a little bit faster in upgrading their computer systems; 
and, there's a communication difficulty with EPA's system and 
the States'.
    We have put money and resources into designing what we're 
calling bridgeware. That allows the States to move ahead, and 
our system will catch up. We're trying to do that as quickly as 
possible so that the data quality does not suffer and is not 
compromised as a result of different systems.
    But at the end of the day, this administration has asked 
for more money to upgrade and modernize PCS so that it will be 
able to communicate with all 50 States. Data quality will be 
better than it is now, though it is good now.
    Mr. Tierney. Are you aware of any analyses that have been 
done concerning the reliability of these discharge monitoring 
reports, or do you plan to do any, so we have some sort of data 
to indicate to us just how much of this self-reporting is 
accurate and how much is not?
    Mr. Suarez. I am not specifically aware of any analysis 
that's been done to go underneath the reports to determine 
independently whether or not the monitoring is accurate.
    Much of this monitoring is a regular, continuous monitoring 
system that's in place at the facility; so, it's data that is 
just uploaded and submitted to us.
    So again, I think from my perspective what I would focus on 
is those facilities that are failing to meet the permit limits, 
failing to meet water quality guidelines and standards, and 
addressing efforts there; because, we have pretty good 
confidence in the discharge monitoring reports.
    Of course, if there were a concern brought to our 
attention, since there have been instances where certain people 
falsify records, we will take appropriate action, and swiftly, 
against those entities' operators.
    Mr. Tierney. And we're relying on people to report that has 
been happening, as opposed to some analysis generally on the 
accuracy of them?
    Mr. Suarez. Or we will look at inconsistencies. Let's use 
an example.
    If there is a series of exceedances over a number of 
months, when the exceedances come back into the permit level 
we'll engage in a conversation with the States, and ideally 
with the facility. We'll say, what happened? What would cause 
you to go from all these exceedances back into compliance?
    And if there is any concern that's raised concerning the 
veracity of those DMRs, we'll take a look.
    Mr. Tierney. Earlier this morning there was reference to 
the waterways advocacy groups.
    The issue was raised that we all understand you're focusing 
on the violations of major facilities, but we also have 
discharges coming from minor facilities as well. What 
information do we have that's currently available in terms of 
the minor NPDES facilities and how much they're currently 
discharging?
    Mr. Suarez. That data is available publicly; and there are 
links available on the ECHO Web page, actually, where the 
public can access that.
    Mr. Tierney. Will you tell us what ECHO is, again?
    Mr. Suarez. Yes; I apologize.
    That's a system that we put on line last year. It is an 
enforcement and compliance history online data base that allows 
the public to access our enforcement history of over 800,000 
regulated facilities, and to look at their compliance history, 
their compliance with their permits--be they air or RCRA or 
Clean Water Act--and to download that information if they want 
to, and to do a number of different queries of the data base.
    Mr. Tierney. And that's the minors as well as the majors?
    Mr. Suarez. There is information for minors there as well.
    Mr. Tierney. These facilities that receive permits that 
allow them to legally discharge certain amounts of effluent----
    Mr. Suarez. Yes; that's correct.
    Mr. Tierney [continuing]. Do we know how much pollution is 
legally emitted into our waterways? Is there any record of 
that?
    Mr. Suarez. We have looked at some trends in terms of 
trying to gauge the amount of the loadings.
    I can't tell you today, Mr. Tierney, what that number is; 
but I'll be happy to go back and see if my staff can give you a 
better number.
    Mr. Tierney. Would you do that, please?
    Mr. Suarez. Yes, I'd be happy to do that.
    Mr. Tierney. Thank you.
    The report that we talked about earlier, the NPDES majors 
report, is an analysis of one component of your work. I think 
both of you mentioned that in your testimony. We have other 
areas.
    Do you anticipate that you're going to do the same sort of 
internal analysis on wet-weather areas; the CSOs, the sanitary-
storm overflows and the stormwater?
    Mr. Suarez. It is my expectation, Mr. Tierney, that we're 
going to do this type of evaluation for all components of the 
enforcement program; and the obvious next progression in areas 
of water enforcement would be areas of wet weather and so 
forth.
    Mr. Tierney. Do you have a timetable on that?
    Mr. Suarez. We're hopefully going to start the next wave of 
analysis, and to get it into final form. We just started. We 
hope to get that process underway shortly.
    Mr. Tierney. How long does a report like that generally 
take for the department?
    Mr. Suarez. To give you an example, the NPDES majors 
performance analysis, I authorized that soon after I was 
confirmed, which was in August; so I think it was around 
September I authorized it, in 2002, and in February 2003 it was 
produced.
    It will take some time, because there is significant 
consultation with the regions and the States to make sure that 
we get it right, and that we do appropriate analysis.
    So it takes a little bit of time; but once we have it in 
hand we use it. We have been using it since we've gotten it.
    Mr. Tierney. Now, would you do the other analysis 
simultaneously, or would you do it progressively?
    Mr. Suarez. Because of resource limitations, I think we 
would probably do them serially rather than simultaneously.
    Mr. Tierney. Now, the report talked about the quality and 
quantity of some of the data in the report. With respect to the 
majors, it talked about needing more quality data on compliance 
incentives, compliance assistance, capacity building, responses 
to citizen complaints, and outcomes from monitoring.
    Do you agree with that assessment, that more work needs to 
be done there?
    Mr. Suarez. I do.
    Mr. Tierney. Can you tell me, if that's the case, what 
burden then would the regional administrators and the States in 
fact incur in order to do that kind of work?
    Mr. Suarez. Yes, Congressman.
    One of the most important things that we believe in, that I 
believe in, is that in order to measure the program we must 
measure its effectiveness across all areas; not just the 
enforcement, but the compliance areas as well.
    So, what we are trying to do is to develop systems whereby 
we can gauge, how effective is compliance; is it changing 
behavior that results in improved waterways; is it changing 
processes to result in less emissions being produced as a 
result of compliance rather than as a result of a traditional 
enforcement action?
    We have an Office of Compliance in our shop that is 
developing a number of these types of, we'll call them tools, 
but really protocols, on how you go about measuring compliance 
assistance.
    Once we develop those, we push them out to the regions; and 
we ask the regions to start working with the States to develop 
those, to improve those, to make sure that we're capturing that 
information.
    It is a process. I'll tell you that we're in the process 
now of capturing better outcome measures for traditional 
enforcement actions, and we're moving into the compliance area. 
It takes time; but the results, I believe, are something where 
over time we will see a better measure of how effective our 
work is.
    Mr. Tierney. One of the difficulties, I understand, in 
drawing conclusions on the effects of penalties was the lack of 
data coming in from any of the States. Is that still the case?
    Mr. Suarez. The data is not required right now to be input 
by the States, so it is spotty. We believe that with a 
modernized PCS system----
    Mr. Tierney. PCS system, again, being?
    Mr. Suarez. I'm sorry; permit compliance system--with a 
modernized permit compliance system that data will be entered 
into our data bases, and we'll be able to do some critical 
analysis along the lines suggested in the report.
    Mr. Tierney. Are you going to require that voluntarily; are 
you going to change a rule or regulation, or are you going to 
need legislation to do that?
    Mr. Suarez. We're going to do it by our guidances in our 
policies.
    Mr. Tierney. And you're confident that will get you the 
information you need?
    Mr. Suarez. We think so.
    Mr. Tierney. Now, there was some mention in the report 
about the effective date for that work being done being 
postponed. Was that resolved; and when do you expect that to 
occur?
    Mr. Suarez. We are currently on schedule to have permit 
compliance system modernization, the first phase, up and 
running by December 2005.
    The President's budget includes a request for $5 million, 
which would keep us on track. We have just completed the 
detailed design phase, I think it closed on September 30, where 
we solicited comments from the regions, States and stakeholders 
about what could be done with our detailed design.
    I say that all in background, Congressman, to tell you, 
assuming that funding continues in place for 2004, 2005, 2006, 
we think we are on track to meet our deadlines now.
    Mr. Tierney. I happen to think, and I agree with the 
chairman, that it's important to know what the effects are of 
enforcement, of assistance to violators, as well as the 
penalties. We've got to get some grip on which is more 
effective or, used in tandem, how we balance them and move 
forward on that.
    One of the questions that was raised in the report--and 
again, some of these are tongue-twisters--we were talking about 
the most extreme exceedances of toxic-water-quality-based 
permit limits.
    We want to know whether or not those exceedances were just 
the results of lack of a technology that was available, or was 
it strictly a cost issue, or was it some combination of those. 
Have you been able to get an answer to that?
    Mr. Suarez. We're in the process of doing just that, Mr. 
Tierney.
    What we have done has resulted in the report. One of the 
recommendations in the report was to use the data to help us 
look at things like toxic exceedances over a certain percentage 
threshold.
    What we have done is we have created a document that will 
be used to help us manage the program called Watch List. The 
Watch List has incorporated this type of information where we 
will identify what we will call the sort of possible facilities 
that might be a persistent problem.
    If it has an exceedance of over 1,000 percent, I can tell 
you it will be on that list.
    The Watch List, then, is not a targeting tool, but rather a 
management tool whereby we engage the States in conversation 
about what is the problem. Is it a technology problem, is it a 
permit-limit problem, or is it a compliance problem at the 
facility?
    Once we make that determination, we then can determine what 
we need to do to address that problem, to bring that exceedance 
down to where it needs to be.
    The result of those conversations will be some enforcement 
work. There will be more conversations with the Office of Water 
about what kinds of permit limits are in for some of these 
facilities, and what kinds of compliance assistance we need to 
do to get these facilities to bring the levels back down.
    It's going to involve all of that, but it's going to help 
us manage our information and our program.
    Mr. Tierney. Are you going to make the Watch List 
information public?
    Mr. Suarez. It is not our intent to make it public.
    Mr. Tierney. Why not?
    Mr. Suarez. Because it is a management tool. We need to be 
able to look at that information, evaluate it, and have a 
reasoned discussion with the States about what the path forward 
is for some of the facilities on the list, without it being a 
target list. That's fundamentally not what it is.
    We believe there is a vast amount of information available 
to the public to get a handle on what may be happening or may 
not be happening at the facilities in their neighborhoods.
    Again, I point you back to the enforcement and compliance 
history online system, which is something we launched in 2002 
of last year, November 2002; and it's now final.
    We think it is critically important that we be able to have 
candid and probing discussions with our States. Our concern is 
that using the data that we have on our Watch List and making 
that public will force reactions that may not be in the best 
interests of where we need to put our resources.
    Mr. Tierney. You think that outweighs the benefits that 
might be gathered from having the public be aware that an 
entity is on the Watch List, and having their scrutiny and 
their observations play a role?
    Mr. Suarez. I do because, again, the presence of a facility 
on the Watch List doesn't mean that it is targeted for 
enforcement action.
    I think that would be a concern on our part. I don't want 
to speak for the States. Mr. Thompson is here, and he can 
address that. I believe, however, that there will be a concern 
on the States' part that there will be an expectation that an 
enforcement action will follow when a facility is on the Watch 
List.
    Because it is a management tool, not a targeting tool, that 
may not be the case. There may be reasons why the facility is 
there that have absolutely nothing to do with the lack of an 
enforcement presence or awareness of a problem at the facility.
    So we can believe we can manage a program with the Watch 
List best by having a dialog with the States, and then 
addressing the problems going forward. The public still has the 
information that they need to make their decisions.
    Mr. Tierney. Thank you.
    Mr. Ose. I read the testimony about the Charles River, 
which I thought was very fascinating.
    You have established a process by which there are 87 
monitoring stations, and you can track virtually on an hour-by-
hour, day-by-day, week-by-week basis trends of the water 
quality in the river, and if there is an anomaly or something 
you can then go to the point where the anomaly surfaces, so to 
speak, and then start looking.
    And I actually think that you have in fact gone and done 
some CSO investigations in this manner.
    I think that probably one of the great lessons of the 
project itself is that by actually measuring water quality 
you're able to, if you will, reverse course and find the source 
of any pollution.
    What efforts has EPA made to expand the use of these 
performance measurements to manage other aspects of the water 
program, either of you?
    Mr. Varney. Well, on a regional basis and on a national 
basis, we've been emphasizing watershed approaches in our work.
    We had an initiative in which there were 20 watershed 
grants that were distributed all across the country, similar to 
the Clean Charles initiative, to encourage this kind of 
holistic thinking using a results-based approach to improving 
the water quality and setting a high bar for fishable/
swimmable, and then measuring our progress over time toward the 
achievement of that goal in the river, as opposed to only 
focusing on the facilities along the river.
    And what it's been able to do for us is to enable us to 
better prioritize our work, and to identify areas where there 
were aging-infrastructure problems that were seriously 
contributing to our difficulties.
    That enabled us to work very closely with the watershed 
groups, not only with the States but the watershed 
associations. I believe you'll be hearing more on a later panel 
about that.
    I want to emphasize that this partnership is not only with 
our State agencies, but also with our watershed groups who are 
out there on the river helping us monitor, helping us identify 
problems and bringing problems to our attention so that we can 
get them corrected.
    We've used a compliance approach as well as an enforcement 
approach, and have focused on all the contributions, which 
include non-point sources of pollution, not just the larger 
discharges.
    Mr. Ose. Mr. Suarez, do you have anything to add?
    Mr. Suarez. I would say that we are fundamentally 
continuing to look at ways that we can integrate the strategies 
so that we have compliance assistance and enforcement.
    I point to our CMOM program--yet another acronym, and I 
apologize--capacity management operation and maintenance, at 
CSOs.
    This is a program designed to work with municipalities to 
identify ways in which they can improve their CSO and SSO 
problems by undertaking an evaluation of their combined sewer 
system or their sanitary system and looking at what types of 
management and O&M steps they can take to improve short of 
having to invest significant capital in the design and 
implementation of a long-term control plan, requiring building 
of all sorts of new things.
    The CMOM program has proved effective in our Region 4. It 
is one that we are rolling out to all the other regions that 
have significant CSO and SSO problems; and it is just the kind 
of strategy I think you're referring to, Mr. Chairman.
    Mr. Ose. It's interesting how technology's advances have 
allowed us to accomplish so many things.
    Across the street from my house is a creek. One of the 
projects at the magnet high school down the street is that they 
monitor the water quality at various points along the creek.
    Now, the ECHO system I believe, if I'm correct, is 
basically an online ability to post whether or not a facility 
is compliant. I wonder whether or not it's possible to take 
that and tweak it so that it can track watershed compliance.
    Mr. Suarez. I believe we have a link to our list of 
impaired waterways on the ECHO and compliance Web page, or that 
through our Web page you can get a list of impaired waterways; 
and so there is a way to link them up. It may not necessarily 
overlay from one data base or another.
    That is something I can take back to our guys and see if 
there is the ability to do that. Because, I will tell you that, 
when we look at targeting and prioritization of where we need 
to take our work, being an impaired waterway is a critical 
component for us to determine where we want to spend time and 
our resources.
    Mr. Ose. The reason I ask the question is that, in 
Sacramento as well as here in Ipswich or Peabody or Boston or 
wherever, I know there are individuals who are very interested, 
who have worked as volunteers in different organizations, who 
would be able to then do the monitoring, if you will, on this 
watershed or that, to provide the data electronically.
    One question I do have is relative to a watershed's 
monitoring.
    If you think of the Charles River project as the template, 
are there limitations to its applicability? In other words, is 
there a river too large or a watershed too small for that to be 
used?
    Mr. Suarez. Mr. Chairman, I'm not aware of any limitations 
other than resources and simply the vastness of this great 
Nation.
    We have only evaluated about 40 percent of the waterways in 
the United States. That is my understanding of what the numbers 
are. So there is just a tremendous number of waters in the 
United States that are still not even evaluated for us to be 
able to undertake that kind of analysis that you are referring 
to.
    I'm not aware of any limitation technologically that would 
impede us from doing that kind of holistic watershed monitoring 
that was referred to that was undertaken in Region 1.
    Mr. Ose. I'll be turning it back to Mr. Tierney here in a 
second.
    The types of measurements that you used, for instance, on 
the Charles River, the mercury testing for coliform fecal 
matter and your testing for algae, are there specific tests 
that are precursor indicators of impaired waterways?
    What I'm trying to do is build into the record something 
that somebody who might be in Santa Fe, NM might read at some 
point and say, maybe I'll try this.
    Are there points of attention, if you will, that 
particularly highlight an impaired waterway?
    Mr. Varney. Let me just add a couple of things to what J.P. 
said.
    One is that there are different data bases that exist; and 
one of them is called STORET, which contains water quality data 
on a site-specific basis.
    Just as I was leaving the State of New Hampshire, we were 
involved in establishing a data base that was location-
specific; if you owned a home on a specific lake or were 
interested in a certain segment of a river, you could click 
onto that and then call up all of the water quality data that 
had been collected for that lake or pond or river segment. That 
would indicate what the water quality was in that area, all the 
parameters that were tested and who tested it, whether it was 
State staff or whether it was volunteers through a watershed 
association.
    So there are some other data bases that come into play that 
would be of significant use to watershed organizations and to 
help identify place-based approaches that make sense.
    Also, our approach has increasingly become related to non-
point sources of pollution; because as we have reduced the 
number of point-source discharges and the severity of the 
point-source discharges, which tended to mask the non-point 
sources that were out there, we're now finding that these non-
point sources are more easily identifiable, because we've 
reduced the pollution coming from these larger point sources so 
much and so significantly.
    This has enabled us to undertake a whole range of new 
techniques.
    For example, in some of our beach activity we're doing work 
that is DNA-type testing to identify different types of 
bacteria, and what the source of that bacteria was; was it from 
human fecal matter, was it from ducks, was it from dogs or 
pets, was it from stormwater runoff.
    The real key has been to not only increase our monitoring, 
as we've done for all of our beaches in this country and to 
provide that information to the public, but to also trace it 
back to the source.
    By being more consistent in tracing it back to the source 
and pinpointing the problem and dealing with that problem, 
we're able to achieve much more environmentally for less cost, 
and to be much more effective in working in partnership with 
local communities and with local watershed groups.
    Mr. Ose. Congressman Tierney.
    Mr. Tierney. Mr. Suarez, according to the reports the 
average penalty on violators is around $5,000. The civil 
penalty could be up to $25,000 per day.
    I'm curious to have you tell us why the penalty average is 
so low, and what effect, adverse or positive, you think that 
might be having on the present amount of deterrence.
    Mr. Suarez. One thing I want to reiterate before I go 
further is that the State data is incomplete. We do not require 
that currently.
    So I'm reluctant to draw any large conclusions because of 
the lack of data that we have on State enforcement, which 
constitutes 75, 80 percent of the overall national enforcement 
information that we have.
    We do have the EPA data that we do enter, and that is 
consistent with where the State data was coming out of; you 
correctly identified that $5,000. That is a number that I think 
bears future scrutiny.
    We are doing that, and one of the recommendations in the 
report has asked what is the cause for this fairly constant 
what I would call modest penalty amount of $5,000 or $6,000 for 
a violation.
    We are going back to look at whether or not there is 
appropriate escalation, which is one of our enforcement 
response policy requirements, that a facility doesn't start at 
$25,000 or $27,500 a day, but rather we escalate in the event 
that there is a repeat offense.
    We are going back and looking at facilities to see if there 
are repeat violations, and providing for escalation of fines 
and enforcement responses. We're also looking at seeing if 
there is a connection between the dollar amount of a penalty 
and the behavior of individuals.
    I will point out that this past year we had the largest 
Clean Water Act penalty ever assessed against a company in the 
United States.
    That was a $34 million penalty against Colonial Pipeline 
for an oil spill that impaired a number of miles of rivers and 
streams, and had a number of incredibly significant 
environmental impacts.
    That penalty certainly gets the attention of everybody; and 
lets them know that, if you violate the Clean Water Act, there 
are serious consequences on the penalty front for doing so.
    Mr. Tierney. It will also get your averages up there a 
little bit.
    The report also talks about the decline of enforcement 
activities, in the last few years before it was issued, of some 
45 percent.
    You reacted to that, I believe--don't let me misquote you--
I thought you said that a lot of that was attributed to the 
fact that you were shifting some of your emphasis to other 
enforcement areas.
    My question is, shouldn't the EPA have enough resources to 
focus adequately on both of these areas?
    Mr. Suarez. How we manage our resources is always, I think, 
going to be one of the challenges for my office.
    Under the President's request we have 3,411 full-time-
equivalent employees, and we have in this most recent budget 
requested from the President over $500 million in resources for 
us.
    I think for us the goal is to make sure that we are putting 
our resources in the right place.
    I don't necessarily believe in bigger government, I believe 
in better government; and if we can use our resources more 
effectively, then I want to do that.
    But if, Mr. Tierney, at the end of the day we don't have 
adequate resources, I am very comfortable going to my 
Administrator and asking for more resources when needed.
    Mr. Tierney. Shouldn't we be a little concerned, though, at 
being asked to make a prioritization between one of these areas 
and another?
    I would suggest maybe a review has to be done sooner rather 
than later. The 45 percent decline that we have heard mentioned 
is a precipitous decline on any basis, and I think it is going 
to come down to resources. I'd like to have further interaction 
with your office on that as we go forward.
    By our calculations, it looks like the administration is 
looking to cut 54 enforcement positions. What's the effect of 
that cut going to be on this region? In one previous letter, 
you may recall that you indicated that you were in fact 
studying consolidation or changes in your field offices.
    I'd be really interested in knowing what that study shows. 
Are you really thinking of closing down some field offices and 
consolidating them? How does that affect our region; how does 
it affect compliance there? All of those issues, I think, are 
related.
    Mr. Suarez. As to the notorious 54 FTE, I apologize, but I 
think a little background here is helpful.
    When the President submitted his budget request last year, 
I believe we were operating under CR. We didn't have a final 
budget in place yet. The President's increase was for a 100 
increase in FTE.
    Subsequent to that, Congress gave us 154 FTE for the 
operating plan. The result of which is that now we are faced 
with a budget that looks like a 54 decrease in FTE rather than, 
as the President intended, a 100 FTE increase in his budget.
    We will use however many resources we get. We are trying to 
operate at full capacity; and with more resources, absolutely 
there is more work to be done. We feel comfortable right now 
that our most important strategy is to look at the employees 
that we have, and where we're putting them.
    As to consolidation, I believe you're referring to, Mr. 
Tierney, our criminal program----
    Mr. Tierney. Right.
    Mr. Suarez [continuing]. And we are in the late stages of a 
review of our criminal program.
    I've asked a senior member of my staff, who is not a 
political appointee, to undertake that evaluation for me. He 
has been doing a fantastic job. We anticipate that report will 
be concluded in November, and one of the issues that will be 
addressed there is whether or not consolidation of offices is 
appropriate and would allow for more effective use of our 
criminal enforcement program resources.
    Mr. Tierney. So it's premature to tell us how it would 
affect our region?
    Mr. Suarez. Yes, it is.
    Mr. Tierney. At one point in our communication back and 
forth, you indicated that having 1,500 uncompleted 
investigations was normal. Do you still hold that position?
    Mr. Suarez. Again, I don't mean to quibble with 
terminology, but we have differences for a case open as opposed 
to an investigation started.
    In order for an investigation to be opened, if you will, it 
can involve perhaps something as vague as an anonymous letter 
that comes into the agency saying XYZ facility is polluting in 
violation of their discharge permit. We may have nothing else 
to go on.
    We'll open up that matter, but it won't become a case 
initiation until we've dedicated a certain amount of time, or 
there is credible evidence that would warrant further 
investigation.
    That level of open investigations has been fairly constant 
over the years, and is to be expected. We want to address that 
because we don't want them to stay open that long----
    Mr. Tierney. Some of them could be pretty important or 
significant.
    Mr. Suarez. Some of them may be; when they're that 
important a full case will be opened and initiated, and we'll 
move from there.
    I'll note that last year we had the highest number of cases 
initiated ever in the history of the criminal enforcement 
program.
    Now, a fair number of those were counterterrorism-related 
in response to September 11; but even our core program had over 
480 cases initiated in the criminal program. That is one 
measure of how active we are.
    I think that the answer, Mr. Tierney, is that we are very 
active. Some of those investigations turn into cases and some 
don't.
    Mr. Tierney. Just to wrap up, I know the chairman has more 
questions, but we were talking about 154, 100.
    There are many of us who believe you could use quite well 
154. That's compliments to you and Mr. Varney and the people 
that are working there.
    We don't want to have you form priorities where enforcement 
drops 45 percent in one very important area because you have to 
switch resources over to another equally important area, just 
to make that my position.
    Mr. Varney. Thank you, Mr. Tierney.
    Mr. Tierney. Let me just wrap up, then, with a couple more 
questions I wanted to cover.
    One was the Federal Facilities Significant Noncompliance 
rate. The report indicated it was some 5 to 15 percent higher 
than other facilities. I'd really like to just talk briefly 
about, what can we do about that?
    Is it just because of the infrastructures deteriorating in 
those areas, or the funding for infrastructures not being 
there? What do you have in mind to deal with that, short of 
penalties?
    Mr. Suarez. I think, Congressman Tierney, that the aging 
infrastructure is a critically important issue that the Federal 
facilities must address.
    Just as the communities in Region 1 are facing challenges 
because the infrastructure is old and capacity is not there to 
meet the growing demand, so too in our Federal facilities we 
have expanding services, and we're just not able to meet some 
of the capacity that is there.
    Some of the things we are doing is, we are providing more 
compliance assistance to our Federal partners, so that they 
understand our obligations; more importantly, they understand 
what it takes to get a facility into compliance.
    We have just launched an effort to upgrade and improve our 
Federal Facilities Compliance Assistance Center, which is a 
Web-based system which would allow our Federal partners to go 
in, look at our data base, look at their problems, and figure 
out how to correct them.
    We are upgrading that system. It's an important system, and 
it's one that will help.
    We are also in the process of undertaking some, for want of 
a better word, audits of our Federal Facility partners where we 
will be invited in--it's not an inspection; it's an audit--to 
evaluate their facility and to look at where improvements can 
be made in order to get the facility back into compliance.
    We've had a number of takers. Our success rate has been 
terrific.
    We are again inviting our Federal partners, letting them 
know that there are resources available to them. It's not 
adversarial, it's cooperative; and, we think we're going to get 
some good results there as well.
    Mr. Tierney. I'm going to telescope some of these things 
down.
    I assume you took the report, and you're going to address 
all these issues in it?
    Mr. Suarez. We are.
    Mr. Tierney. Issues of penalty and escalation, you 
mentioned earlier. I think those are very important to look at 
to see what the effects of those are.
    Do you agree that at this point at least there appears to 
be a positive relationship between what EPA or the States do in 
enforcement activity and compliance?
    Mr. Suarez. I think that there does seem to be a 
correlation.
    Mr. Tierney. I think there is, too, and I'd like to see a 
report come through about what we're going to do about it.
    What do you make of the fact that the report asserts that 
facilities that are subject to formal action have the highest 
rates of recidivism; which I think is a bit of a twist on that?
    Is that because we're getting problem facilities, as the 
report suggested, and therefore you can expect them to keep 
being bad; or, is it because our penalties aren't high enough, 
and they're just sort of laughing at us and carrying on 
business?
    Mr. Suarez. I think it may be those things.
    It may also be the need for us to really embrace the smart 
enforcement initiative; because, oftentimes when we're chasing 
a bean it's very easy for us to go back to a facility that's a 
big, complex facility and know that we're going to be able to 
find a violation.
    It's much more challenging to spend time doing the CSO 
investigation and work that Bob has referred to throughout the 
morning.
    So I think part of it may be that we tend to go back to 
those facilities where the bean is easy, not necessarily where 
the environmental benefit is to be had.
    And I want to look to see if there is a correlation, as you 
spoke of, of whether or not we can use that resource a little 
better.
    If there is really nothing for the facility to do--it's got 
a violation, it's going to have a violation again, it's not 
changing its management process, it's not changing its 
pollution-control equipment, and we're fining them modest 
amounts every year and nothing is happening--we have to ask is 
it escalation, or are we just going to the easy ones and 
ignoring the big problems?
    Some of the things I've seen from Mr. Tierney indicate to 
me that our efforts have oftentimes been directed at getting 
outputs for the sake of outputs, and not getting results that 
matter.
    I'm trying to move us into an area where we can say 
comfortably that our output has produced outcomes that made a 
difference--that we're not going to focus so much on going back 
to those same facilities that are the old tried-and-true, the 
old reliables, we know how to get them, where to find them, and 
ignoring the big ones that are out there polluting and 
impairing the waterways, that would really make a difference.
    Mr. Tierney. But you're going to study what to do about the 
ones that are out there, and that's the escalation issue?
    Mr. Suarez. That's exactly right. There is no permit to 
pollute, if you will; there is no allowance. You're not allowed 
to pay a penalty and continue to pollute.
    But, my instincts tell me that some of it is related to the 
practices that we had historically, and how we need to move in 
a new direction.
    Mr. Tierney. Let me wrap it up, then, with one positive 
note on this.
    I want to thank both of you, and encourage both of you to 
continue on with your issues of environmental justice.
    I know what you mentioned in your testimony is important. 
If you have comments to make on it, that's fine; but, I just 
want to reiterate the fact that I agree with you on how 
important that is, and I want you to come to Congress with any 
suggestions you have about making sure we address that issue.
    Mr. Suarez. Mr. Tierney, I'm delighted that you brought 
this up.
    One of the things we're doing in our next planning cycle is 
to make sure that geographical targeting, to include watershed 
and environmental-justice communities, is part of what we're 
doing.
    I feel very strongly that we must make sure that our 
environmental-justice efforts are begun in earnest, and that no 
community is bearing more than its fair share of the 
environmental burdens.
    It's something that we believe in, that the administration 
believes in, and you've got nothing but our full support.
    Mr. Tierney. I want to thank you both for your testimony.
    Mr. Ose. I want to thank both of you for joining us today.
    We have some questions that did not get asked, but we'll 
send them in writing; and a timely response will be 
appreciated.
    And again, we appreciate your being here.
    We're going to take a 5-minute break.
    [Recess.]
    Mr. Ose. We're going to reconvene here for the second panel 
of our witnesses for today's hearing.
    We are joined on this panel by Steve Thompson, executive 
director of the Oklahoma Department of Environmental Quality; 
Roberta Savage, executive director of the Association of State 
and Interstate Water Pollution Control Administrators; Dr. 
Shelley Metzenbaum, director of the Environmental Compliance 
Consortium; Scott Segal, a partner at Bracewell & Patterson, 
LLP; and, Pam DiBona, vice-president for policy, Environmental 
League of Massachusetts.
    Our next witness is Mr. J. Charles Fox, who is the vice 
president of public affairs for the Chesapeake Bay Foundation; 
and, also Mr. Eric Schaeffer, the director of the Environmental 
Integrity Project.
    As you all saw in the first panel, we have a certain 
elaborate dance we go through; we're going to have to swear you 
all in.
    Now, you have all turned in testimony for today, and we 
have copies at the back. Everybody up here has provided 
testimony to the committee. There are copies of everybody's 
testimony in the back for everybody who wishes to see it.
    Again, our procedure here is we swear you in; and then each 
witness will have up to 5 minutes to summarize. Be assured I've 
read your testimony; I assure you Congressman Tierney has too. 
You don't have to use all 5 minutes, considering the size of 
our panel; it's an unusually large panel.
    [Witnesses sworn.]
    Mr. Ose. Let the record show that the witnesses answered in 
the affirmative.
    Our first witness on the second panel is Mr. Steve 
Thompson, the executive director for the Oklahoma Department of 
Environmental Quality.
    Mr. Thompson, you are recognized for up to 5 minutes. 
Welcome.

   STATEMENT OF STEVE THOMPSON, EXECUTIVE DIRECTOR, OKLAHOMA 
              DEPARTMENT OF ENVIRONMENTAL QUALITY

    Mr. Thompson. Thank you.
    Mr. Chairman, members of the committee, I would like to 
take a moment to explain my understanding of the delegation 
sections of the Federal environmental laws.
    It is my belief that the framers of these acts understood, 
even before it became popular, the phrase ``Think globally; act 
locally.''
    The Federal laws reflect that activities such as research 
and development, nationally consistent standards, rulemaking, 
data analysis and program review are best accomplished at the 
national level; but, that implementation could best be 
accomplished by those closest to the problem, the States, and 
in some cases the localities.
    The Environmental Protection Agency's structure of strong 
regional offices was established primarily to ensure that local 
solutions could conform with Federal expectations.
    Oklahoma's citizens and regulated entities overwhelmingly 
supported us in our delegation effort because, like Congress, 
they understood that solutions could best be achieved at the 
State level.
    Oklahomans also understood that if we chose not to adopt at 
least minimum Federal standards and rules and to make a 
commitment to enforce them, and report our efforts, Oklahoma's 
delegation status could be at risk.
    For national consistency, however, Congress wisely retained 
EPA authority to take enforcement actions where States could 
not or would not take action. With that understanding, I want 
to talk a little bit about Oklahoma's concept of delegated 
enforcement.
    It is a guiding principle of our agency that compliance 
with environmental statutes is our goal; and that enforcement, 
while clearly a fundamental tool, is only one tool. To help set 
the stage, keep in mind that Oklahoma has only two cities with 
a population greater than 100,000, and that 94 percent of our 
communities have fewer than 10,000 people.
    Federal statutes require regulation of facilities that 
discharge wastewater, whether large or small. While important, 
these discharging facilities represent only a portion of the 
total potential impact to water quality and of Oklahoma's total 
effort.
    We have 566 discharging facilities; however, the remainder 
of our total universe of 2,300 wastewater facilities also have 
potential impacts on water quality.
    As in the Federal scheme, Oklahoma's regulatory universe is 
not limited to discharge situations. Any enforcement strategy 
must begin with the approach that the regulated facility, 
whether large or small, is responsible for knowing the 
regulations to which it is subject. ``I didn't know'' is never 
an appropriate legal reason for noncompliance.
    From a practical standpoint, however, many of our 
communities do not possess and cannot afford to employ the 
kinds of technical expertise necessary to understand the 
multitude of Federal and State regulations. This is equally 
true of small businesses that are swept into the inventory of 
regulated facilities.
    The traditional closed-book test, where government relies 
solely on the facility to understand regulation, while legally 
defensible, is not practically defensible; so, we provide open-
book tests, through a number of efforts.
    First, we provide communities with technical operational 
assistance. On the industrial and commercial side, we provide 
targeted outreach by sector. We also authorize compliance 
periods after the outreach to allow the facilities time to come 
into compliance. Then, we inspect. Those who fail to take 
advantage of this opportunity face enforcement.
    Does this reduce the potential for collecting penalties? We 
hope so. Does it increase compliance? We believe so.
    But, obviously, our assistance and outreach efforts cannot 
and do not resolve, or even reach, all noncompliance issues. 
Sometimes enforcement action is necessary.
    A typical enforcement process begins when a violation is 
determined. If that violation is a release that is a 
substantial endangerment to human health or aquatic life, or if 
the violation is a failure to properly operate the facility, we 
will go directly to an enforcement order.
    In many cases the violation from municipal facilities is 
caused by deteriorating infrastructure. In those cases we ask 
for an enforcement report, we schedule compliance, and we 
monitor the completion of that effort.
    I have to tell you that I am extremely reluctant to take 
financial resources away from a community, particularly a small 
community, in the form of a penalty when that funding is vital 
to meet planning and wastewater infrastructure needs. Our 
public-water-supply supervision program is operated in much the 
same way.
    In conclusion, I believe that enforcement should not be a 
separate and independent effort, and was never intended to be 
more than a component of the total regulatory process. We 
strive for compliance as our overriding goal; not annual 
penalties collected.
    We urge the Nation to reclaim the unique roles of the 
States and the EPA in protecting and improving the Nation's 
environment; and we hope that all of you here today recognize 
that the States, despite their ever-shrinking resources, have 
an obligation to protect public health and the environment that 
includes delegated Federal programs, and beyond.
    I'll be happy to answer, at the appropriate time, any 
questions.
    Mr. Ose. Thank you, Mr. Thompson.
    [The prepared statement of Mr. Thompson follows:]




    
    Mr. Ose. Our next witness is Ms. Roberta Savage; and, 
again, she is the executive director of the Association of 
State and Interstate Water Pollution Control Administrators.
    Welcome. I recognize you for 5 minutes.

STATEMENT OF ROBERTA SAVAGE, EXECUTIVE DIRECTOR, ASSOCIATION OF 
  STATE AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS

    Ms. Savage. Thank you very much, Mr. Chairman.
    I have the joy and privilege of being born in Massachusetts 
and raised in California, so that covers both the chairman and 
the ranking member's home States.
    Mr. Ose. You're moving up.
    Ms. Savage. And our association member from Massachusetts 
is a board member, as well as my vice-president for California; 
so we've got it pretty well covered today.
    I would like to thank Danielle and the staff, Mr. Chairman, 
for their fine work and for picking us up at the airport. I 
have really enjoyed working with your high-quality staff.
    I am the executive director of ASIWPCA, a position I've 
held since 1978. I've been in the water business for more than 
30 years; and, like Steve, I started when I was a child.
    And I've had the opportunity to work at EPA, with an 
environmental organization, and with a corporate association, 
again dating back to 1978, which is now 25 years.
    I've also had the joy and privilege of working with the 
framers of the Clean Water Act, Ed Muskie, Howard Baker and 
others, who are the foreleaders of the 1972 statute.
    In talking with those folks about what they envisioned, it 
was very clear that they knew that the program as they created 
it would not be successful unless it was managed at the State 
level.
    I listened to J.P. Suarez, and I listened to Bob Varney. I 
respect them both tremendously; but if you listen to them, it 
sounds like this is a Federal program.
    The fact of the matter is that 45 of the 50 States are 
delegated the Clean Water Permitting program. EPA manages only 
five States. EPA has larger backlogs in most cases than the 
States do; and as J.P. indicated, the enforcement data they 
shared with you is only from five States.
    When Bill Ricklehouse, a former EPA Administrator, was 
asked these questions, he said the most effective enforcement 
and the most effective thing we can do is to reach compliance; 
and to just count numbers and just count beans is not what 
we're about. What we're about is clean water, however we get 
clean water.
    That would mean a number of different things. That's the 
opportunity to educate. When a new permittee comes on line, you 
go and you help them understand what the rules and regulations 
are. If they're having problems, you send your people out 
there; you make sure they understand the requirements.
    You go through the whole range of options administratively; 
and if they're a bad actor, then you litigate. Then you cause 
enforcement to happen, and you make sure that it happens. But 
again, what we're after here is compliance with the statute.
    I'd like to go back because I think Mr. Tierney asked the 
question about what's the system? And again, in talking with 
Mr. Muskie and Mr. Baker, they knew that it had to start at the 
public level.
    So, what's the first thing that happens? The public decides 
how they're going to use their water. They designate their use. 
Then they set a standard, and then determine load allocations, 
so that they can decide how much pollution can go into a water 
body and still meet the standard.
    So then you incorporate those loadings into a permit.
    The next thing is that you make sure that you're monitoring 
your water, so that if anybody is violating a permit you know 
that; and then you have your inspections, and then, if you're 
not doing what you need to be doing, then we litigate.
    But that, to us, is a failure. That's the last thing on the 
list. If the State has to litigate, they haven't done the first 
part of the program correctly.
    In 1990, Mr. Chairman, there were 100,000 permittees. Today 
there are 500,000; and that doesn't even include the new 
Confined Animal Feeding Operations [CAFO] regulations, Combined 
Sewer Overflows [CSO] regulations, and the stormwater 
regulations.
    When all of those things come on line, we're going to have 
hundreds of thousands of permits more than we currently have.
    There are lots of options. We can educate, we can outreach, 
we can track, we can provide grants to local governments, and 
again, we can go ahead and take action if we need to.
    Again, this was never intended to be a Federal program.
    It concerns me that the very issues that our Federal 
colleagues are not doing what they are supposed to be doing--
and I worked for the agency, as many of us here on this panel 
have--like providing the kinds of implementation guidelines, 
providing the kinds of policy regulations, providing the Permit 
Compliance System [PCS] system, a data system that can 
successfully track what we're doing in the field--which we 
don't have; it's inadequate, it's old, it doesn't track the 
data, it doesn't track the toxics that you were asking about, 
it doesn't track mines, it doesn't track CSOs, it doesn't track 
CAFOs--we're asking the States to input all of this data into a 
system that doesn't work.
    I would like to suggest that the Feds are the backstop. 
They're not the pitcher, they're not the catcher, they're not 
the batter; they're the backstop, and they should only be used 
as a backstop.
    I would like to close by saying that there are a couple of 
things that are important here. Forty-five States have NPDES 
delegation, and they only have half of the money they need to 
run these programs.
    When Chuck Fox was the Assistant Administrator, we jointly 
did a GAP analysis of how much is needed to run this program 
successfully. Half of the money we need, we don't have it; it's 
not there. So definitely, the gap is somewhere in the 
neighborhood of $700 million to $800 million. Half of that is 
needed for the compliance and enforcement program.
    We need to close that gap; and I would like to conclude by 
saying that I too concur that the enforcement component should 
be integral to the management program.
    It should not be a separate initiative; it should not take 
away from the overall management of the water program. As 
currently structured at U.S. EPA, enforcement is costly, it's 
inefficient, it's a turf battle; it is not the kind of 
management system that we think we need at the Federal agency. 
It is cumbersome, and it doesn't function well. In short, the 
program and the U.S. EPA structure needs an overhaul.
    So, I will be submitting our monitoring program assessment 
survey for the record, an article I wrote on monitoring for the 
Environmental Institute, and finally our strategic plan, that 
says the goal of the States is clean water everywhere for 
everyone, and that's what we're committed to do.
    Thank you.
    Mr. Ose. Thank you, Ms. Savage.
    [The prepared statement of Ms. Savage follows:]



    
    Mr. Ose. Our next witness is Dr. Shelley Metzenbaum, who 
joins us as the director of the Environmental Compliance 
Consortium.
    Dr. Metzenbaum, welcome. You are recognized for 5 minutes.

   STATEMENT OF SHELLEY METZENBAUM, DIRECTOR, ENVIRONMENTAL 
                     COMPLIANCE CONSORTIUM

    Dr. Metzenbaum. Thank you. Chairman Ose, Congressman 
Tierney, thank you very much for the opportunity to speak to 
you today.
    My comments today focus on a critical but sorely 
underdeveloped aspect of the environmental-protection system, 
the management of environmental information.
    Simply stated, we do not make enough use of information 
that we already collect or information that we could get for a 
small additional cost. As a result, we miss opportunities to 
make the environmental protection system more protective, 
effective and efficient.
    In recent years, EPA and several States have made 
significant developments in this area, but they are the 
exception rather than the rule. That needs to change.
    EPA and the States, hopefully with strong bipartisan 
support from Congress, need to make it a priority to collect, 
analyze and disseminate environmental performance information; 
not just the data, but the analyses as well.
    It is the analysis that finds successful programs which can 
be studied to figure out why they are successful. It is the 
analysis that points to areas that need attention.
    My statement today reflects insights I've acquired as the 
director of the Environmental Compliance Consortium.
    The Consortium is a collaborative effort of State 
environmental protection agencies seeking better ways to 
measure, manage and communicate what they do and what they 
accomplish, especially about their compliance and enforcement 
programs.
    I share with you today my personal views, not the official 
views of the Consortium.
    I want to draw your attention to two promising developments 
in the use of performance measurements; the Clean Charles 2005 
initiative, which Chairman Ose referred to earlier, and OECA's 
recent pilot performance analysis. My written statements 
discusses several other examples of noteworthy developments in 
the States.
    In 1995 the New England office of the EPA decided that the 
piecemeal way it was approaching enforcement did not make 
sense.
    In one geographic area, the Charles River, it decided to 
break away from looking at enforcement on a case-by-case basis, 
and focus instead on improving water quality. The regional 
office set a goal that the lower Charles River would be 
swimmable in 10 years.
    To achieve that goal, it needed to know how clean the river 
was. It found that information, not in its own data bases nor 
in the State's, but on the Web site of the local watershed 
association.
    The watershed association measured water quality at 37 
points along the 80-mile stretch of the river once a month, and 
every month EPA studied the data. In fact, the team leaders of 
the Clean Charles 2005 Initiative are in the room behind me.
    When a downstream monitor showed a worse reading than an 
upstream one, which could not be explained by permitted 
discharge between the two points, that narrowed the search for 
problems to the area between the two points. EPA and the local 
jurisdiction then walked the pipes to find the problems.
    EPA found numerous illegal hookups to the storm sewer 
system and grease balls that were at the juncture between the 
storm and the wastewater systems, routing water that should 
have gone into the wastewater systems, untreated out into the 
river. About a million gallons a day of raw sewage were going 
directly into the river each day.
    When EPA found the problem, it responded with tools 
appropriate to the problem; a warning letter, technical 
assistance, enforcement when it was needed, whatever was 
appropriate to the situation.
    The results of this change in EPA's approach were 
measurable. In 1995 the river was swimmable 19 percent of the 
time. Five years later it was swimmable 65 percent of the time.
    It's worth noting that EPA would never have found these 
problems if it had done its business the traditional way, 
sending inspectors out to permitted facilities; because the 
problems that it found this way showed up in unpermitted 
facilities, which hadn't even bothered to file for their 
permits.
    Now, about EPA's recent pilot performance analysis and the 
Watch List, this is a giant step in the right direction; and 
EPA is to be commended for this work. It's very useful for EPA 
to analyze EPA and State data to find variations that tell 
important stories. EPA should do much more of it.
    As a Federal agency, EPA is uniquely positioned to enhance 
the value of information it and the States collect.
    Unfortunately, this EPA analysis is currently only for 
internal use. EPA may be planning to share this information 
with the States, but not with the public. Limiting distribution 
of this information creates huge opportunity losses.
    I can appreciate EPA's reluctance to make the analysis 
public. Problems will undoubtedly arise when they first release 
it.
    The problems are not likely to be fixed, however, without 
public distribution of EPA analyses on a routine basis. 
Preparing and distributing this sort of analysis should become 
central to the way EPA and the States do business.
    Finally, I'd like to add two cautionary notes.
    First, information does not need to be perfect to be 
useful. Congress and the EPA should not let the perfect be the 
enemy of the good.
    Second, I urge EPA to adopt a performance-focused, 
information-driven way of doing business. An information-driven 
system depends on information. Many current efforts to reduce 
regulatory reporting are counterproductive.
    I thank you for this opportunity to share my views.
    Mr. Ose. Thank you, Dr. Metzenbaum.
    [The prepared statement of Dr. Metzenbaum follows:]



    
    Mr. Ose. Our next witness is Mr. Scott Segal, partner of 
Bracewell & Patterson, LLP.
    Welcome, sir; you are recognized for 5 minutes.

 STATEMENT OF SCOTT SEGAL, PARTNER, BRACEWELL & PATTERSON, LLP

    Mr. Segal. Chairman Ose, Congressman Tierney, thanks very 
much for this opportunity to testify.
    My name is Scott Segal; I'm at the law firm of Bracewell & 
Patterson.
    For much longer than I've ever intended, I stayed in 
Washington representing, corporations, yes; some trade 
associations; and even some non-profits, on various issues of 
environmental policy.
    Special thanks to Mr. Tierney for dragging us out of 
Washington. Ipswich is beautiful, and it's a beautiful day on 
top of that. Which reminds me of my first point, the 
environment in a general sense is getting much better, and we 
should spend a lot more time in it.
    Gregg Easterbrook recently wrote that almost all trends for 
environmental protection are positive. Specifically with 
respect to water-quality trends, he said that toxic emissions 
have declined by 44 percent nationally. Nearly every other 
trend is positive as well.
    In fact, after spending about $100 billion since the 
passage of the Clean Water Act in 1972, about 90 percent of 
Americans live in areas that are served by water systems that 
haven't had a single health-standard violation; so it's a very 
good record.
    The EPA continues to make a strong commitment to 
traditional enforcement mechanisms as well as to compliance 
assurance and programs like the watershed management that 
you've heard about; some of the things Shelley talked about a 
moment ago.
    I don't know what the number of FTEs, full-time employees, 
is that have been requested for enforcement, whether was it 170 
requested or 154 adjusted or what. I'm not really sure.
    All I know is this. Could the number of enforcement 
staffers working on water issues specifically, or working for 
the increase for enforcement issues generally, could that 
number be higher? Yes, it could be higher; absolutely, it could 
be higher.
    But the fact of the matter is, we don't protect the 
environment or enforce environmental programs in a vacuum. In 
terms of what our request was for the 2003 budget, the actual 
number of employees on the Federal payroll in civilian--it may 
be even higher, I suppose--in civilian capacities went up about 
46 percent.
    That's because of all the new people that were hired at the 
Transportation Security Administration; all the people that 
checked our baggage, probably, for those of us who flew in 
here.
    Why do I bring that up? Let's just say that we don't 
protect the environment, or advance any other social policy, 
completely in a vacuum. There are many other things the 
government is trying to accomplish simultaneously.
    I think it's unfair at times to simply observe that numbers 
are down here, numbers of employees are up here, when the 
government is attempting to do so many other things and our 
priorities do change.
    Does that mean that environmental protection is not 
important, or less important? Certainly not. September 11 is 
just a good example of the way in which social policy tends to 
change, and the allocation particularly of Federal employees 
tends to change, over time.
    2003 was the largest increase, in history of this data 
being kept at least, for an increase in the number of Federal 
employees.
    A word on what we're talking about when we talk about 
enforcement of environmental law. Are we really talking about 
simply a Federal program? Ms. Savage knows that's not the case, 
and I want to agree with that.
    No, of course. In fact, Mr. Thompson's predecessor 
testified a couple of years ago from ODQ that in fact it is the 
States which are called upon to do the majority of the work 
when it comes to enforcing environmental laws.
    His predecessor in fact testified that, if EPA begins to 
aggressively pursue national or regional initiatives without 
adequately involving the States, there is serious potential for 
damaging the EPA-State relationship.
    It is not some academic exercise regarding federalism here; 
although it's an important principle, of course. There are 
significant downsides if the EPA-State relationship is 
undermined.
    The practical impact of undermining States can be to slow 
down the rate of settlement of environmental cases by reducing 
the confidence defendants place in the ability of the States to 
be the final word on a given set of facts.
    One practitioner observed, ``From the States' perspective, 
the threat of EPA overfiling State enforcement actions may 
significantly undermine its ability to obtain effective 
settlements with regulated entities.''
    Here's the reason why. The State comes into your place of 
business and says, you have violated the law; we would like to 
sign a settlement agreement with you that stipulates what you 
will do to fix it, and may stipulate a fine.
    If you know that the EPA can look at the same set of facts 
and overfile on the States, then there is simply no sense of 
finality; and it undermines your confidence to want to sign a 
settlement agreement. That's a most unfortunate result.
    There are of course direct downsides to having inflexible 
approaches to environmental enforcement. Eric and I made a 
cottage industry running around the country talking about the 
Clean Air program, which lasted a couple months.
    In that program, pollution-control technologies are 
discouraged from being implemented and being installed if 
people believe they will trigger enforcement action; but I 
promise I won't hijack the hearing to talk about that anymore.
    Mr. Ose. You're right about that.
    Mr. Segal. Too late.
    The same is true for Water Act programs as well.
    There are examples of an industrial facility having an eye-
wash station, which as you know is required by the Occupational 
Safety and Health Administration, being penalized for being, 
``an unpermitted water point source to the facility.''
    Does that go on every day with inspectors? Probably not; 
but the point is we have to be flexible in the way we implement 
our enforcement mechanisms. If we simply evaluate every 
environmental program by how many fines are issued and how many 
cases are filed, that's a bad approach.
    Looking to the future, what does it hold? For Water Act 
policy, there are very innovative policies that may obtain. For 
example, there are water trading programs, watershed management 
programs; and all of these are important developments for the 
future.
    I want to focus for 1 second on trading. We've heard a lot 
about trading in the air context; there are also trading 
programs in the water context.
    One thing that I would really hate to have occur is if we 
ever get to the point--and this maybe gets to Ms. Savage's 
point about why we need to fold enforcement officers back into 
the program office at the EPA--if we ever get to the point 
where enforcement officers can essentially use an existing 
docket of cases that have already been filed enforcing a 
particular interpretation of environmental law to avoid 
clarifying or reforming that underlying environmental program. 
They would argue that to do so would be a slap in the face of 
enforcement. If that ever gets to be the case, then enforcement 
officers will essentially hijack the program officers.
    That's a very dangerous proposition. It discourages 
innovation, and in my judgment discourages environmental 
protection.
    Thank you.
    Mr. Ose. Thank you, Mr. Segal.
    [The prepared statement of Mr. Segal follows:]



    
    Mr. Ose. Our next witness is Ms. Pam DiBona. She's the vice 
president for policy of the Environmental League of 
Massachusetts.
    You're recognized for 5 minutes.

      STATEMENT OF PAM DIBONA, VICE PRESIDENT FOR POLICY, 
             ENVIRONMENTAL LEAGUE OF MASSACHUSETTS

    Ms. DiBona. Thank you, Chairman Ose and Congressman 
Tierney, thank you very much for having me here this afternoon 
to speak about the Clean Water Act enforcement.
    As you mentioned, I'm vice president for policy at the 
Environmental League of Massachusetts. We're an independent 
statewide nonprofit organization, and we focus on making sure 
that sound environmental policies are developed and then 
implemented in the State. We work with more than 50 
organizations around the Commonwealth, including many watershed 
associations.
    Before I joined the Environmental League of Massachusetts, 
I was lucky enough to work at the Charles Watershed Association 
while the Clean Charles monitoring program was being put 
together.
    I guess one of the core messages from my testimony will be 
that, before we start talking about handing off all 
responsibility for enforcement of the Clean Water Act to the 
States, we might want to look at what the States are doing with 
their current mandate to enforce.
    The Environmental League has looked for several years at 
the Department of Environmental Protection, which is the agency 
that's primarily responsible for enforcing the Clean Water Act 
in Massachusetts; and their history has been spotty.
    We've seen decreases in the number of inspectors; we've 
seen penalties that do not recover the economic benefit that 
violators have gained by not following the law. The agency also 
has no idea of how to figure out how many of the facilities are 
actually in compliance out of the ones that they have in their 
system.
    And then, once they get them into their system with a 
violation, they don't have a cohesive, comprehensive program 
for following up on those violations and making sure that they 
were fixed after the fact.
    We're currently updating two previous reports on 
enforcement by DEP, and we'll have that done by the end of the 
year. We're happy to pass that on to you when we're done with 
it, plus give you the 2002 and hopefully 2003 data.
    One of the core reasons why enforcement is lacking in 
Massachusetts, I think, is lack of resources. In the past there 
has been lack of resources, because they've shifted money from 
enforcement programs to making sure that permits move along 
more quickly.
    More recently, they've been taking in the resources and 
moving them, trying to keep enforcement level; but boy, are we 
seeing changes in how the agency is being funded.
    Just in the past 2 fiscal years, they lost 25 percent of 
their work force, or 289 full-time equivalent employees. We're 
thinking that in fiscal year 2005, coming up, they'll lose up 
to another 125 to 150 FTEs.
    And I do know from talking to the agencies that having a 
Federal mandate to enforce the Clean Water Act is one of the 
only things that's keeping them on track with enforcement of 
the Clean Water Act.
    They have said to me that, as they look at where they're 
going to do disinvestments as the budgets are cut, that they're 
sticking with the federally mandated programs. Things like 
solid-waste management are going to go by the wayside; because 
the Federal Government isn't saying, here, you must do this.
    So we certainly in the States depend on having Federal 
mandate and EPA looking over our shoulders to make sure that 
this is done.
    I did want to just mention, while you were all talking 
about the monitoring on the Charles River, it's far more than 
the State has done in the past on monitoring, and it did take a 
nonprofit watershed association to get out and do it; but they 
also had to raise a lot of money to be able to do it 
themselves.
    And they were very forward-thinking in making sure they 
were out there, and had the volunteers who were out at 6 a.m. 
once a month to pick up water samples, come heck or high water.
    So I think that before we start talking about how much the 
environment has improved, or how much water quality is getting 
better, we really have to make sure that we have some data to 
back that up.
    I don't know that having only 40 percent of our water being 
assessed gives us the backing to be able to say that our water 
is getting better.
    And then, in my written testimony I did give a few examples 
in other States of the horror stories that really are happening 
in other States in terms of enforcement, including a facility 
in Alabama that had 324 Clean Water Act violations before they 
were taken to task.
    So I hope that this is useful to you as we move ahead.
    Mr. Ose. Thank you, Ms. DiBona.
    [The prepared statement of Ms. DiBona follows:]



    
    Mr. Ose. Our next witness is Mr. J. Charles Fox, who is the 
vice president of public affairs of the Chesapeake Bay 
Foundation.
    Sir, you're recognized for 5 minutes. Welcome.

STATEMENT OF J. CHARLES FOX, VICE PRESIDENT OF PUBLIC AFFAIRS, 
                   CHESAPEAKE BAY FOUNDATION

    Mr. Fox. Thank you, Mr. Chairman and Mr. Tierney. I 
appreciate the invitation to appear today.
    Before joining the Chesapeake Bay Foundation, I had the 
pleasure and privilege of serving the Secretary of Natural 
Resources in the State of Maryland, as Robbi had suggested, the 
former Assistant Administrator for Water in the Clinton 
administration.
    The Clean Water Act, no question, has been responsible for 
tremendous reductions in pollution over the past 30 years; but 
I would really differ with Mr. Segal, and suggest that our 
Nation has made surprisingly little progress in meeting the 
fundamental goals and requirements of the act.
    Lack of enforcement is the key reason for this limited 
progress.
    At one level, we've heard from a number of witnesses today, 
enforcement is the means by which government assures that the 
permit terms are met by dischargers. At another, more 
important, level, I would argue, enforcement is also the 
obligation of the States and the EPA to implement the act's 
basic requirements.
    Why is this distinction important? In Chesapeake Bay, if 
every permitted discharge were fully compliant with its permit 
terms, Chesapeake Bay still would not come close to meeting 
water-quality standards. Unfortunately, I believe our 
experience is not unique.
    The simple fact is that permit limitations themselves are 
not sufficiently stringent to protect water quality, and the 
States and EPA are ignoring fundamental Clean Water Act 
responsibilities in far too many cases.
    The Clean Water Act requires that all point sources of 
discharges of pollution have a permit that is sufficiently 
stringent to meet water-quality standards. The act established 
a two part strategy to achieve this.
    First, the permits include so-called technology limits 
which are based upon national-level regulation for categories 
of discharges.
    Second, the permits should be further strengthened, if that 
is necessary in order to meet State water-quality standards.
    It is the second step that has been so poorly implemented, 
in my opinion, by the States and the EPA; and, the results are 
painfully obvious.
    Over the past decade or more, our Nation's water quality 
has not improved; and, many indicators suggest that water 
quality is worsening.
    In the Chesapeake Bay, monitoring data has shown that 
water-quality parameters such as dissolved oxygen, clarity, and 
algae concentration have gotten worse, or no better, at the 
vast majority of places in the past 20 years.
    This summer, Chesapeake Bay experienced the worst dead zone 
we have ever experienced, according to the USEPA.
    What is needed? In a word, my opinion is leadership.
    Today we understand well the impacts of pollution, the 
sources of pollution, and the means by which we can control 
pollution. With few exceptions, the solutions are at hand and 
the costs are affordable.
    EPA and the States must seize every opportunity to 
strengthen national water programs. Unfortunately, over the 
past few years EPA appears to be heading in the exact opposite 
direction. My testimony has a few more examples of that.
    In the Chesapeake we have come to a relatively simple 
conclusion about how to save the Bay: enforce the law. A 
majority of pollution in the Bay is regulated by the EPA and 
the States under either the Clean Air or Clean Water Acts.
    Both statutes require that permit limits be protective of 
the public health and the environment, and that each law's 
respective permits be attained.
    Unfortunately, that is not how the permits are being 
written or the laws are being enforced. For example, sewage 
treatment plants are the second highest source of nitrogen 
pollution to the Bay; yet, to the best of my knowledge, not a 
single permit has enforceable nitrogen limits. That's over 300 
permits discharging over 1.5 billion gallons of sewage a day, 
and no nitrogen limits.
    In the Chesapeake, we have come to understand that we will 
need to implement a host of actions to the practical limits of 
technology in order to save the Bay.
    EPA and the States must carry out their existing 
obligations in their permitting of large-animal operations, 
stormwater sources, new development projects, power plants and 
sewage treatment plants.
    And Congress can help too. The pending highway bill, for 
example, is a golden opportunity to set aside funds for the 
States to control runoff pollution from the roads and highways.
    In closing, our Nation has a proud history of tackling 
environmental challenges.
    Workable regulations and consistent enforcement have formed 
the foundation of virtually every pollution success story of 
the past 30 years. This will require bold leadership from the 
States and the EPA.
    In the Chesapeake, we are confident we can succeed; but we 
will need your help and the help of others.
    Thank you.
    Mr. Ose. Thank you, Mr. Fox.
    [The prepared statement of Mr. Fox follows:]



    
    Mr. Ose. Our final witness is Mr. Eric Schaeffer, who is 
the director of the Environmental Integrity Project.
    Sir, welcome; you're recognized for 5 minutes.

STATEMENT OF ERIC SCHAEFFER, DIRECTOR, ENVIRONMENTAL INTEGRITY 
                            PROJECT

    Mr. Schaeffer. Thank you, Mr. Chairman and Congressman 
Tierney, for the chance to testify.
    I'm going to try to cover three questions quickly in 
wrapping up here. One is the fundamental one, do we have an 
acceptable level of compliance with the Clean Water Act? I 
think the answer has to be no.
    I think a second and separate question is, how is EPA doing 
with the resources it's been given? Pretty well, I think. That 
doesn't mean good enough, but pretty well.
    The most important question is, what can Congress do to 
help move EPA and the States toward the fishable/swimmable 
goals of the Clean Water Act? Because, I think these programs 
badly need your support.
    On the first point, the Clean Water Act is routinely 
violated, and in very serious ways. This is not a debate over 
bean counting; these are violations of laws you wrote. I think 
you're right to be concerned; they do have public-health 
impacts, and they do have serious environmental impacts.
    The news media has covered violations at the so-called 
major sources, the NPDES acronym we were using earlier. That's 
a fraction of the universe.
    We've got 15,000 large-animal feeding operations that EPA 
says need Clean Water Act permits. Less than a third of those 
have those permits, according to EPA. This is 30 years after 
the Clean Water Act.
    We've got violation rates that approach 70, 80 percent when 
it comes to stormwater requirements. I think it's a good thing 
that EPA's New England office focused on stormwater in its 
enforcement program.
    When it comes to wetlands, we don't have a clue what the 
compliance rate is in this country with respect to wetlands 
requirements.
    A big problem that has to be addressed is, we've heard 
3,400 full-time employees for enforcement. I urge you to ask 
the General Accounting Office to take a look at how those 
resources are distributed against the size of the universe that 
EPA regulates. I'll give you a couple of examples.
    I think you've got about 300 of those employees working on 
the Clean Water Act, fewer than 30 patrolling 105 million acres 
of wetlands. Those are pretty hopeless odds when you stack the 
resources up against the size and scale of the problems they're 
supposed to cover.
    To the second point, given those limitations, I think the 
EPA is doing pretty well. I think the agency was right to 
switch its emphasis to wet-weather flows; that's clearly a 
problem in this area, but also in many other parts of the 
country.
    I think some of the settlements that Mr. Suarez has 
announced recently are spectacular. They're environmentally 
very significant. These are very, very difficult cases to 
bring.
    I can tell you, they are not generally the kinds of cases 
that States like to do by themselves. I don't think Governors 
like to take their mayors to court very often, but sometimes it 
has to happen; and, EPA has that role. Without it, I don't 
think you're going to see those kinds of cases.
    So I think Mr. Suarez and Mr. Varney have done pretty well 
with the cards they've been dealt. I just don't think the hand 
they're playing is good enough, and that's I think maybe the 
most important part to focus on.
    Six points to make there.
    First, stop cutting the budget. It has been cut by 
successive administration requests. The Bush administration 
started with 270 FTEs. Congress said no. They came back and 
said, how about cutting 130 positions? Congress said no again. 
This year it's 54.
    Next year is an election year, so I'm expecting to see 
maybe level funding, or a claimed increase with the 
administration at the head of the parade.
    But I hope you'll continue to push back. If you've got 30 
people to cover 100 million acres of wetlands, these are not 
programs delegated to the States. There aren't enough resources 
to cover the terrain.
    Second, I don't think it's a good idea to improve 
compliance by weakening permit standards. I don't think the 
Bush administration needs any encouragement in that direction, 
so I hope you don't go down that path.
    Third, I think maybe the one thing this panel can agree on 
is, the data systems are a mess. When I heard Mr. Suarez say 
phase 1, I groaned and think Chuck groaned as well. We've all 
been there.
    When you hear phase 1 coming from a government witness, 
your alarm bell should go off. It means a very long, slow 
process. We spent a lot of money on this problem, and it's 
moved by inches.
    There is a lot of bureaucratic resistance at the State 
level, it has to be said, to cooperating in this effort; I 
think you're going to need to push it.
    We've heard a lot about State programs not being funded 
enough. It's true they do most of the inspections in 
permitting, and that's as it should be. It's true these State 
programs are underfunded; they need to raise their permit fees.
    Some of them need to establish permit fees. They do not 
even have permit fees in some States.
    The Clean Air Act requires a State that takes delegation of 
a clean-air program to have permit fees to charge the polluters 
what it takes to run the program. We need that in the Clean 
Water Act. We don't have it.
    We pay to get into national parks; we should pay to pollute 
in this country. I think that's reasonable.
    Another point, perhaps a little more mundane. 
Administrative penalty authority is lacking on both the Federal 
and the State level.
    A lot of cases could be quickly resolved using 
administrative authority. The Justice Department doesn't have 
the resources to take every case to Federal court; neither do 
State attorneys general.
    EPA's penalty authority needs to be increased for 
administrative actions. A lot of States cannot issue an 
administrative order unless the polluter agrees with the 
settlement. That's obviously unworkable, and that authority 
needs to be strengthened. I think that will take an act of 
Congress.
    Finally, if results are ultimately what we care about and 
what we can agree on, you might want to take a look at the 
mandatory minimum penalty program that New Jersey has 
instituted under Republican Governor Ms. Whitman, which has 
dramatically reduced noncompliance in that State.
    It establishes the principle that if you violate repeatedly 
a permit limit you will pay; and, not surprisingly, that's been 
absorbed and understood by the regulated community, and 
compliance is much better in that State. I hope you'll take a 
look at that.
    I thank you again for giving me this opportunity.
    Mr. Ose. Thank you, Mr. Schaeffer.
    [The prepared statement of Mr. Schaeffer follows:]



    
    Mr. Ose. Mr. Fox, I have a specific question.
    In your testimony at page 2, you discussed permitted 
discharges and the aggregate effect that they would have on the 
water quality in the Bay if they were all fully compliant. You 
stated that if they were all fully compliant you would still 
have a problem.
    If I understand the system, it's the State, the 45 States, 
that issue the NPDES permits; and you have Maryland, Virginia 
and Delaware feeding into the Chesapeake.
    It's also my understanding that those three States that 
surround the Chesapeake have an annual conference amongst their 
Governors. Does each State have a different permit standard?
    Mr. Fox. The short answer is, yes, they do have different 
standards.
    But in the end, the Bay itself, even being downstream, has 
standards that have to be met by upstream States; so, it is 
incumbent on either EPA or the regulated State to write a 
permit that is stringent enough to meet the standards of the 
Bay.
    Mr. Ose. You're saying the watershed goes beyond the three 
States?
    Mr. Fox. It actually goes up to Cooperstown.
    And then it was determined that the fundamental issue is 
that the permits themselves are not being written so as to 
include some of the key pollutants affecting the Bay.
    Mr. Ose. Well, you mentioned nitrogen.
    Mr. Fox. Nitrogen is one of them.
    Nitrogen is the biggest and most obvious one; and, we have 
a number of concentrated animal-feeding operations, large 
factory farms, if you will, that don't have permits, that in 
fact have contributed to the degradation of Chesapeake Bay.
    Mr. Ose. Would this be a case where EPA would overfile?
    Mr. Fox. It could happen either way. I would argue that the 
States initially have the responsibility to write this in their 
permits; and, if the States fail to do it, then the EPA, yes, 
has an opportunity to review all the States permits.
    Mr. Ose. I'm still not quite clear on how to get through 
that.
    Mr. Fox. Just to take it out of my backyard, I don't know 
the exact number, but I would bet that a majority of the States 
right now face impairments from nutrients, nitrogen and 
phosphorus. And, I would bet that the majority of the EPA 
technology standards, the uniform kind of blanket standards, do 
not really address the nutrient problem.
    So, it now becomes, in my opinion, under the Clean Water 
Act incumbent upon EPA and the States to now write permits that 
will in fact deal with the nutrient impairments that affect so 
much of the Nation's water.
    Mr. Ose. Let me jump here a little bit.
    Mr. Thompson and Ms. Savage, I specifically want to ask you 
both, in your experience, does cooperation between enforcement 
and regulatory personnel improve or diminish with compliance?
    Ladies first; Ms. Savage?
    Ms. Savage. I'll defer to him. He runs the programs; I'm 
the Washington mouthpiece.
    Mr. Thompson. I guess I don't understand how divorcing the 
permitting people, the rulemaking people, from the enforcement 
people improves compliance and enforcement.
    The basic understanding of that permit and that rule lies 
in the program area. I don't have any statistics to back this 
up; I've never understood how divorcing that piece of it 
improves things.
    If you look at OECA's organization, what EPA has done is 
taken the enforcement folks out, and now they have two offices. 
They have an Office of Compliance Assurance and an Office of 
Regulatory Enforcement, as if those were two separate things.
    In my view, they are not two separate things. There is a 
continuum of things that you do in an enforcement case based 
upon the specifics of that case, and you go along that 
continuum until you find the right mix based on the specifics 
of that case.
    I would suspect that what the regulatory enforcement group 
has done, then, is then redefine themselves along a media line. 
So, I suspect we have an office there, we have an office of 
water, and we have an office of solid waste or hazardous waste.
    So, how does it improve to separate them from the program, 
separate the compliance and the enforcement pieces from each 
other, and then have media offices within those groups? It just 
doesn't make common sense to me.
    Mr. Ose. You're saying they should work hand in glove?
    Mr. Thompson. They should work hand in glove.
    Let me tell you something. When we write permits in 
Oklahoma, the best ideas for how we get environmental 
protection come not from our permitting staff, who tend to sit 
in rooms and wear green eyeshades and garters. They come from 
our inspection staff; they come from our enforcement staff.
    So when we want to write a permit, a general permit or a 
specific permit, we get our folks together and we look within 
the Federal guidelines of what a permit must include about how 
to best address a specific industry.
    The people that know best about that are the people that 
have been on the ground doing those inspections, doing that 
compliance assistance, doing all of those things.
    The other thing is, we have a Clean Water Act, we have a 
Clean Air Act, we have the Resource Conservation and Recovery 
Act. We do not have an overall environmental act.
    So the Federal statutes themselves, in my opinion, mandate 
those kinds of organizations.
    Mr. Ose. Mr. Fox pointed out, and I'm paraphrasing, but the 
threshold at the Federal level doesn't address many of the 
things that might be necessary to get effective compliance.
    I don't remember your words, but you talked about States 
having a separate ability to adopt statutes for their 
particular needs. States would retain the ability to layer on 
additional levels of protection of whatever nature they like, 
and then design their enforcement compliance programs 
accordingly.
    Mr. Thompson. When we were delegated the NPDES program in 
Oklahoma, we were required to show the resources for statutory 
equivalency of the Federal program.
    So our statutes and rules reflect the Federal rules.
    Mr. Ose. As a base?
    Mr. Thompson. As a base.
    We have to continue to show that we have the resources to 
carry out the program, based on a regional review.
    Mr. Ose. In order to preserve the delegation?
    Mr. Thompson. I have a half-FTE that sits every day and 
pounds information into an inadequate EPA data base, the ARS 
data base or the PCA data base. I don't manage my program with 
that data base; it's impossible to manage my program with that 
data base.
    So what I have done, and what many States have done, is 
create a data base that allows us to manage that program.
    Now, the effort that's being made, through some work that I 
was a part of, is to define data standards so that those 
separate systems that States are effectively using to manage 
those programs could be tied to the national system so we can 
aggregate the kind of data that we need to get a national 
picture of compliance and enforcement and monitoring and all 
those kinds of things.
    But, until that effort is complete, or until we've 
modernized the national data bases to the point where they're 
usable for managing programs, you're going to see the kind of 
data gaps that you see in the reports that showed up in the 
Washington Post. I have to admit that Oklahoma was one of them.
    Maybe there are some reasons for that. I'm sorry, I'll quit 
when you tell me to; but in the national data base, if I have a 
municipal discharger that is pursuing funding to fix an 
infrastructure problem, that facility will continue to show up 
in that data base every time it reports.
    That shows a level of recidivism even though, I have 
addressed that with a specific order to fix that problem.
    We've got to have an engineering report, we've got to have 
money to fix it, we've got to have construction periods; we've 
got to have all those things. But, that's one reason.
    Another reason is, when EPA delegated the program to 
Oklahoma in 1996, they kept a bunch of facilities; Oklahoma 
shows up as being the one that is out of compliance with this 
thing, but a lot of those things are attributable to the EPA.
    One other thing, and I promise to----
    Mr. Ose. I know we have a limit because I know what time 
your plane leaves.
    Mr. Thompson. That's why I'm anxious to take my shot when I 
can.
    The Watch List, I believe that what J.P. says about that is 
right. It is an excellent tool for the management of the 
program; it can be an excellent management tool.
    But, if it goes public, the same kinds of wrap-yourself-
around-the-axle issues that we've got with the NPDES report, 
we're going to get with the Watch List. It is not the end of 
the discussion; it is the beginning of the discussion. The 
public will take it, unfortunately, as the end of the 
discussion.
    Mr. Tierney. Thank you.
    Dr. Metzenbaum, what do you say about that?
    Do you think the Watch List should be public? What are the 
benefits of it being public? What are the lost opportunities if 
it's not?
    Dr. Metzenbaum. I think the Watch List should be public. I 
think there needs to be an initial wait time to clarify issues 
with the States, and to explain the kinds of issues that Steve 
is addressing.
    I think, if you don't make it public ultimately, then those 
data quality issues are not going to go away. You've got to fix 
that underlying data; and until you make the data public so 
other people start to use it and analyze it, there just won't 
be enough pressure to clean up the underlying data.
    Mr. Tierney. Do you agree, Mr. Schaeffer?
    Mr. Schaeffer. I agree completely.
    Mr. Tierney. Mr. Fox.
    Mr. Fox. One hundred percent.
    Mr. Tierney. You don't agree.
    Mr. Segal. Well, I'll just say this. I don't know enough 
about the way the Watch List is put together to know if it 
should be made public or not.
    I do know from the past experience I've had with the Toxic-
Release Inventory that there are so many nooks and crannies, 
too many failures to update it at a particular time, and too 
much purposeful misuse of a particular data base to 
characterize particular industrial sectors and other industrial 
sectors. By the time it's all said and done, there is so little 
risk information available in the TRI that, if I were running a 
group and wanted to focus the resources of my community 
advocacy group on, ``the biggest pollutant in my area'' and I 
used the TRI data to do that, I would almost certainly be 
pointed in the wrong direction.
    So, if it's good data, release it; if it needs to be 
scrubbed a lot more, then don't release it yet.
    Mr. Tierney. Better to scrub than to release?
    Mr. Segal. That's my sage advice. If it's good data, 
release it.
    Mr. Tierney. Ms. Savage, you have a good background on the 
history in this area; you talked to the people who originally 
drafted this legislation. Did you gather from them what their 
intention was as to how the Federal law would be funded?
    Ms. Savage. Certainly. In 1972, for example, the wastewater 
treatment construction program had a grant of over $500 million 
a year.
    From that point, under subsequent administrations, in the 
1981 statute we went from $5 billion down to $2.4 billion; and 
now, with the SRLF, the State revolving loan fund that was 
created in 1987, and then subsequent to that with the drinking-
water program, that $2.4 billion has been cut in half.
    So we went from $5 billion in 1972 to less than $1.2 
billion just on wastewater treatment facilities.
    It's a good thing that we've had 30 years of point 
discharge enforcement in activity; because if you tried to 
build this program on $1.2 billion a year for sewer plants we 
would be in trouble.
    As you well know, Congressman Tierney, for the CSOs and 
SSOs, the funding isn't there. You mentioned in your opening 
statement how the money has gone.
    So, it's a real problem. We're looking at trillions of 
dollars to enhance our infrastructure, and the money simply 
isn't available to do that; we're going to have to look for 
Options B, C, D, E and F because it doesn't look like we're 
going to have the kind of funding we need to run these 
programs.
    Mr. Tierney. Well, Option A is to go back to the intent of 
the law, which is to put the Federal Government's money where 
its mandates are.
    I don't think there is a State or community that would 
resist having some assistance with compliance. I think that 
continues to be an extreme issue, at least in my district I 
know it is. They still have the same regulations to comply 
with; yet, the money has been dwindling, and the partnership 
has been fading.
    Ms. Savage. Our rule of thumb is that the Federal 
Government should foot the bill for at least 25 percent of the 
overall program. They certainly don't do that at this point in 
time.
    There has been escalation in requirements by orders of 
magnitude from where we were in 1972, and yet the dollar 
support has gone down.
    But I want to come back to a point that the chairman asked 
Steve----
    Mr. Tierney. Are you on the same plane as Mr. Thompson?
    I'm going to interrupt. You can answer the question for the 
chair when he revisits it again. I want to get at some other 
things, if I may.
    Ms. Savage. Sure.
    Mr. Tierney. Mr. Schaeffer, what about the claim that the 
$5,000, $6,000 penalty limit isn't something we should be 
concerned about; that the decline in enforcement activities by 
some 45 percent because of their shift in priorities isn't 
something we should be concerned about?
    As a former enforcement official, what are your feelings on 
that, and what ought we do about it?
    Mr. Schaeffer. Well, I was part of that shift, so I'm 
implicated in that sense. I think it made sense to go after 
wet-weather issues. They'd been sitting for a while, and 
they're very serious.
    Again, I never said or thought at the time that meant 
leaving the majors alone, or that giving them less attention 
was a good thing; it was just the choice that we had to make, 
or at least the one that seemed the most rational with the 
resources we've been given.
    Again, that's why I tried to split the questions. Are we 
getting good compliance with the Clean Water Act? No. Has the 
agency had to make hard choices? Sure.
    Mr. Tierney. In your mind, is there a connection between 
the level of enforcement activity and the level of compliance?
    Mr. Schaeffer. Yes, absolutely. I just suggest we look at 
the New Jersey minimum-penalty program for a good example of 
what happens when penalties are collected routinely.
    Just one last point on that.
    A lot of enforcement, too much enforcement, consists of 
issuing a series of paper orders to the same facilities. Those 
don't really have a whole lot of impact. Those need attention. 
Some States do an excellent job; some States don't. And that's 
true for EPA regions as well.
    It's hard to grab that $5,000 number without knowing what 
the larger context is; but that's not a very significant 
penalty, obviously, for a large manufacturer.
    Mr. Tierney. If we go back to the escalation issue, are we 
really looking at first trying to help people comply; but, if 
they're not, the idea is are we escalating appropriately so 
that they know they can't get one fine that they can meld into 
their overall operating costs, and continue on ad infinitum?
    Mr. Schaeffer. Exactly.
    Mr. Tierney. Dr. Metzenbaum, the data information that 
we're talking about in the so-called PCS system, one of the 
issues seems to be that States are not getting the information 
to that system.
    I listened to Mr. Thompson. It may very well be because the 
system can't be approached, can't be entered, or whatever; then 
maybe the States find it burdensome to provide that 
information.
    Can you straighten that out for us? What's the real angle 
here?
    Dr. Metzenbaum. I wish I could straighten it out, Mr. 
Tierney.
    I think there is a real challenge. If you are asking anyone 
to feed a data system, you have to return the data to them in a 
more useful form; or they just don't have an incentive to focus 
on that system.
    I think that the distinction Mr. Thompson was making is 
that he's running his own management system.
    Eighteen States use EPA's permit compliance system. Thirty-
two States have built their own systems, and then have to 
separately feed the EPA data system. I think part of that is 
that it's just too difficult to extract the data from the EPA 
system so that it's useful.
    You could imagine a system where you would have the 
discharge monitoring reports for different facilities posted 
online so you could compare them and organize them by 
watershed, so that you could look at similar-size facilities, 
etc. That would start to be a very useful analysis.
    At this moment it's hard to figure out the usefulness of 
this. I have hopes that the upgrade of the permit compliance 
system will fix this, but I have no real knowledge that's going 
to make me feel confident. I think that something needs to 
happen sooner rather than later, because December 2005 is a 
long time away.
    Mr. Tierney. Mr. Thompson, with your plans--you have your 
own data base--would you find it more or less burdensome if the 
PCS system were updated and made to provide you information you 
found useful?
    Would that be something you could shift over to; or would 
you resist doing it because somehow that would be in your 
estimation too burdensome?
    Mr. Thompson. I think I would prefer, given the investment 
that they made in their individual data systems and the comfort 
that they have with them, to develop a system where that data 
can be aggregated in the national system, rather than 
transferring to a new national system----
    Mr. Tierney. That technology exists somewhere, and can be 
done?
    Mr. Thompson. It could be done; it can.
    There is a lot of work, again, on data definitions, 
different things that are in effect the same action, and the 
ability to aggregate that data. Those systems do exist.
    Mr. Tierney. Ms. DiBona, let me ask you, in Massachusetts, 
how easily can a resident find information about the water 
where they live, the facilities near where they live, what 
damage may or may not be occurring? Is it an accessible system? 
Is it something they can do?
    Ms. DiBona. I think right now what residents can do is go 
to the EPA's Web site, where they have a watershed program, 
where you can click on where you live and they give the data.
    The trouble is, we're not quite sure where that data is 
coming from, and what they're basing that information on.
    Some of it's from the States, and maybe sometimes it's from 
watershed associations; but, as Dr. Metzenbaum pointed out, 
there is a lot of data out there that would be very useful if 
we could figure out how to put it all in one place.
    If I could followup on the other question that you asked 
about the States' ability to use the data and report on it, 
Massachusetts has done a very good job of getting grant funding 
from EPA to startup their own electronic filing program for 
both permits and then monitoring reports. That all gets fed in.
    They're using this as a way to make up for the employees 
that they've lost. The system can kick out the data that 
doesn't match up with the permit when the monitoring report 
comes in.
    So, we're arguing with them about how much of that is going 
to become public; because that's the kind of information that 
is helpful to people, what's happening at the facility down the 
way from where they want their kids to swim.
    Unfortunately, even capital funds are becoming scarce, to 
pay for that. They need $600,000 in capital funds to continue 
the program and keep the data base moving, and they're having 
troubles getting that right now.
    Mr. Ose. Mr. Thompson, is your system Web-based?
    Mr. Thompson. It is.
    Now, the system that I'm using most successfully is the one 
for air. We're in the process of developing one for water. We 
have individual data bases that we use to manage our water 
program; not the kind of collective system, aggregated system 
like we do.
    In fact, the system that I discussed about sharing data, 
the systems would have to be Web-based in order to be useful.
    Mr. Ose. Ms. Savage, you had something you wanted to go 
back to.
    Ms. Savage. Yes, a couple, three or four points.
    Mr. Thompson. You're going to say what I meant to say.
    Ms. Savage. Yes, I've been doing it for a long time.
    When Steve was talking about the difference between the 
divorce which took place about 10 years ago at the EPA, 
separating out from the programs and creating OECA, there was a 
reason that the agency did that; but, it was primarily for the 
optics of looking as if enforcement was a higher priority.
    What in fact happens, however, is that you have two AA 
ships, two Assistant Administrators instead of one program AA. 
You have two similar systems, two organizational structures, 
two sets of staff, two sets of operating activities. You have 
two strategic plans.
    Let me give you an example of why this is a problem for the 
States.
    We had been negotiating with EPA and working with them on a 
strategic plan when Chuck was the Assistant Administrator. That 
means we were working with the Office of Water to develop the 
strategic plan for the water program.
    OECA isn't part of that discussion. So, 2 or 3 years later 
we can be negotiating and working through a strategic plan; 
OECA comes in, they weren't part of the water process, but 
working on their own. They didn't give us the data points that 
they wanted incorporated into the water program. They have a 
separate and totally different set of criteria.
    So that is very difficult for the States to manage, because 
it's a duplication of effort. You get at the regional effort, 
so now you've got Bob Varney in Region I; now he's got two AA-
ships to deal with at the regional level.
    By the time you get down to the State, you have two 
incredibly complex sets of bureaucracies working at odds; let 
alone the turf, let alone the budgets, let alone reporting to 
the Administrator, and so on.
    So it's a very complicated system; where if you have one 
organizational structure setting the goals and enforcing the 
law you have a combined effort, you know where the problems 
are, you solve the problems and you deal with them. That was 
the point I wanted to make.
    I wanted to go back to a coordinated water program.
    Mr. Ose. Before you leave that point, you're speaking to 
the coordination efforts in implementing improvements to the 
environment?
    Ms. Savage. Correct, and implementing the Clean Water Act.
    I think Eric Schaeffer mentioned the fact that we were 
having difficulties with stormwater, and Chuck Fox mentioned 
about nutrient standards. He's absolutely right; nutrient 
standards need to be put into our water-quality standards and 
into our permits.
    I would just mention that the CAFO animal-feeding 
operations were only promulgated in the end of December; so it 
takes a little while for that to happen. I think he's 
absolutely right; it needed to happen. Animal-feeding 
operations are a huge issue.
    Two last points. One is that California also has a minimum 
penalty of $3,000 per violation, and they are finding that to 
be very useful. The program has been so desiccated that they 
can't do anything----
    Mr. Ose. Per violation, or per day?
    Ms. Savage. Per violation. It might be $3,000 per day. 
Actually, I'll have to check that.
    Mr. Ose. There have been a lot of bills signed in the last 
10 days.
    Ms. Savage. That's true.
    Then I wanted to come back to something that Mr. Varney 
said. My organization sponsors World Water Monitoring Day, 
which is Friday this week. We are inviting partents, teachers, 
and kids out to go and monitor their waterways for pH, 
temperature, and oxygen demand.
    Also, I endorse everything he said about citizen 
monitoring. The reason we created World Water Monitoring Day is 
that we don't have enough bureaucrats in the world to do all 
the monitoring we need.
    If we can get the people out there in the waters, walking 
the streams, doing it on a regular basis and recording it into 
a data base--sadly, it's my data base and not an EPA data 
base--at least we're getting a data base. We've got to be ahead 
of the game.
    But, I did want to take issue with the idea that the 
Massachusetts program or another other predecessor program is 
not a delegation. The program enforcement of NPDES is 
calculated at the Federal level, not at the State level.
    I can understand your frustration. On the other hand, 
oftentimes the State gets lumped together.
    Ms. DiBona. We do share a delegation. It's not totally with 
EPA, and it's not totally with the State. They collaborate on 
all----
    Ms. Savage. The responsibility.
    Mr. Tierney. So, they go like this (gesturing) when it 
becomes appropriate.
    Ms. Savage. Yes, exactly.
    But, I believe enforcement and permitting authority is at 
the Federal level. That doesn't mean that the State doesn't 
have responsibility and they don't do some of the work; but 
they have the ultimate responsibility.
    Mr. Ose. What I hear all seven of you talking about is the 
quality of information.
    Ms. Savage. Yes.
    Mr. Ose. Item No. 1 is the quality of information that the 
decision is being made on.
    That gets to, as Mr. Thompson said, the collection and the 
transmission of that data to the people who are responsible for 
enforcement, for compliance and the like.
    And yet, along the Charles River I think the two of you 
were involved in a system that used volunteers--I don't know if 
it's Web-based or otherwise, I'm presuming it is--they used 
volunteers to collect information and monitor the status of the 
river, the outcome if you will; not the output, but the outcome 
of the collective efforts.
    This seems like common sense to me. What am I missing?
    Mr. Fox. Mr. Chairman, you're right on target.
    As the person who actually helped create the assistant-
administratorship for information in the former administration 
of the EPA, I think this is a relatively important point.
    We have the technology today that allows anyone in their 
homes to find out anything, and frankly allows Steve's program 
in Oklahoma to seamlessly interact with any Federal program.
    The key issue here is the data standards. Do you measure 
mercury in milligrams per liter, or do you measure mercury in 
some other unit? Do you measure your enforcement in one or 
another unit?
    Frankly, I think it comes down to a leadership question. 
I'm not saying it's EPA's fault, or the States'; someone has to 
make the decision, what is the data?
    Once that decision gets made, you watch; technology takes 
over, and this information becomes available to the public like 
that. Not quite that simple, but almost.
    Mr. Ose. In addition, you attract public sector and private 
sectors partners who contribute.
    Dr. Metzenbaum. I think data quality, data availability, 
analysis of the data, dissemination of it is critical.
    I just want to address two issues. Mr. Thompson talked 
about EPA being able to take data from the States, and I think 
that's a fantastic model; but it does mean the EPA has to 
assume a much stronger role in enforcing the quality of the 
data than they have been assuming.
    The question was raised earlier about discharge monitoring 
reports, and whether or not the accuracy of those is actually 
checked. If you're going to move to this kind of a system, you 
actually have to take care of the management of the 
information.
    Then, getting it out to the public starts to engage the 
public in doing the analysis as well.
    I just want to point out that EPA's ECHO system, 
environmental compliance history online, is a very powerful 
system. It begins to make it easier for the public to analyze 
the information; but it only takes a baby step.
    You talked about a lot of the analysis EPA has done. Why 
can't we all push a button and do some of our own kinds of 
analyses the way EPA has done and beyond, that actually start 
to look at compliance history, discharge and compliance trens 
in different watersheds and different places, for different 
kinds of facilities?
    I think you're completely right; information is an 
unbelievably powerful tool. We need to manage it and play a 
leadership role. We need the States and EPA to do that.
    Mr. Tierney. Mr. Schaeffer, you were shaking your head?
    Mr. Schaeffer. I don't know where to start. Just on a 
factual issue, the CAFO regulations have been around since the 
early 1970's.
    Mr. Tierney. The CAFO regulations?
    Mr. Schaeffer. I'm sorry; the large-animal feeding 
operations.
    Mr. Ose. You come from an agricultural State; you know this 
issue.
    Mr. Schaeffer. That are the source of so many water-quality 
problems.
    The basic regs have been around for a long, long time; 30 
years at this point. I just didn't want to let that pass.
    I think a second point on the data issue which is a real 
sticking point is that it's not just the quality issue which is 
very important; it is the public-access issue. I do think we 
have deeply held views amongst some State regulators that in 
effect they own the data, and it's for them to shape it and let 
it out to the public as they see fit.
    I have to say, I'm extremely uncomfortable with that. I 
think the data belongs to the public. In many cases it's 
required by law to be made public, and we ought to make it 
easier to get.
    I think this idea that the public, if they get TRI 
information on toxic-release inventory, or if they get 
information on noncompliance are going to somehow panic and run 
like lemmings into the sea, is just silly.
    We had a Washington Post story; so what? We're all here 
still alive. The flag is still flying over Oklahoma. We can 
survive.
    We need to get this stuff out and on the street where we 
can debate it, and not have it be something that's controlled 
by, frankly, bureaucrats; whether they're at the Federal level 
or the State level.
    Mr. Tierney. Do we need to change the law to make that 
happen; or just----
    Mr. Schaeffer. I think we might want to look at the statute 
itself, because I do think this is an intractable political 
issue; which may mean it will be tough for you as well, but 
it's going to be very tough to solve at the agency level.
    Mr. Tierney. Mr. Segal?
    Mr. Segal. Just a quick response.
    I've heard about the need for access to information for 
``We the People.'' I've heard about the need for access to 
information of a State-level bureaucracy speaking to a Federal-
level bureaucracy.
    But remember, when we talk about enforcement, we're also 
talking about the relationship between the government and the 
regulated community.
    I think we could use a little bit of improvement in the 
quality of the information that goes to the regulated 
community.
    By that I mean that if you're going to have a successful 
enforcement program, those mandates, those priorities, have to 
be made clear, interpretations of law have to be made clear, to 
the regulated community.
    When they are not, and when the enforcement program becomes 
a moving target, a lot of mischief is done; and I frankly would 
say that a lot more is spent on litigation than is spent on 
environmental improvement, and that's too bad.
    Mr. Tierney. I spent a good deal of my life in litigation; 
and I'll tell you, if they want to litigate them to avoid them, 
they're going to do it.
    We have to make it clear, and nobody disputes this, that 
what they do with that is going to be on their conscience.
    Mr. Schaeffer, let me ask you a question that I asked Mr. 
Suarez.
    What do you make of the assertion that facilities subject 
to formal action have higher rates of recidivism than the ones 
that don't have formal action taken? Is that because we're 
focusing on problem facilities and they're more likely to keep 
on being bad, or is it because our fines and what we're doing 
aren't enough of a concern?
    Mr. Schaeffer. My sense is maybe some of both, but you are 
dealing with some tough problem facilities. The truth is I 
really don't know, and that would be a good question to pursue 
with EPA.
    Mr. Tierney. Anybody, right to left, I'd like to all give 
you an opportunity to give make some closing statements. Do you 
want to quit while you're ahead?
    Mr. Schaeffer. I appreciate the time.
    Mr. Ose. Can we get Mr. Thompson first? He has a plane to 
catch.
    Mr. Thompson. I will be brief.
    Mr. Tierney. I purposely started from the right.
    Mr. Thompson. I think there are two things.
    I think there is a need for improved data. I think there is 
a need for Congress to look at each component of this and 
really analyze who does what best.
    There are things that States, because of their proximity to 
the issues, can do better than the Federal Government; and 
there are things that the Federal Government can do that the 
States cannot. I'm not sure we're optimizing those resources in 
the best way yet.
    I will also say that, as the information gets better, I 
believe that the solutions will be more and more driven to the 
local level; and to look at the responsibilities of States and 
of the EPA in that context will become more and more important.
    Mr. Tierney. Thank you.
    Ms. Savage.
    Ms. Savage. In addition to more money and flexibility--I 
had to get that in, guys; they were teasing me early on, don't 
you get tired of saying States need more money and flexibility, 
so I had to throw that in--one of the things that I think is 
absolutely essential is better monitoring.
    For my part, we're doing World Water Monitoring Day, to get 
citizens in the water. People every year going back to their 
streams and waterways take responsibility, educate themselves, 
and get the kids to learn about water quality.
    Last year we had 75,000 and we're hoping for more than a 
million this year.
    One of the things that the chairman asked was why isn't 
that such a great idea, and why can't we manage programs that 
way? The reason is, it's great to have kids in streams, and the 
people, but that's not quality assurance and it's not quality 
control.
    If our attorney friends need to go to litigation for 
enforcement action, they're not going to be able to use citizen 
science data, for the most part. So, while it's an education 
tool, we can make decisions, we can raise it to the government 
level, we can follow it up with studies.
    Citizen data often cannot be used for the enforcement of 
legal activities. We need more enforcement; we need to put more 
attention in that area.
    Mr. Tierney. Thank you.
    Doctor.
    Dr. Metzenbaum. I want to thank this committee for opening 
questions about how you can encourage increased use of 
information, skillful use of information, how you can leverage 
that information, use that as part of a tool in the regulatory 
system to improve environmental quality.
    And I want to ask that you continue this line of inquiry. I 
think it's a very positive one, and that the solutions are not 
simple.
    A lot of it is organizational inertia, but a lot of it is 
just very tough work that needs to be sorted out.
    I hope you'll continue this line of inquiry, so that we can 
make real progress in a bipartisan way and encourage skillful 
and aggressive use of information in this area.
    Mr. Tierney. Thank you.
    Mr. Segal.
    Mr. Segal. Congratulations to everybody; I think it was a 
very interesting hearing. A lot of points were made.
    I think that I would be satisfied on a going-forward basis 
for environmental enforcement in this country if environmental 
enforcement administrators simply took a Hippocratic oath, 
which is simply that they would do no harm.
    You can't swear that Hippocratic oath at this point as 
between the relationship between the Feds and the States; you 
can't swear it as to the embracing of innovative approaches, 
both environmental management of facilities and environmental 
management within agencies.
    If we could just do what makes sense and not focus on 
turning everything into litigation, I think we would all be 
better served; and, that's a declaration against interest.
    Mr. Tierney. I would say.
    Ms. DiBona.
    Ms. DiBona. I'll try to be a little shorter than Mr. 
Thompson, but----
    Mr. Segal. You are shorter than Mr. Thompson.
    Ms. DiBona. When we talk about having the data in good 
shape, it's because we want to make sure that people are doing 
the right thing.
    In the Charles, there was regular monthly monitoring at 37 
sites in a limited area of the river ongoing for many, many 
years.
    Once a year isn't enough; once every 5 years that our 
agency goes out and monitors isn't enough; and even the 3 
months that the students can go out and monitor the creek isn't 
enough.
    You need to have ongoing monitoring, and volunteers aren't 
free. Just because we say, oh, volunteers will take the data 
doesn't mean we don't have to go back and do the quality 
assurance and quality control to make sure that the procedures 
are proper and to have the resources to coordinate all that, 
that they have the equipment that they need, the laboratory 
monitoring.
    Mr. Tierney. Thank you very much.
    You gentlemen still pass?
    Mr. Fox. Yes.
    Mr. Tierney. I thank all the witnesses for your testimony 
and time. Mr. Chairman, I thank you for coming.
    [Whereupon, at 1:50 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record 
follows:]




                                 
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