[Senate Hearing 108-259]
[From the U.S. Government Publishing Office]
S. Hrg. 108-259
ENVIRONMENTAL PROTECTION AGENCY'S
FISCAL YEAR 2004 BUDGET
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
FEBRUARY 26, 2003
__________
Printed for the use of the Committee on Environment and Public Works
U.S. GOVERNMENT PRINTING OFFICE
91-254 WASHINGTON : 2004
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800, DC area (202) 512-1800 Fax: (202) 512-2250 Mail: stop SSOP, Washington, DC 20402-0001
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred eighth congress
first session
JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio HARRY REID, Nevada
MICHAEL D. CRAPO, Idaho BOB GRAHAM, Florida
LINCOLN CHAFEE, Rhode Island JOSEPH I. LIEBERMAN, Connecticut
JOHN CORNYN, Texaa BARBARA BOXER, California
LISA MURKOWSKI, Alaska RON WYDEN, Oregon
CRAIG THOMAS, Wyoming THOMAS R. CARPER, Delaware
WAYNE ALLARD, Colorado HILLARY RODHAM CLINTON, New York
Andrew Wheeler, Majority Staff Director
Ken Connolly, Minority Staff Director
(ii)
C O N T E N T S
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Page
FEBRUARY 26, 2003
OPENING STATEMENTS
Allard, Hon. Wayne, U.S. Senator from the State of Colorado...... 4
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 36
Boxer, Hon. Barbara, U.S. Senator from the State of California... 16
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 26
Cornyn, Hon. John, U.S. Senator from the State of Texas.......... 30
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 1
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 2
Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska...... 10
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 9
Voinovich, Hon. George V., U.S. Senator from the State of Ohio... 5
Warner, Hon. John W., U.S. Senator from the State of Virginia.... 28
WITNESS
Whitman, Hon. Christine Todd, Administrator, Environmental
Protection Agency.............................................. 10
Prepared statement........................................... 38
Responses to additional questions from:
Senator Baucus........................................... 89
Senator Boxer............................................ 101
Senator Clinton.......................................... 113
Senator Inhofe........................................... 41
Senator Jeffords......................................... 62
Senator Lieberman........................................ 98
Senator Voinovich........................................ 52
(iii)
ENVIRONMENTAL PROTECTION AGENCY'S FISCAL YEAR 2004 BUDGET
----------
WEDNESDAY, FEBRUARY 26, 2003
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:39 a.m. in room
406, Senate Dirksen Building, Hon. James M. Inhofe [chairman of
the committee] presiding.
Present: Senators Inhofe, Jeffords, Allard, Voinovich,
Thomas, Murkowski, Boxer, Carper, Warner, and Cornyn.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. Quite often Senator Jeffords and I don't
agree on everything, but we do agree that we are going to be
starting on time and running a pretty tight meeting.
So we want to, first of all, welcome Governor Whitman. We
are pleased to have you testify before this committee today on
President's Bush's Fiscal Year 2004 budget proposal for the
EPA.
Because the hearing will be well attended and I anticipate
enthusiastic rounds of questioning, I will ask for opening
statements to be kept short, under 5 minutes.
I would also like to start by making three observations and
then broach a few specifics. My first observation is that
President Bush's budget for the EPA stresses results over
bureaucratic mandates and processes: cleaner air, cleaner
water, cleaner land, as opposed to more paperwork and more
lawsuits.
My second observation is that President Bush's budget
harnesses the power of innovation and technology to address the
Nation's environmental challenges.
The third observation is that President Bush's budget
continues the Nation's strong progress toward a cleaner
environment. He has proposed the most aggressive Presidential
initiative in history to reduce emissions from power plants. I
congratulate this Administration on its environmental record,
which demonstrates excellence under all honest scrutiny.
However, some systemic problems have existed at EPA
virtually since its inception. These systemic problems have
been recognized by the General Accounting Office, the Inspector
General, and the Office of Management and Budget.
Moving into the specifics, I want to thank Administrator
Whitman for the most comprehensive EPA report on children's
health to date. Our children's health is of utmost concern, and
I am pleased that, as a direct result of progressive Federal
initiatives, there have been significant improvements in
children's environmental health.
However, I found the alarming snapshot of information about
mercury levels to be vague and potentially misleading. Though
the report stated there was, and I am quoting now, ``some
increased risk of adverse health effects,'' it failed to
specify how much risk and which women this would impact.
Apparently, the risks were overstated. As such, I think it
unnecessarily, needlessly scared a lot of woman. I would
appreciate clarification on what to be appears ambiguous
information.
This is just another example of concerns I have raised in
the past regarding the need for EPA to be responsible with
science and provide sound science which is easily explained to
the American people. For example, if you listened to CNN
yesterday, you would assume that 1 in 12 women were in serious
jeopardy of mercury poisoning, and this just is not true.
Along with sound science, I have long been concerned with
the topic of achieving the biggest bang for our environmental
buck. We need to prioritize our spending to achieve maximum
health benefits.
For example, I note that OMB's review of the Air Toxics
Program at EPA observes, and I quote, ``The program has not
shown it is maximizing net benefits and proposing the most
cost-effective regulations.'' I am pleased that, in response to
this observation, an aggressive plan has been devised to
increase funding for the Toxic Air Pollutant Program by $7
million in State grants for monitoring and to help fill the
data gaps and refocus on maximizing programmatic net benefits.
We need to make sure that all regulations are cost-effective.
On the topic of Superfund, I am particularly interested in
the effectiveness of the program, in no small part since in my
State of Oklahoma we have Tar Creek, which is the largest
Superfund site and the most devastating damage anywhere in the
Nation.
I was distressed a little bit to hear our Governor
yesterday say, well, our solution is to file a lawsuit against
the EPA. I see that as a copout. I would hate to see litigation
pursued as the answer at Tar Creek because it is something we
are working on, and I am sure that the Administrator will have
some comments to make about that. We shouldn't get bogged down
in processes that would delay the ultimate cleanup of this
site. I want to focus on results, cleaning the soil, and, most
importantly, bringing down the levels of lead in our Oklahoma
children.
As chairman of this committee, I will continue to work
closely with you and other Federal agencies, including the
Department of Interior and the Army Corps of Engineers, that
these results are quickly in coming.
Senator Jeffords?
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. Good morning. I will be brief with my
statement and most of it will be made a part of the record.
Administrator Whitman, welcome. It is always nice to see
you, though I realize budget hearings are not the most pleasant
affairs. However, I want to publicly acknowledge my admiration
for your commitment to public service and enthusiasm for one of
the most difficult jobs in Washington.
It has been a year since you testified before this
committee on the EPA's budget. Last year you took pride in the
fact that the Agency budget requested a $200 million increase
over the previous year's request. I am disappointed that you
cannot make a similar claim this year.
If enacted, this budget request would represent about a 6
percent cut in spending compared to what the President signed
into law last week and does not even take into account
inflation. It is my opinion that the Administrator's 2004
budget request for EPA is inadequate to the task at hand.
How can the Agency justify the $500 million cut in the
Clean Water State Revolving Loan Fund? Even the Office of
Management and Budget has written to me stating that over the
next 20 years $21 billion in capital funding will be needed for
clean water and $45 billion will be needed for drinking water.
I might add that the Congressional Budget Office and others
have estimated our national water infrastructure needs in the
range of $300 billion over the next 25 years.
At a time when the water systems are coping with additional
cost of security, I don't want to be told that a bean counter
at OMB has decided that, for budgetary reasons, the State
Revolving Funds are ready to revolve. I don't believe it and I
don't think water experts in EPA believe it.
Last year one bright spot in the budget request was a large
increase in funding for the Brownfields Program, and I should
note that EPA is requesting a modest increase this year as
well. I can only ask, where is the beef? Enacting Brownfields
funding for competitive grants remains at less than $100
million, despite the promises of more resources and a new
authorizing law. It is kind of like ordering a double
cheeseburger and coming up ``patty short.''
Speaking of the frustration we authorizers are feeling when
it comes to appropriations, as you know, new legislation was
enacted at the end of the last Congress to protect Lake
Champlain. The new bill authorizes substantially more resources
than had been requested by the Agency. I hope I can work with
you to make sure that this is the last budget that will request
so little in funding for Lake Champlain.
I am sure that other members will focus their attention on
the Superfund budget and resources the Agency is devoting to
its enforcement activities. I would like to voice my
displeasure with the Agency's responses to the committee's
request for information.
Over the past year and a half, we have sent repeated
requests pertaining to the Agency's proposed changes in the New
Source Review Program as well as questions pertaining to the
Administration's Clear Skies proposal. To my dismay, the
Agency's responses have ranged from inadequate to incomplete,
and in some cases no response was received at all. This is
untenable and, unfortunately, not unique. I am also waiting for
promised responses to my question from the Council on
Environmental Quality.
Both you and I are trying to make the environment safer for
our children and grandchildren. We must strive to do better.
On the air front, I have been encouraged by the Agency's
move to better regulate diesel vehicles, but I am concerned
that the Agency is becoming better known for its ``New Year's
Eve revisions in the Clean Air Act,'' weakening the requirement
that the oldest and dirtiest power plants and refineries
install modern pollution controls whenever they make major
repairs. My State and eight others that are challenging the
EPA's actions in court cannot permit our air to become dirtier,
our mountain vistas smoggier, and our citizenry sicker.
I am also very deeply concerned with the Administration's
effort to promote its Clean Skies Initiative. Despite EPA
claims to the contrary, the proposal would carve up crucial
aspects of the current law, weakening enforcement and
dismantling regulation. By delaying compliance deadlines, Clear
Skies would result in thousands of deaths, asthma attacks, and
hospitalization.
Finally, I hope that we can hope to agree to do something
to guarantee reductions in emissions of carbon dioxide. Global
warming's damaging environmental and economic impacts are upon
us. We must act and act soon.
Thank you. I look forward to your testimony.
Senator Inhofe. Thank you, Senator Jeffords. Senator
Allard?
OPENING STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM THE
STATE OF COLORADO
Senator Allard. Thank you, Mr. Chairman. I would like to
join you, Mr. Chairman and Ranking Member here, in welcoming
Administrator Whitman to this committee. We are all looking
forward to a great discussion on the ``noncontroversial issue''
of the environment and budget.
As you know, Colorado has a storied history between working
with the Environmental Protection Agency on Colorado's
sensitive environmental sites. Our rich resource heritage and a
variety of resource-based issues forces constant interaction
between Colorado and your agency. I use the term ``working with
Colorado'' because that is the relationship I hope the EPA will
continue to foster, working with the various actors to achieve
goals in a positive and nonpunitive manner.
As we discuss the EPA budget request and as funding issues
are raised, I would like to mention a few other important
initiatives that have broad-based policy implications as well
as a budgetary impact.
During the 107th Congress, Senators Crapo, Specter, and I
worked with Senator Jeffords and several of our colleagues,
both Republican and Democrat, to get legislation concerning the
Office of the EPA Ombudsman passed by the Senate. I just want
to take this opportunity to reiterate my dedication to getting
comprehensive legislation passed during this Congress through
an act to establish an effective, independent ombudsman.
I also want to reiterate the relationship of the ombudsman
to the Shaddock Superfund cleanup: that while progress is being
made and shipments of material will begin very soon, it is this
project that first brought the importance of the ombudsman to
light. I will continue to focus on Shaddock until cleanup is
complete and will work with my colleagues to ensure our
ombudsman's goals.
Before I conclude, I would be interested to learn how the
various EPA programs intend to aid States such as Colorado that
have suffered, and probably will suffer in the future, from
ravaging forest fires. This does not mean new money or new
programs; simply a new way of looking at old programs.
The ash and debris from a fire destroys the health of
watersheds, forcing communities to deal with the ramifications
of not only a destroyed landscape, but with drinking water
consequences. I would appreciate any help and guidance that
your agency may offer to address both mitigation and
preparation to deal with the aftereffect of forest fires, those
that have occurred and, obviously, will occur in States like
Colorado again.
That is especially important with one particular case
involving a large municipal water supply in Denver, where we
have from the previous summer the silt and the ash and
everything washing down into the reservoir that provides all
the water for Denver. We are in a drought in Colorado, probably
the worst one in 300 years, and maybe even longer. We have got
a lot of tree ring experts now in Colorado. But it is a
problem. I think that perhaps there will be ways in which we
can get some mitigation there under current programs without
having to create a new program.
Mr. Chairman, thank you and, Administrator Whitman, for
your listening and interest. I need to apologize in advance. I
have two committees going on here at the same time, and I
wanted to be here early to have an opportunity to address the
committee and Administrator Whitman.
Mr. Chairman, now I yield back my time. Thank you.
Senator Inhofe. Thank you, Senator Allard. Senator
Voinovich?
OPENING STATEMENT OF HON. GEORGE V. VOINOVICH, U.S. SENATOR
FROM THE STATE OF OHIO
Senator Voinovich. Thank you, Mr. Chairman, for calling
this hearing. I am pleased that we are holding this hearing,
and I take our committee's responsibility, oversight
responsibilities, very seriously.
In addition, I would like to thank Administrator Whitman
for being here today to discuss the President's proposed budget
for the EPA. I know that you have a very difficult job in
trying to bring a sense of fiscal responsibility to an area
like environmental protection, and I respect the enormous
challenges that you have addressed in working out a budget
proposal, particularly with the pressure that you are getting
from OMB to keep your spending down.
I want to personally thank you for serving as the
Administrator of the EPA and also to thank your husband and
your family for the sacrifice they are making, so that you can
serve our country.
As you know from being a Governor, the burdens placed on
budget by priorities in one area, such as homeland security and
national defense, squeeze out other priorities and can leave
them underfunded. Putting together a budget is a process that
requires responsible prioritizing and fiscal discipline in
order to avoid breaking the bank.
Unfortunately, as is often the case around here,
responsibility often gives way to rhetoric, and the knee-jerk
response to those who claim ``it is just not enough'' is to
offer ``pie-in-the-sky'' budget numbers that are not feasible,
let alone necessary.
In 2002, this past Fiscal Year, I think we should know that
we suffered a budget deficit of $317 billion. In other words,
we spent the entire $160 million Social Security surplus.
According to OMB's numbers, even though we have kept
discretionary spending down in Fiscal Year 2003, and the
President's 2004 budget keeps discretionary spending to an
increase of 4 percent--everybody understands that; that is what
he has got, 4 percent--we will still suffer budget deficits
close to a half trillion dollars--a half trillion dollars--in
2004.
The 4 percent increase in spending is a good start down a
fiscally responsible path. I am pleased the President forced
some hard decisions to be made, but still developed a budget
for EPA that will allow the Agency to continue to focus on
cleaning up and protecting our environment.
That being said, there are a few issues in this budget
proposal that I would like to address today. For example,
October 30, 2002 marked the 30th anniversary of the Clean Water
Act. The anniversary is not only a cause for celebration, but
also a cause to recommit ourselves to achieving the goals of
the act. We have come a long way since the passage of the Clean
Water Act in 1972, but we still have a long way to go.
For example, approximately 45 percent of our waters are
still not clean enough for fishing or swimming. Clean water has
been a priority of mine since I was elected to the general
assembly in 1967 in Ohio and made a commitment to stop the
deterioration of Lake Erie and to wage what I call the ``second
battle of Lake Erie'' to bring that around and restore it.
Last year I worked with my colleagues on this committee to
pass the Great Lakes Legacy Act and to clean up contaminated
sediments. While I am pleased the President recognizes the
importance of this natural resource to the Nation by including
$15 million in the budget for this program, this funding is
well below--well below--the $54 million that was authorized. I
intend to send a letter to the appropriators asking them to
fully fund the Great Lakes Legacy Program.
As a member of this committee, I have also worked hard to
bring attention to the Nation's wastewater infrastructure
needs. That is why I introduced legislation that would
reauthorize funding of the Clean Water State Revolving Loan
Fund. My legislation would authorize a total of $15 billion
over 5 years and provide improved State flexibility to run the
program.
Unfortunately, as Senator Jeffords has pointed out, the
budget just is not adequate in that area. It really needs to be
looked at.
I firmly believe that the Federal Government is responsible
for paying a fair share of the mandate that we have put on
local municipalities and sewer districts to take care of their
combined sewer overflow problems.
Recently, I was in Akron, Ohio and met with the people that
were there, and they indicated that they finally have come up
with a 30-year plan, $370-some million, and they were told that
that plan doesn't fit the rules. It is too long, that it has
got to be 15 years.
I think one of the things that this committee needs to
consider is that, if we have programs out there where we have
mandated costs on State and local government, where we truly
are a partner, that either we ought to come up with the money
to take care of our partnership or understand that some of
these local communities don't have the money necessary to get
the job done.
Now we have a financial problem here. But let me tell you
something: The States and local communities in this country are
really in sad shape today, and I think we need to really start
to look at some of these deadlines that we have set to see if
there isn't a way that we can maybe adjust them and, if we
can't adjust them, then we need to come up with the money to
pay for them.
When I was in Akron the other day, I said, ``Well, 30
years,'' and they said, ``No, it's 15.'' And they said, ``Well,
tell them that that, if it is 15, then you pay for half the
cost.'' We defy logic.
On Monday I had the pleasure of visiting EPA's newly
created National Homeland Security Research Center in
Cincinnati and met with Dr. Paul Gilman. By the way, I know you
wanted to be there and we missed you. By the way, Paul did do a
good job for you.
But since the terrorist attacks of September 2001, this
committee has worked closely with the EPA to identify the
vulnerabilities of our water system and chemical plants, and to
find the means to protect them. I know that Senator Jeffords
and Senator Corzine have worked very hard on these issues.
Although EPA was not moved into the Department of Homeland
Security, it is important the Agency be able to carry out its
responsibilities. We really have to do a better job I think in
terms of science. You have some money in your budget for
science. I would like to know, what are you going to do with
the money, and how have you tried to respond to our concerns
about the fact that the EPA does not have the folks available
to do the kind of science that we think needs to be done?
I think that Senator Inhofe has mentioned that; other
members of this committee have. I would be interested in
knowing, what are you doing with the money that you are getting
and how is Dr. Gilman going to be fitting into that, and what
is your response to my legislation that says that we need to
require a science individual in your Department?
Thank you very much, Mr. Chairman.
[The prepared statement of Senator Voinovich follows:]
Statement of Hon. George V. Voinovich, U.S. Senator from the State of
Ohio
Mr. Chairman, thank you for calling this hearing on the budget of
the Environmental Protection Agency. I am pleased that you are holding
this hearing, as I take our oversight responsibilities very seriously.
In addition, I would like to thank Administrator Whitman for being
here today to discuss the President's proposed budget for the EPA. I
know that you have a very difficult job in trying to bring some sense
of fiscal responsibility to an area like environmental protection, and
I respect the enormous challenges that you have to address when working
out a budget proposal. I personally want to thank you for your
willingness to serve.
As you know from being a Governor, the burdens placed on a budget
by priorities in one area (such as homeland security and national
defense) squeeze out other priorities and can leave them underfunded.
Putting together a budget is a process that requires responsible
prioritizing and fiscal discipline in order to avoid breaking the bank.
Unfortunately, as is often the case around here, responsibility often
gives way to rhetoric and the knee-jerk response to those who claim
``it's not enough'' is to offer pie-in-the-sky budget numbers that they
know are not feasible, let alone necessary.
In 2002, this past fiscal year, we suffered a budget deficit of
$317 billion. In other words, we spent the entire $160 billion Social
Security surplus and then had to go out into the private markets and
borrow an additional $158 billion.
And according to OMB's numbers, even though we kept discretionary
spending down in fiscal year 2003 and the President's fiscal year 2004
budget keeps discretionary spending to an increase of 4 percent, we
will still suffer budget deficits of close to half a trillion dollars
($468 billion and $482 billion, respectively) in fiscal year 2003 and
fiscal year 2004.
The 4 percent increase in spending is a good start down a fiscally
responsible path. I am pleased that President Bush forced some hard
decisions to be made but still developed a budget for EPA that will
allow the Agency to continue to focus on cleaning up and protecting our
environment.
That being said, there are a few issues in this budget proposal
that I would like to address today. For example, October 30, 2002
marked the 30th Anniversary of the Clean Water Act. The Anniversary is
not only a cause for celebration, but also a cause to recommit
ourselves to achieving the goals of the Act. We have come a long way
since the passage of the Clean Water Act in 1972. But we still have a
long way to go. For example, approximately 45 percent of U.S. waters
are still not clean enough for fishing or swimming.
Clean water has been a priority of mine ever since I was elected to
the Ohio General Assembly in 1967 and made a commitment to stop the
deterioration of Lake Erie and to wage what I call the ``Second Battle
of Lake Erie.'' I have continued that fight throughout my career.
Last year, I worked with my colleagues in this committee and in the
Congress to pass the Great Lakes Legacy Act to clean up contaminated
sediments. While I am pleased that the President recognizes the
importance of this natural resource to the Nation by including $15
million in the budget for this program, this funding is well below the
$54 million authorized. I intend to send a letter to the appropriators
asking them to fully fund the Great Lakes Legacy Program.
As a member of this committee, I have worked hard to bring
attention to the nation's wastewater infrastructure needs. That is why
I have introduced legislation that would reauthorize funding for the
Clean Water State Revolving Loan Fund (SRF) program. My legislation,
the Clean Water Infrastructure Financing Act (S. 170), would authorize
a total of $15 billion over 5 years and provide improved State
flexibility to run the program.
Unfortunately, as we on this committee know, billions of dollars
have already been spent and billions more are needed to upgrade the
nation's aging wastewater infrastructure. I firmly believe the Federal
Government is responsible for paying its fair share. The city of Akron,
for example, has proposed to spend $377 million over 30 years to fix
the City's combined sewer overflow problems. Yet, city officials told
me last week as I toured the City's wastewater treatment plant, that
the U.S. EPA is pressuring them to do the work in half the time.
In addition, the Administration's fiscal year 2004 budget proposes
spending cuts for this important program. What I would like to know
from you, Administrator Whitman, is how you expect cities like Akron to
spend millions of dollars for water infrastructure upgrades when the
Administration plans to cut funding for programs like the Clean Water
SRF program. In the absence of sufficient Federal funding, what kind of
assistance can EPA give local communities trying to improve water
quality by investing in infrastructure upgrades?
Senator Carper and I introduced legislation in the last Congress to
strengthen science at the EPA by creating a Deputy Science
Administrator at the Agency. This legislation was based on a 2000
National Research Council study (entitled Strengthening Science and the
U.S. EPA). That report included several recommendations on how to
improve the research, management and peer review practices at the
Agency. I know that Chairman Inhofe has a very serious interest in
ensuring that the Agency utilizes sound science in its decisionmaking--
an interest that I wholeheartedly share. I would like to hear what you
intend to do to increase the use of sound science at the Agency, and
whether or not this budget provides adequate funding for that task.
On Monday, I had the pleasure of visiting EPA's newly created
National Homeland Security Research Center in Cincinnati and meeting
Dr. Paul Gilman, the Assistant Administrator of Research and
Development at EPA. Since the terrorist attacks of September 2001, this
committee has worked closely with EPA to identify the vulnerabilities
to our water systems and chemical plants and to find the means to
protect them. I know that Senator Jeffords and Senator Corzine have
both worked very hard on these issues.
Although the EPA was not moved into the Department of Homeland
Security, it is important that the Agency be able to carry out its
homeland security responsibilities and work closely with that newly
created Department. President Bush's fiscal year 2004 Budget request
for EPA includes $123 million for Homeland Security activities. I would
like to hear what EPA intends to do with this money and how it intends
to work with the newly created Department of Homeland Security.
Again, I would like to thank the Administrator for her attendance
today, and look forward to hearing her thoughts on these issues. Thank
you, Mr. Chairman.
Senator Inhofe. Thank you. Senator Voinovich, you went a
minute over, so we will give everyone else 6 minutes. Senator
Thomas?
OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
STATE OF WYOMING
Senator Thomas. Mr. Chairman, I will try to fix it by
taking four or less. How's that?
[Laughter.]
Welcome, Administrator. I, too, have other committees I
have to go to, but I am very interested in this one, of course.
Being from the western States, we have sort of a unique
arrangement, obviously, with some of the things, the public
lands, and all those things. We had hearings yesterday on
energy and how we are going to be able to continue to provide
the kinds of energy volumes that the American citizens now
utilize. Of course, it has to do with the economy, whether you
are talking about coal or gas or CO2. We must look
to the future. In Wyoming we are doing a pilot project on
carbon sequestration.
We can, I believe, make use of energy resources and still
maintain the environment. That is our real challenge. Wyoming
is a perfect example of where we have been doing that for
years. We are the Btu Capitol of the Nation and at the same
time we have the some of the cleanest air in the Nation.
Also, I hope that we can continue to stress the notion of
having input and local cooperation between the Agency and local
people. I agree with the Senator that some of the water
requirements, and so on, are putting very difficult financial
stress on some of the small communities, and so we need to do
that.
In any event, thank you for what you do, and I know it is
tough to try to figure out what is the best budget, and so on,
but I hope we look beyond the budget as to what it is we want
to accomplish over a period of time, so that we are not just
totally immersed in immediate things, but have a little goal of
where we are going to go and have our dollars take us.
Thank you for being here. Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Thomas. In my opening
statement I talked about the fact that this Administration is
results-oriented, and I think that is exactly what you are
recommending here.
Senator Murkowski?
OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM THE
STATE OF ALASKA
Senator Murkowski. Thank you, Mr. Chairman. Good morning. I
don't have any opening comments I would like to make at this
time other than to commend Administrator Whitman. I am looking
forward to the opportunity to work with you on some issues that
are of particular interest to my State that are probably pretty
isolated. Looking at those that are here to listen, they
wouldn't have much connection with what is going on with our
fish processors or what is happening up in our Red Dog Mine.
But I am looking forward to working with you and perhaps
having an opportunity to sit down and discuss some of our more
local issues directly with you. So welcome this morning.
Senator Inhofe. Governor Whitman, you are recognized now for an
opening statement. Take all the time you want. There's not as
many people here as we thought there would be this morning. You
are recognized.
STATEMENT OF HON. CHRISTINE TODD WHITMAN, ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Ms. Whitman. Thank you, Mr. Chairman. and to members of the
committee, I welcome to the opportunity to be back here with
you to discuss the Fiscal Year 2004 request for the Agency. I
do have a written statement that I would like, with your
permission, to submit for the record.
Senator Inhofe. Without objection.
Ms. Whitman. First of all, I would like to start, Mr.
Chairman, by congratulating you on the assumption of the
chairmanship and indicate I look forward to working with you,
with the staff, and the other members of the committee as we
move forward on our shared goals: a cleaner and healthier
environment for the people of the United States and, as we like
to say, cleaner air, purer water, and better protected land.
The President's budget request of $7.6 billion for the
Environmental Protection Agency provides the funding we need to
advance those goals and to meet our agency's mission to protect
human health and safeguard America's precious environment. It
is a fiscally responsible request that recognizes the many
competing priorities on taxpayer resources, particularly with
respect to homeland security and in a time of possible war,
without shortchanging our commitment to environmental
protection, and that is an important understanding that we need
to share.
The budget request also advances our commitment to building
strong partnerships with State, local, and tribal governments.
More than 40 percent of our budget request, some $3.1 billion,
goes directly for assistance to our non-Federal partners.
I would like to take just a few minutes to point out some
of the highlights of the President's request, and then, of
course, I would be happy to answer any questions that you might
have.
To promote cleaner air, the President's budget requests
$617 million in the next Fiscal Year. These funds will allow us
to improve air monitoring and analyze and provide $16.5 million
in grants to State, tribal, and local governments for air toxic
monitoring. It would also allow us to raise to $23.9 million, a
$3 million increase, our funding efforts to combat childhood
asthma.
In addition, the President's budget supports the
Administration's Clear Skies proposals. Clear Skies, which
would require mandatory reduction in power plant emission of
sulfur dioxide, nitrogen oxide, and mercury by 70 percent, is
the President's most important environmental legislative
initiative this year. I look forward to working with the
committee to move Clear Skies legislation through to the
President's desk.
To promote purer water, the President's budget places a
strong emphasis on our core water programs which have proven so
successful over the years. We propose to increase spending on
those programs by $55 million, for a total of $470 million.
This includes $20 million in the Clean Water Section 106 grants
and $12 million for Public Water System Supervision grants to
our non-Federal partners.
Our proposed budget also includes a $5 million increase in
grants to help State, local, and tribal governments protect
wetlands and $20 million to again fund the program we began
last year to help advance watershed protection efforts in a
number of additional threatened watersheds around the Nation.
This budget also seeks $850 million for the Clean Water
State Revolving Fund, which is less than we requested last
year, as Senator Jeffords has pointed out. However, the
Administration is committed to financing the Clean Water SRF at
this level through 2011, 6 years beyond any previous
commitment. This means the long-term revolving level of the
fund will be at $2.8 billion, a 40 percent increase over the $2
billion commitment that had been made in the last
Administration, although I will note that there was no
commitment made in the enabling legislation that created this.
We also propose to fund the Drinking Water SRF at $850
million a year through 2018, so that it can revolve at $1.2
billion a year, a 140 percent increase over the previous goal
of $500 million.
Given our proposed increase in the core water programs, the
current fiscal restraints, and the variety of innovations that
we are pioneering, we believe that this budget fully supports
our commitment to purer water across the Nation.
To better protect the land, this budget includes two
significant increases. The first, an additional $150 million
for Superfund cleanup. These additional dollars will allow us,
we estimate, to start an additional 10 to 15 construction
projects at Superfund sites nationwide. The second, a $10
million increase over last year's record request for the
Brownfields Program, brings our budget request to $210.7
million for brownfields.
Over the years both the Superfund and the Brownfields
Program have demonstrated their value, not just in restoring
the environment and protecting the health of America's
families, but in revitalizing neighborhoods and communities in
every part of our country.
In addition to our traditional environmental mission, EPA
plays an important role in homeland security. The President's
budget request of $123 million for our homeland security
efforts is incorporated in this budget. These funds will allow
us to carry on the work that we have been doing to protect the
Nation's water infrastructure and will give us resources to
enhance our emergency response capabilities.
Given our time constraints, Mr. Chairman, I would like to
mention just two other areas that are fundamental to our
mission, our ability to use the best available science, to
which you have referred, and to enforce the law. The
President's budget requests a total of $607 million to develop
and apply strong science to address both current and future
environmental challenges. It also adds $503 million, the
largest ever requested for enforcement and a $21 million jump
over our request last year. This will allow us to add an
additional 100 FTEs to our enforcement efforts.
Mr. Chairman, I am confident that our budget request fully
funds and supports our obligation to be both good stewards of
the Nation's environment and good stewards of the taxpayers'
dollars. I would be happy to answer any questions that the
committee might have now.
Senator Inhofe. Thank you, Madam Administrator. You were
just talking about the Brownfield funding. I had an amendment
on there that increased the number of sites by 200,000 to
include the petroleum sites, and I would assume, then, that
that appears to be fully funded to be able to clean those up.
Ms. Whitman. Yes, we are very receptive to that change, and
the ability to include petroleum sites is going to enable us to
address many more of these sites around the Nation.
Senator Inhofe. We will do 5-minute rounds and just keep
going. Others, I am sure, will show up, and if not, I know it
will hurt your feelings if we have to end a little bit early.
[Laughter.]
Senator Jeffords talked about the Clear Skies Act. I just
want to make sure that we get in the record that I don't agree
with his comments there, because I believe that the Clear Skies
Initiative is the largest proposed reduction in pollutants that
any President, any Administration, has ever proposed. Would you
agree with that?
Ms. Whitman. I would, Senator, because this is a mandatory
reduction. The beauty of having Congress do it is that, when
Congress sets the standards, there isn't the same recourse in
the courts. While the Clean Air Act has made enormous strides
in cleaning up our air, we are finding now that we are starting
to hit the point of diminishing returns. There is
overregulation by the Agency, and we believe that marshaling
the private sector through the cap-and-trade mechanism, as has
proven so successful in the Acid Rain Program, will be just as
successful in reducing these three most onerous of pollutants
from power plants. The program is mandatory. It goes directly
at those power plants which have continued to function under
the current Clean Air Act and have caused such a problem for
many of our States.
Senator Inhofe. Some 70 percent reduction by 2018 or----
Ms. Whitman. In 10 years. The beauty of it is, when
Congress passes mandatory standards, as we saw under the Acid
Rain Program, that the utilities begin to take action
immediately because they know what the standards are. We are
not telling them how to reach those standards, but they know
what they are and they know the type of capital investment to
make.
The estimate is, and we are very confident of this because
we know a great deal about utilities, that we will see a 35-
million-ton reduction of those three emissions over the next 10
years beyond what we would get through current business as
usual under the Clean Air Act. That is a 35-million-ton
reduction, better than we will get just continuing down the
path----
Senator Inhofe. I think we need to keep saying that. Also,
you briefly addressed the fact that this has been a successful
story, but the more success you have, the more difficult it is
going to be.
I mean, since the middle seventies our reductions in
pollutants has been about 29 percent, I believe, while we have
had a population increase of 34 percent; we have driven, what,
148 percent of the miles; the GDP has gone up 160 percent, but
we reduced emissions, pollutants, by 29 percent. It is a
successful story.
I would also voice just a very friendly disagreement with
something else that Senator Jeffords said having to do with the
thousands of deaths. I am reminded a little bit of, Senator
Jeffords, when we had Administrator Carol Browner and she
talked about quantifying the number of deaths at that time--
this is the Ambient Air Amendments of 1996--as being 60,000
premature deaths, and that was later downgraded to 40,000 and
then 20,000. Then Dr. Kay Jones went in and did a study, and it
ended up being closer to 1,000. I think it is easy to throw
around a lot of thousands of figures, but I would caution all
of us not to unnecessarily concern people, when perhaps it is
not all that accurate.
I want to in this first round address Tar Creek, and I am
sure it will go into the next round, too. This has been a top
priority, as I mentioned in my opening statement. It is
something that has been involved in delays. Over a period of
time we have spent, I believe, what, $100 million, over a
period of time on it. There are some results there or some
improvements. But I know that we are working on it now, and I
would like to have you take a minute just to provide an update
on what is going on specifically at Tar Creek, the Nation's
worst site.
Ms. Whitman. Certainly, Senator. Remediation of an
additional 457 residential properties, 3 day care centers, and
ten park properties started on November 20th of 2002. The cost
to complete this phase of remediation is estimated to be at
about $15 million.
Residential cleanups, as you noted, have been under way
since 1996. Almost 1,650 properties have been addressed. One
hundred five Indian properties and eight school properties have
been cleaned up, and that cost has been close to $45 million.
Negotiations for an Administrative Order and Consent with
the Department of the Interior, the Gold Fields Mining and Blue
Team Mining to perform and finance the remaining issues before
us on the non-residential portion of mining wastes is ongoing.
So we are seeing significant progress at the site. We are
addressing our attention to the human health risk, and we are
remediating in the homes and the day care centers, where there
is the maximum exposure, but we also recognize that we still
have the commercial interests to deal with, and we are
negotiating those.
We expect that that part of it will take about 2 years to
complete. Upon completion of that, the remedy for the non-
residential portion will be proposed.
Senator Inhofe. When do you think we could expect the
Administration's task force report?
Ms. Whitman. We expect to have the residential sites
cleaned and finished and be out of there in 2 years, and then
we will take up the commercial. I'm not sure, do we know when
we are going to see the report? [confers with her staff] That's
in CEQ. I can't tell you when it will get out of CEQ.
Senator Inhofe. The Tar Creek Task Force was to have a
report. It is my understanding it was due, wasn't it?
Ms. Whitman. It has been completed by the Agency and sent
to the Council on Environmental Protection.
Senator Inhofe. Very good.
Senator Jeffords?
Senator Jeffords. I guess referring to figures from the
past is one thing, but let's look at the figures presently and
what the bill would do. EPA released the Report on Children's
Health Risk from the Environment. Among other things, the
report contained the disturbing statistic that 8 percent, 5
million, of the women of child-bearing age had high enough
levels of mercury in their blood to have a high risk of adverse
effects.
As you know, I have introduced the Clean Power Act, which
requires power plants to reduce mercury by 90 percent over the
next 6 years. By contrast, the Clear Skies proposals we
reviewed last year would actually increase mercury emissions as
compared to full implementation of current law. In effect, no
reduction of mercury would be called for under Clear Skies. In
light of this study, surely the Administration realizes that
such a proposal would be irresponsible.
I understand the EPA is on the verge of finalizing its
Clear Skies proposal for introduction as early as this week. I
welcome that proposal. Perhaps EPA has made some revisions that
I am not aware of, particularly in light of the Agency's
release of this disturbing study.
What revisions has the Agency made to Clear Skies to assure
this disturbing problem of mercury contamination is resolved?
Ms. Whitman. Well, Senator, we share the concern on
mercury, as evidenced in the President's proposal. I would
just, with all due respect, indicate that we are in the process
of establishing a mercury standard. There is no standard now.
There is no mercury MACT standard. That will not be completed
until 2004 and not go into effect until 2007, under the Clean
Air Act. We are moving forward as expeditiously as possible on
that--we are not assuming that Clear Skies passes. It would not
become mandatory until the year 2007, which is why we feel so
strongly that by establishing a standard now that would require
a 70 percent reduction, we would start to see the benefits
immediately because that is what we saw when we introduced the
Acid Rain Trading Program.
There is no mercury MACT now, and we are continuing to move
forward with that process, but the Clear Skies would give us a
definitive number. If Clear Skies passes, it is in the
utilities' best interest to make their capital investment all
at once, and they would start making it now. So we would start
seeing reductions in mercury, we believe, immediately upon the
legislation being signed into law.
Senator Jeffords. We just talked about mercury, but how
many people are dying prematurely every year from power plant
pollution now?
Ms. Whitman. There are no studies, and the Study on
Children's Health did not indicate the causal relationship. In
fact, in mercury it was an emerging issue because we don't have
the trends to indicate specifically that this is where it is
coming from. We don't know the pathway in. Whether it is
ingesting the fish and local consumption, we just don't know at
this point. We need to get more information on that.
Senator Jeffords. Leaving the mercury problem, what about
the prematurity every year from power plant pollution?
Ms. Whitman. We estimate that when Clear Skies is fully
implemented over the next 10 years--that we will see a
reduction of 12,000 fewer premature deaths than we will see
under, again this is assuming that we get Clear Skies through,
than we will under the current Clean Air Act.
Senator Jeffords. It is my understanding that Clear Skies
will increase the number relative to present law, if present
law were put in place. Is that accurate or not?
Ms. Whitman. That is not what any of our studies show, no.
In fact, we would see a decrease of 12,000 premature deaths
beyond which we would expect under the Clean Air Act from
existing regulations. I believe it is 2 million fewer missed
work days from bronchial and asthma attacks because of bad air
quality causing asthma and bronchial attacks.
Senator Jeffords. But wouldn't current law do better than
that?
Ms. Whitman. No, this is better than current law.
Senator Jeffords. On global warming, do you believe in
reducing greenhouse gas emissions will reduce the risk of
economic and environmental damage from global warming and
planet change?
Ms. Whitman. The President has indicated his concern about
the issue of global climate change and has set a target of an
18 percent reduction. We are fully on board with that. We are
supportive of it, and we believe that it is an issue that,
while it needs more science, it still deserves to take action
now. That is what the President has asked for.
Senator Jeffords. Considering the record of the power
plants, why should anyone in Congress or the public believe
that voluntary measures are going to be adequate to reduce the
greenhouse gas emissions at a time to avert global warming?
Ms. Whitman. Well, I would tell you, Senator, and I can get
you all the information, when the President announced his
Greenhouse Gas Initiative, we at the same time announced a
Global Climate Leaders Program. We had nine companies that were
participants then. We are now up to 37.
It is a voluntary program. These companies, ranging from
General Motors to Alcoa Aluminum, come in to us. We have South
Florida Power Company and Miller Brewing Company. These
companies benchmark their greenhouse gas emissions, agree to
targets well below business as usual, and then report to us on
an annual basis on how they are going. Nine of those companies
now have agreed to those standards, agreed to the program, and
have established standards.
Miller Brewing Company I believe is an 18 percent reduction
per barrel produced by 2006. General Motors is doing it on an
automotive, facility-wide basis. It is about a 10 percent
reduction in greenhouse gases, again by 2006, below 2000
levels. So we are seeing a real commitment.
The Energy Star Program, again a voluntary program that we
run, in 2001, the last year for which we have numbers, just by
voluntary purchases by the public when they are informed of the
benefits that can be had, saved the equivalent energy to fuel
10 million homes, reduced carbon emissions the equivalent of
removing 12 million cars from the road, and saved energy bills
of $6 billion.
These programs are working. Voluntary programs are
significant. The benefits are measurable, and we believe that
we can reach that 18 percent target that the President has
established in the timeframe that he has called for.
Senator Inhofe. Thank you, Senator Jeffords.
If there is no objection, I will interrupt our questioning
to give Senator Boxer time for an opening statement. Senator
Boxer, we had opening statements of 5 minutes. You are
recognized if you would like one.
Senator Boxer. That is very kind of you. Thank you very
much.
Administrator Whitman, thank you for being here today. We
are looking at EPA's 2004 proposed budget. We are looking at a
number of other things, too.
Since my schedule requires me to be at Foreign Relations in
just a few minutes, and we have President Karzai from
Afghanistan there, I would like to skip my statement and ask
unanimous consent to place it into the record, and try to ask a
couple of questions, if that is OK with you, Mr. Chairman.
Senator Inhofe. Senator Murkowski, would it be all right if
she asked her questions in advance of yours?
Senator Murkowski. That is fine, but----
Senator Inhofe. Oh, well, let's let Senator Murkowski----
Senator Boxer. I was just going to say I will take my 5
minutes that way.
Senator Inhofe. All right, that is fine.
OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Boxer. I won't go over my 5 minutes. Thank you.
I am very concerned on the mercury issue. I totally
disagree with your statement that your so-called Clear Skies
Initiative is going to get rid of more mercury than current
law. If you read current law and you follow it, which your
Administration hasn't done and doesn't seem to want to do, if
you follow the letter of current law, you are going to see a 90
percent decrease in mercury.
I am going to submit to you a number of questions and
comments written to me by scientists, and I am very interested
in getting your written responses because we really don't have
the time to go back and forth on ``No, it won't,'' ``Yes, it
will.''
So, respecting your answer, I, nonetheless, agree with
Senator Jeffords completely on this, and I don't want to take a
lot of my time, but I will be submitting to you some quotes
from scientists for you to rebut, since you say that you are
going to do a better job.
What are the consequences of kids having mercury in their
blood?
Ms. Whitman. It leads to developmental disabilities. There
are severe concerns about elevated mercury levels in the blood
of pregnant women and in children because it is an inhibitor to
growth and development and intellectual capacity.
Senator Boxer. Exactly, and it really is something, Mr.
Chairman, I would be so proud to work with you on. Just as we
took the lead in the lead issue, regardless of our ideology, we
have got to protect our kids from mercury. We may come up with
different plans on how to do it, but I just want to say that I
was distressed to see the Administration wait so long to
release your report on Children and Environmental Risks. It
finally came out. It was done in June, and then it finally came
out 3 days after The Wall Street Journal had somebody leak--
somebody leaked it to them.
Essentially, it says 4.9 million women of child-bearing age
have elevated levels of mercury from eating contaminated fish,
and approximately 320,000 newborns are at risk of neurological
effects from being exposed in utero.
So my question to you is, this is a terrible problem right
now, and a lot of women of child-bearing age are unaware that
certain fish carry the higher levels. Are you planning some
type of campaign before we get into whether we are going to
pass, which I hope we will, Senator Jeffords' bill, your bill,
or another bill? What is EPA planning on doing to get this
information out to women of child-bearing age.
Ms. Whitman. Well, Senator, as you know, this is the first
time that there has been a report on mercury. The first Report
on Children's Health was really a compilation of available data
and did not mention mercury at all. So we have included it for
the first time. Right now we are working with our Federal
partners to set up the next steps for further research. Mercury
is an issue that we don't know what the pathway is. We don't
know how those elevated levels are turning up, what type of
fish ingestion, whether that it is the way that it is getting
into the bloodstreams. We continue to work very closely, with
States and tribes on how to go forward with fish advisories.
There have been more fish advisories, and that was actually
noted in the report. Much of that comes about because we have
been working so closely with them to help them identify this as
an issue.
We will continue to be aggressive in those areas.
Senator Boxer. I'm sorry to interrupt. It is just my time
is going, and I know you will be aggressive, I hope you will be
aggressive, but now you seem to say it is the first time the
Federal--I am going to send you some of these studies done----
Ms. Whitman. It is the first time in the Children's Health
Report.
Senator Boxer. No, no, in addition to it, that's right.
Ms. Whitman. Yes.
Senator Boxer. But other outside studies done by The
International Journal of Obstetrics and Gynecology, other
scientific studies, Mr. Chairman, say patients who had high
fish diets or who were exhibiting symptoms of mercury exposure,
including fatigue, headaches, joint pain, participated in these
studies, and it doesn't seem to be much question but that this
intake of fish--and there are certain fish that are named; I
don't want to put them out here now because I really want to
see you do that. But I guess my plea to you right now is to
please, please move on this.
Now what I said, when we got this study finally--it was
sitting there since June. We have wasted precious time. There
are women who have no idea, who are of child-bearing age,
pregnant now, eating too much of this fish and getting too much
mercury, and their kids will have problems or could well have
problems. So, regardless of our arguments over the best way to
reduce it, we have got to, it seems to me, wrap our arms around
this one, regardless of party, and move forward.
My last point, and I won't make it a question, is: I am
very disturbed about our abandoning, the Administration
abandoning, polluter-pays for cleaning up Superfund. We have
seen these sites. We have seen them going from 87 sites a year
cleaned to 40. It is an outrage. People in my State are
completely disgusted that we have got the second largest number
of Superfund sites. We want action. We want polluters to pay
into a fund, so that taxpayers don't have to pick up 85 percent
of the cost of this program, which is what your Administration
is doing.
Another time I will get to ask you some more questions.
I thank you for your indulgence, Mr. Chairman.
Senator Inhofe. Thank you, Senator Boxer.
Ms. Whitman. If I could, just on the presumption that the
last had a question with it, just I want to assure you,
Senator, that last year 71 percent of the cleanup was actually
funded by the polluters. As you know, the average has been 70
percent the polluter pays, and we believe that----
Senator Boxer. You are using up the fund. There is hardly
anything left.
Ms. Whitman [continuing]. And we believe that, and those
sites continue to be paid for and we continue to be focused on
getting the polluter to pay.
Senator Boxer. You are talking about lawsuits; I am talking
about the Superfund itself. They are different.
Senator Inhofe. Governor Whitman, I am going to be getting
into that in my line of questioning. At this time I would like
to recognize Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
Since we have been discussing mercury so much this morning,
and specifically as it relates to seafood and the amount of
mercury in the environment there, we would like to think----
Senator Inhofe. Excuse me. I think there is a problem with
your mike.
Senator Murkowski. As to seafood and mercury, in Alaska we
don't seem to have, at least with certain of our fisheries we
don't seem to have the levels of mercury that you might find
perhaps on the Atlantic side.
Unfortunately, it seems that the classifications or the
groupings are just broad. Crab is crab, and you don't designate
whether it is Maryland crab or whether it is crab from our
clear, pristine waters. The same can be said for halibut. The
halibut off Alaskan waters is different, and actually it is a
completely different species than you have on the Atlantic side
or the Greenland side.
Unfortunately, our seafood seems to get lumped into the
same kind of generic categories. If we are going to talk about
the science behind it, we would like to think that there is a
branding or a recognition that we don't just lump and
categorize it all, because it certainly affects our ability to
market our product.
I am not asking for assistance in seafood marketing here,
but just a recognition and an acceptance that, when we look to
the science of it, that we do designate that there might be
differences and that they should be treated accordingly.
Ms. Whitman. Senator, that is a very important point as we
move forward. That is why we work so closely with State and
local tribes in the warnings, recognizing that in the locally
caught fish there are differences. We need to be respectful of
that.
We also regulate the emissions of direct discharge of
mercury into water. We have been encouraging industries to
develop substitutes for mercury. We have seen a reduction of
mercury by 90 percent from medical waste incineration and from
municipal waste incineration.
We are taking a number of steps to address the mercury
issue, but we are very sensitive to the fact that there are
differences in the waters; there are differences in the
deposition of mercury around the country and in fish tissue as
well. So we have to be careful as we move forward, and that is
why we have, to date, have been working, we as an agency have
been working, with the local States and tribes, where
appropriate, to issue those advisories and make sure that those
advisories are well-publicized where they need to be.
But it is going to be the Centers for Disease Control, not
the FDA, that will do the additional testing and make the final
determination. [confers with her staff] It is FDA? OK, it is
FDA that is going to be doing that. So they will be doing that
part of it.
We have an extensive research and development and
assessment program to better understand how mercury behaves in
the environment and in human health, and how to control the
releases in the environment, all of which are part of a
comprehensive approach to ensure that we have the science
behind the concerns that we raise, and that when we raise them
we are cognizant of the differences and don't just have a
broad-brush stroke that captures everybody, when it is not
appropriate to so do.
Senator Murkowski. Since we are talking about seafood, I
mentioned just very briefly in the opening that the seafood
industry in Alaska is a key industry for us. We have had, as
you know, some difficulties of late.
One of the regulations that has come through your
Department, of course, is the discharge from the fish waste, if
you will. There is regulation coming out of EPA that requires
grinding of the waste to less than one-half of an inch in any
dimension. It is my understanding that this standard was
adopted with very little science behind it, if you will,
discussion, or actual study; that, in fact, reducing it to this
small amount, this small standard, actually contributes to
pollution problems. Well, reducing it that low may contribute
to pollution problems because the waste deposits form such
small particles that they don't receive the oxygen that they
need to decompose.
So, in other words, through the regulations, we are
encouraging other problems that we did not anticipate. I would
like to think that we could count on your support to conduct a
new and objective study as to whether these requirements are
really the appropriate standard for all cases, whether it does
need to be reviewed and, if so, how we can address that
problem.
Ms. Whitman. I know our Administrator from Region 10, John
Iani, has been working closely with representatives of the fish
industry and others, and scientists as well, to try to address
this issue. We have, as you know, a satellite office in Juno.
Actually, it is not in Juno, but we have more people in Alaska,
actually, than we have in the office, in the regional office in
Washington State. They have been working very closely on this
issue. We are aware of it, and we are trying to get to the
science behind it in order to make the appropriate final
decision on how to deal with this fish waste.
Senator Murkowski. Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Murkowski.
Let me get back to the discussion on the Superfund
polluters-pay. You know, we hear this all the time. It is
implying that somehow the Administration is letting off the
hook those who are responsible for contamination at Superfund
sites.
I would just like to ask you, Governor Whitman, can you
identify any Superfund site--past, present, or in the
pipeline--where an identifiable and viable polluter has not
been held liable, consistent with the law, for their share of
contamination? Can you identify any?
Ms. Whitman. No, Senator, I couldn't think of an instance
where a viable, responsible party has not been held liable.
There have been instances where we can identify a responsible
party but the company has subsequently gone out of business,
gone into bankruptcy, where we have had difficulty in
recovering. But wherever we know the responsible party, that is
our first line of defenses, our first line of funding for
Superfund sites. Last year we stayed up at the level that has
been consistent throughout the history of Superfund, the 70
percent. We were actually a little bit higher at 71 percent,
but that goes up and down from year to year. We are absolutely
committed to the polluter-pays principle here.
Senator Inhofe. I agree with that. I think we all need to
keep saying it, because we keep hearing things to the contrary.
I think also, and I would ask you this, it is kind of false
to call the expired Superfund tax a tax on polluters, in that
it taxes many people, many entities out there that are not
polluters.
Ms. Whitman. It was certainly a broad-based tax that
captured everyone in the industry, whether they had, in fact,
been responsible for specific pollution or not.
Senator Inhofe. I would like to hear about the Agency's
chemical securities initiatives. I have some real concerns that
multiple government entities are pursuing the same goals, that
it is confusing a lot of people. It is an overlap.
I had personal experience in this in the real world, some
26 agencies in my case all making certain demands, when in this
Information Age we shouldn't have to do that. I think you know
that we are going to introduce legislation which will ensure
that our Nation's chemical infrastructure is secure while
consolidating and streamlining these efforts.
I would like to hear what your thoughts are on that.
Ms. Whitman. Senator, I agree absolutely with the target of
that legislation. I believe it should be streamlined in one
place. Homeland Security we believe has the responsibility for
that. We work with them to support them in any way that we can.
Obviously, right after September 11, 2001, we worked with
the chemical industry associations on vulnerability studies,
the need for vulnerability studies, and we have continued to do
that because we were the Agency that did that kind of thing and
the only ones who were in a position to do it.
But I agree with you that this should not be an area where
you have overlapping jurisdictions. It is too important an
area. We need to ensure the security of our chemical
infrastructure, and if that is Homeland Security, if
legislation passes that gives that to Homeland Security, I am
more than happy to have that rest there with them and have them
do it, but I think there should be one agency, one department,
that has that responsibility.
Senator Inhofe. Which is really the whole key to the
Homeland Security, to consolidate these functions so that you
are listening to one person, one department.
Ms. Whitman. Believe me, I try to give things away. I would
be happy to give this to them.
[Laughter.]
Senator Inhofe. My next question is a pretty long one, so I
am going to yield to Senator Jeffords right now and then pursue
that.
Senator Jeffords. About the Superfund, to follow up on
that, the EPA Inspector General has documented that there was a
funding shortfall of over $200 million in the Superfund program
last year. Seven sites identified as high priority by EPA,
including Elizabeth Mine in Vermont, received no funds while 48
others were underfunded.
What is the EPA doing to ensure that the communities get
the money they need to clean up these toxic sites?
Ms. Whitman. Senator, we are in the process of doing a
whole pipeline review of sites and how sites are brought on to
the National Priority List. We are committed and continue. No
work has stopped, no ongoing work has stopped on any site in
the country. Where we have started work, we are continuing
through with that work.
What goes to the top of the list always is any indication
that we get that a site is posing a threat to human health or
the environment. If it is posing a health threat, we are going
to get on that site one way or another, and we have continued
to do that.
We are seeing sites, obviously, that, as we talked about
last year, that are larger and more complex than sites we have
had to deal with in the past. That is part of the reason why
the number of closures onsites, completions onsites, is not
what we would like it to be, either. But we continue to move
forward. We continue to respond to sites that are of immediate
public or environmental health, and we continue construction
and completion work onsites where we have begun work.
Senator Jeffords. As I mentioned a few moments ago, over
the course of the last year and a half the EPW Committee has
sent a number of informational requests to EPA concerning its
proposed rule changes to the New Source Review Program. By and
large, the Agency's responses have been quite inadequate. In
fact, EPA responded fully to only one of five questions
submitted in a December of 2001 letter, and it has still not
given us a thorough log of documents pertaining to the new NSR
rules.
Questions submitted prior to a July of 2002 hearing
received cursory attention. Many questions were even refused,
based upon claims of ambiguous pre-decisional criteria.
Interestingly, I have received answers to my July post-hearing
questions just last night.
Also unanswered is the December 2002 letter seeking an
estimate of the number of sources that will, under new rules,
be excluded from review. I would like to ask you now, when does
the EPA plan to respond in detail and in good faith to these
questions? What can be done to ensure more timely responses in
the future?
Ms. Whitman. Senator, I understand that it has taken a
significant amount of time for the Agency to respond to your
New Source Review questions, and I apologize for that. As you
know, there were two sets of questions, one pre-and one post-
hearing questions. We made the determination on the post ones
to wait until we had the rule promulgated to be able to fully
answer. I recognize that that has not been satisfactory to you.
We did get a substantial number of those answers to you
finally last night. There are 12 more which I will commit we
will get to you in the next couple of weeks, and we are looking
at the process. We need to do a better job. I can't deny that
you deserve to have your questions answered sooner.
I am not sure we will always agree on what is ``fully
answered'' because of the types of information. You know, they
are very technical questions, as you well know, very detailed
questions. We try to give you the fullest answer possible, but
we are working on that one.
Senator Jeffords. As I mentioned in my opening remarks, I
am concerned that the proposed budget would represent an almost
40 percent cut in funding to the Clean Water State Revolving
Loan Fund. I was one of 38 Members of Congress who sent a
letter last December to the President asking him to make an
investment in clean water infrastructure providing at least
$3.2 billion for Clean Water SRF. Can you explain the rejection
of this advice in the face of well-documented needs, and
without a substantial increase in funds, how can we continue to
maintain and improve our Nation's water quality?
Ms. Whitman. Senator, as I indicated in my opening
statement, this request does represent a cut in that fund
account from last year's request, but, as we look at the
revolving nature of the fund and the level of that revolving
nature, we believe that taking it out to 2011, which is beyond
what had been anticipated--I believe 2006 had been the initial
date--and ensuring that it revolves at a level well above what
was--again, not anticipating the legislation because there was
nothing anticipated in the legislation.
If you also look at some of the other ways to address the
infrastructure challenges that we face, if you anticipate a
real level of growth of 3 percent, there are some other actions
that can be taken. We believe we can close that gap to an
amount that is very manageable, but it is an area where we also
think it is important to look at all the other dollars that we
provide to our State and local partners to address water
issues, not just that--that fund alone, that revolving fund
alone, does not represent the totality of what the Federal
Government provides to States and local governments to address
water infrastructure needs.
Senator Jeffords. My time is up, Mr. Chairman.
Senator Inhofe. Thank you, Senator Jeffords.
Now for the longer question here: In October of 2000, I,
along with JoAnn Emerson, Joe Knollenburg, and others, filed a
lawsuit against the National Assessment on Climate Change for
three principal reasons: First, the purported science was not
subjected to peer review. Second, it did not even attempt to
address a list of items that the relevant law mandated
``shall'' be addressed for any document to qualify as a
national assessment. In fact, it admits that in its
introduction. Then, third, the Freedom of Information Act
inquiries revealed intense political motivation for the report
prior to the 2000 elections.
Ultimately, we agreed to withdraw our complaint in return
for the White House's guarantee in writing that the National
Assessment does not reflect policy positions or official
statements of the U.S. Government. Yet, somehow the EPA revived
the National Assessment by submitting it to the United Nations
as Chapter 6 of the Climate Action Report 2002 as a, quote,
``policy position'' or an official statement of the U.S.
Government.
As you are quite aware, some State attorneys general have
seized on this disavowed, yet somehow revived, document to
claim that EPA must regulate carbon dioxide under the Clean Air
Act.
I guess my question would be, would the EPA cease
dissemination of and withdraw the Climate Action Report because
it plainly fails sound science and other requirements? It is a
question, yes.
Ms. Whitman. Senator, first of all, that Climate Report to
which you refer was part of a report submitted to the United
Nations under the U.N. framework that is required every 4
years. It is an Administration-wide document. The Environmental
Protection Agency simply collated and contributed to one
chapter of that.
But the important thing is that the assessment titled,
``Climate Change Impacts,'' the one to which you refer, has not
become U.S. Government policy, and it did not in this report.
In fact, there are number of places in the report where it
points out the fact that there are potential scenarios here.
This was drawn on for that particular chapter as other things
were drawn on, other documents and other research documents. It
does not represent, though, the position of the Administration.
Chapter 6 of the Climate Report, where this particular
report to which you refer was cited, says in several places
that the information presented there is potential scenario and
does not necessarily represent the position of the U.S.
Government, and the U.S. Government has not changed that
position. But it is documented as research that is out there
that was referred to as just one part of an overall assessment.
Senator Inhofe. And I appreciate that, but the perception
is that this is policy. I would ask you to do what you can do
to clear this up.
Now I understand your Mercury Advisory Group has made
recommendations for reductions that range from 25 percent to 90
percent. So Senator Boxer's 90 percent reduction claim from the
current law may be too high. Would you have any comments to
make about that?
Ms. Whitman. We are, as I indicated to the Senator, in the
process of developing the mercury standard under the maximum
available control technology portion of the Clean Air Act. That
standard has not yet been set. So it would be premature of me
to indicate where it is. I don't know. There is not a standard
yet for mercury.
We recognize that mercury is an emission of great concern.
That is why the President has put it in the Clear Skies
legislation and has called for a 70 percent reduction. It is
why we have worked so closely with the medical incineration
industry and the municipal waste industry. We are also working
to remove mercury from the lake streams at the front end. We
are work with the health care industry and the chlorine
industry specifically to try to get mercury out of their
various products. So we are taking this issue very seriously,
but as far as a standard, mercury standard, for emission from
power plants, there is none yet.
Senator Inhofe. Senator Jeffords?
Senator Jeffords. Regarding the water infrastructure
spending, EPA does not specify where the 3 percent real
increase in spending should come from. Do you support an
increase in rates? Do you support an increase in State
spending? Do you support an increase in Federal spending?
Ms. Whitman. There are a number of different ways that we
believe we can address that infrastructure gap. In fact,
Senator, as you may know, we had a conference of all the
interested parties and stakeholders to address that. They came
up with a number of different suggestions, best practices,
asset management best practices. They have looked at more
flexibility in the dollars that we provide. We are promoting
the environmental management systems again that they have
called for.
So money is going to be one part of it, and what the
consumer pays is going to be a decision left up to individual
companies. As you know, we have real concerns about doing
anything that will increase the cost of any basic service to
the public. On the other hand, we recognize that there is no
one entity that is going to be able to fund this need
exclusively itself. The Federal Government is not going to be
able to do it, and we are going to have to be more creative as
we look at approaches that can address the needs that we see in
providing clean and healthy water to the residents of this
country.
Senator Jeffords. During the 107th Congress, the Great
Lakes and Lake Champlain Act of 2002 was enacted. This law
authorizes $11 million per year for Fiscal Years 2004 through
2008, and for EPA to support Lake Champlain Basins or to
restore and protect Lake Champlain.
Since 1990, the Basin Program has received $19 million. The
action by the 107th Congress authorizes a new phase to the
program. This new authorization appears to be completely
ignored in the President's budget.
Can you explain the fact of why the Agency budget contains
an additional 15 for the Great Lakes and zero for Lake
Champlain?
Ms. Whitman. Senator, the Lake Champlain Basin Program is a
very successful interagency and international partnership. We
intend to continue to our support of that. Region 2 has been
very involved in it. The budget is just over $1 million.
Actually, Regions 1 and 2, both regions will continue their
participation there.
We believe that it is successful, and we believe that we
are helping improve the status of the lake. Reducing phosphate
loading is the biggest issue, and the next largest is the
control of invasive species. We have focused on those issues--
we believe that it has worked very well.
Funds for the Lake Champlain effort have been split in the
past 3 years between the Great Lakes Basin Program, Great Lakes
Champlain Basin Program, and the Rubenstein Environmental Lab
at the University of Vermont, and the Lake Champlain Science
Center. Together with leveraging of those dollars, we are
seeing progress being made on that lake.
Senator Jeffords. Is your Advance Notice of Proposed
Rulemaking relative to the navigable waters limited to comments
related to isolated, intrastate, non-navigable waters and
whether regulations should define isolated waters?
Ms. Whitman. We on that Advance Notice of Proposed
Rulemaking have limited what we have asked for comment on to
those issues that were raised by the Supreme Court. When the
Supreme Court determined that the Agency could no longer use
the Migratory Bird Act as a way to protect isolated waters, we
have focused on that. That, obviously, changed the way we go
forward with those protections. We are asking for comments on
those issues. That is where our focus is.
Senator Jeffords. I have before me a list of 60 point
sources of discharge into Lake Champlain from Vermont and
another 28 sources of discharge into the lake from New York. It
is possible that some or all of these point sources could be
excluded from the protection of the Clean Water Act if the
Agency's rulemaking goes forward. Can you elaborate on which
waters you will be evaluating to determine if the Clean Water
Act should apply?
Ms. Whitman. We don't have a rulemaking now. We have an
Advance Notice of Proposed Rulemaking, and the reason for that,
Senator, is because of the concerns that we have and the
complications and the desire to try to figure out exactly what
the Supreme Court was saying when they limited our ability to
use what had been the standard method of getting at those
waters.
We can't just ignore the Supreme Court. They made a
decision. They said the tool that we had used the most in
reaching isolated waters was no longer the valid tool. We want
to make sure that we can be as protective as possible of these
isolated waters, and we are trying to get from people who
comment on this Advance Notice of Proposed Rulemaking as much
information as possible to allow us to continue to be
protective.
But at this point in time, since it is only an Advance
Notice of Proposed Rulemaking, we don't have anything to
indicate yet what we can do, but we have sent out a guidance to
the field to try to encourage our regional offices to be as
protective as possible.
Senator Inhofe. We have been joined by Senator Carper, and
we would like to ask him if he has an opening statement or if
he would prefer just to question the witness.
Senator Carper. I know these people have been waiting to
hear my statement, Mr. Chairman, but I am going to disappoint
them and ask unanimous consent that my statement be entered in
the record and we will move right to the questions.
Senator Inhofe. Without objection.
Senator Carper. Thanks, Mr. Chairman.
Governor, welcome. How are you?
Ms. Whitman. Very good.
OPENING STATEMENT OF HON. THOMAS R. CARPER, U.S. SENATOR FROM
THE STATE OF DELAWARE
Senator Carper. We are delighted that you are here. We have
got Chairman Greenspan and a lot of our financial industry
regulators over in the Banking Committee talking just about the
deposit insurance changes. So I apologize for being delayed.
I understand you have been talking a little bit about clean
air in my absence, and I would like to explore some items
there. But before I do, let me just ask, if I could, a
budgetary issue, since I think that is the reason why you are
here, to talk about your budget.
In my State, and I know in your State, and perhaps in the
States of my two colleagues, we have a problem with combined
sewer overflows, and it is a real challenge, especially in a
city like Wilmington that has been around for a while, and I am
sure you have it in Trenton and New York and other places.
We use State money. We use city money, the city of
Wilmington's money, New Castle County funds from the northern
part of our State. We use Federal moneys to try to address
these combined sewer overflow needs that we have. There is not
nearly enough money to meet the need. When I talk with other
colleagues, especially from the Eastern Seaboard and from the
Midwest and places where they have cities that have been around
for 100 or 200 years, I hear repeatedly how this is a great
need in their own communities.
With that evidence as sort of the backdrop, my
understanding is the budget that has been submitted to us, it
includes funding to help our States with combined sewer
overflow needs. But that money has actually diminished rather
than enhanced, is that true?
Ms. Whitman. The amount of money, the $850 million
requested in this budget is less than last year's request, but
we did two things. Well, one major thing is to carry that fund
out, make a commitment to carry it out to 2011, which is beyond
what was initially anticipated, 6 years beyond the original
commitment that was made for the SRF.
This would mean that the long-term level of the revolving
nature of the fund would be at about $2.8 billion, which is a
40 percent increase over what had been made, the commitment of
the $2 billion made by the previous Administration.
While we understand the challenges that we all face with
these issues, we believe that this kind of commitment by the
Federal Government represents a substantial portion of what is
going to need to be done to address them, and we are going to
have to work with the other stakeholders to try to close the
gap.
Senator Carper. All right. Just to put it in perspective,
in the city of Wilmington, the estimate for meeting our
combined sewer overflow needs is about from all sources $250
million. It is roughly $250 million. The amount of money that I
think you have mentioned, roughly $2.5 billion, that is what
Delaware could use for one city, Wilmington. It is about one-
tenth of that entire amount forecast for the next 7 or 8 years.
We are a tiny, little State, as you know, and our needs are
dwarfed by those of bigger States like New Jersey or even
bigger States like Vermont.
We are not at all unprepared to spend our own money. We
ought to. States ought to have to have some ``skin'' in this
game, State moneys and local moneys as well. But I would just
say for the record that, while I appreciate the points you
made, it doesn't begin to meet the need that is out there.
Let me also pick up the issue, if I could, of clean air. I
understand there has been some discussion already. Riding down
on the train today, I noticed in the newspaper there was some
reference to I think it was the statement or views of the
National Academy of Sciences with respect to their views on a
10-year delay. It was just a little snippet in the paper, but
my recollection is that they are saying that maybe we have
delayed this enough and it is time to get on with addressing
global warming and taking up seriously the carbon issues.
I have had the privilege of discussing with you my own
views. Senator Jeffords has, as you know, been a champion on
this front in saying it is not enough to address sulfur oxide,
nitrogen oxide, and mercury emissions, but we also need to
address carbon as a concern for global warming and greenhouse
gas.
Senator Chafee and myself, and actually joined by Senator
Baucus and Senator Breaux last fall introduced legislation that
tries to find a middle ground between Senator Jeffords'
approach and the Administration's approach, which I think
Senator Inhofe is going to introduce the Clear Skies
Initiative.
We do say carbon is a problem and we do call for addressing
it in a way not as aggressively as Senator Jeffords has
proposed, but we do call for addressing it. We have a cap-and-
trade system that is in our legislation to try to harness
market forces and we make some changes in resource review. We
don't get rid of it, but we amend it, not end it.
I very much would hope that as we go forward this year that
Senator Inhofe and Senator Jeffords and you and those who
support this centrist approach that we have tried to clear up
will enter into a good dialog, and that maybe out of these
different approaches we can find one that we can agree on that
will actually make a difference in the quality of our lives.
Mr. Chairman, 10 years ago I didn't put much in credence in
this issue of global warming. I went to Ohio State as an
undergraduate. A couple of nationally renown scientists, a
husband and wife team, and I think their last name is Thompson,
Dr. and Dr. Thompson, have done a fair amount of research
around the world measuring the disappearance of snowcaps in
some of the tallest mountains in the world over the last 20
years.
I have listened to them, talked with them, to hear what
they have said. I have come from one who was pretty much a
skeptic 10 years ago to the belief that this is an issue that
we need to address. My hope is that we can come into it with
good faith and manage to find a middle ground. But we need your
help on this as well.
Senator Inhofe. Thank you, Senator Carper.
We are joined by two of our colleagues, and if it is all
right, Senator Cornyn, we would defer to our ranking member
here, Senator Warner, for any comments he wants to make.
OPENING STATEMENT OF HON. JOHN W. WARNER, U.S. SENATOR FROM THE
COMMONWEALTH OF VIRGINIA
Senator Warner. Thank you very much. I welcome the
opportunity to see you again before this committee. I think you
have discharged your responsibilities to the President and the
Nation very commendably. I am delighted that you are going to,
hopefully, continue in this position.
Two subjects of great interest to me: First, the military
implications of the ranges that we have, the training ranges
and other operational areas with our military, and particularly
at this time, Madam Administrator, when we are at an absolute
peak OPTEMPO of training and preparing our people to take on
some possibly extraordinary missions. They are taking them on
now, but others are looming in the future.
Somehow we have got to resolve how these ranges can be
operated 24 hours a day, 365 days a year, and none of it is
incompatible with the environment. I hope perhaps you did it by
exception, maybe naming a range here and there. Because it has
taken this Nation so long to put the body of environmental laws
in place, I am reluctant to try to change them just to protect
the military and its operation of bases.
I don't have any specific plan at this time, but working
with my colleague who, fortunately, also serves the Committee
on the Armed Services, we will approach the President and the
Administration with what we feel is a solution. Hopefully, the
Department of Defense will either join or have a better idea.
But we've got to move out on that, and we've got to move out
swiftly because, otherwise, we are not being fair to these
young men and women in uniform who have to go out and accept
the risk of military service. So that is coming down the pike,
so to speak.
Do you have a comment on it?
Ms. Whitman. I would be delighted to comment on it,
Senator. We have been working very closely with the Department
of Defense, and I don't believe that there is a training
mission anywhere in the country that is being held up or not
taking place because of an environmental protection regulation.
I know there have been some concerns on endangered species,
and not from EPA's perspective, but the Department of the
Interior's perspective on invasive species. I know the
Department of the Interior is working very closely with the
Department of Defense also to ensure that they work out
something that recognizes the need that we have to provide
adequate training to the men and women in our Armed Forces, so
that we never put them in jeopardy.
I believe firmly that we can move forward in a way that is
also protective of the environment. Where we will get into more
of an involvement with the Department of Defense is the cleanup
after they have used a range.
We do need to be protective of the communities around. We
need to be protective of the waterways and of the air, and we
continue to work closely with them, and we believe that those
protections are important protections. But at this point in
time I am not aware of any particular area where environmental
protection regulations are preventing desired training.
Senator Warner. We will be interested in the functions of
the oversight of Interior and the oversight of your
Administration. So we will work in this area.
Second, the reserve fleet or the ships anchored,
particularly in my State and in one or two areas of the
country, I really worked hard to get the $20 million. I hope
that you will begin to contract that money out in this cycle.
Others helped, of course, on it but this took a strong effort
on behalf of the Virginia congressional delegation. I received
strong help from my colleagues.
Because these ships are at anchor. They are utterly useless
for any purpose whatsoever, but they sit there as timebombs
against the environment, should a natural disaster of a
hurricane or something dislodge them from their moorings and
crash them into the adjoining shores. You are aware of this.
We are also mindful of the environmental laws that have
been put in place by the Executive Order that we can no longer
ship these ships overseas and just literally give them away, if
someone will take them, and scrap them, because we feel that we
shouldn't transport some of the environmental hazards that they
have in their old hulls to other nations. That has been
settled. It is settled policy. I know of no thought in this
Administration to reverse that. Am I correct in that?
Ms. Whitman. Well, Senator, we have been working very
closely with the Maritime Administration and looking for
appropriate disposal sites. In fact, there was a joint mission
that went to Mexico to look at a potential agreement there.
They are in Scotland this week.
Senator Warner. China? I beg your pardon. China?
Ms. Whitman. There is a potential visit to China as well.
So we are working very closely with the Maritime
Administration to find areas that would welcome the disposal of
these ships and in an environmentally sensitive way for reefs
or other purposes. As I say, I know there is one this week in
Scotland. They have had one, the trip to Mexico. They have been
meeting, and we anticipate going to China, but it has not been
scheduled yet. They are in the process of scheduling that to
visit the shipyards.
Senator Warner. My staff advises me we lost Mexico when we
couldn't make a decision. Are you familiar with that, what
happened?
Ms. Whitman. I don't at this point believe that anything
has been actually ruled out. The Mexican Government officials
expressed a strong interest in this program, and we are going
to be following up with further contacts. So I am not aware. If
there is something, a decision that they have taken recently,
that indicates they are unable to accept the ships, we will
certainly get to you.
[Ms. Whitman confers with her staff.]
OK, I am informed that in Mexico there was one company that
we were working with that went ahead and made a contract with
someone else, and so we are now looking for other companies in
Mexico. But I don't understand it to be a governmentwide
prohibition.
Senator Warner. I am not here to fault the Administration.
Ms. Whitman. No, no, no.
Senator Warner. I am encouraged that you are reaching out
because we simply have to address this problem. Congress faced
up to it by finding the money in a tough time to locate those
dollars.
So I thank you very much. The $20 million that we've got,
especially on this side with the help of our good friend, the
chairman of the Appropriations Committee, has to be obligated
this year. Are you aware of that?
Ms. Whitman. Yes.
Senator Warner. The other money from the Commerce, $11
million, is the money which you can over a period of years
obligate. But as long as you recognize fully the potential
disaster----
Ms. Whitman. I believe that money went to the Department of
Defense, and they need to allocate it to the Maritime
Administration for the scrapping of these ships. We are
certainly working very closely with everyone to make sure that
we carry out your desires.
Senator Warner. That has been done. So it is clear to go.
All right, you are in charge and you've got your money.
Good luck.
[Laughter.]
Senator Inhofe. Thank you, Senator Warner. Senator Cornyn?
OPENING STATEMENT OF HON. JOHN CORNYN, U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. Thank you, Mr. Chairman. I am sorry I was
delayed a little bit. I was with Chairman Warner in an Armed
Services briefing earlier, but I am glad to be here and glad to
have a chance just to ask a couple of questions of
Administrator Whitman, who has, I think we all know, a very
challenging job.
I, obviously, am new to this committee and the Senate, but
strongly believe that having a sound economy and good job
creation is not inconsistent with having common-sense
environmental rules. But I do believe strongly that they need
to be based on sound science and established technology. If we
have certain goals that exist in our environmental laws, there
ought to be a way for people in practice actually to accomplish
that.
So I wanted to ask really just two questions. One has to do
with, and I understand that there has been some discussion of
mercury and lignite, and forgive me if I am repeating a
question that has already been asked. But lignite coal is of
particular concern in my part of the country, in Texas, and the
Clear Skies Act of 2002 would require lignite-fueled units to
reduce mercury emissions by 40 percent in phase 1 and 69
percent in phase 2.
My question is simply this: Does the technology currently
exist to accomplish this goal, in your opinion?
Ms. Whitman. We believe that under the timeframe, having
done the modeling that we have done and knowing as much as we
do about the industries, the power industry in particular, that
coal will continue to grow as a source of energy, as a base of
energy. It will grow in the West as well as the East.
The utilities will be able to reach these goals; they are
achievable. The cap-and-trade approach that has worked so
successfully in the Acid Rain Program, would allow utilities
enough flexibility to reach these goals in a way that makes
economic sense for them.
Although I will hasten to add that the Clean Air Act
standards do not go away in that we will not allow for
increases in depositions. So that populations near and around
these facilities do not have to fear that they are going to be
at any kind of added health risk.
Senator Cornyn. I certainly support the cap-and-trade
approach and believe that is a reasonable way to approach it.
But you are satisfied that the technology actually exists in
order to accomplish these goals within----
Ms. Whitman. We believe within this timeframe that the
industry will be able to make these goals without forcing any
kind of a shift in fuel away from coal or away from any current
source of fossil fuel.
Senator Cornyn. Forgive me for pressing the point, but my
question really had to do with technology. Do you know whether
the technology currently exists to accomplish that?
Ms. Whitman. Some technologies do exist today to be able to
get us there. Also part of the analysis is it will be a
byproduct benefit of the technologies that we know exist to
remove the SO2 and the nitrogen oxides.
Senator Cornyn. The other question I had has to do with the
voluntary reduction of greenhouse gas emissions. I know the
President, of course, has set a goal of an 18 percent reduction
by 2012. Some have advocated, contrary to the President's
proposal of voluntary emissions reductions, a mandatory
program. I am inclined certainly to support a voluntary program
if, in fact, it will work.
Could you comment briefly on the workability of a voluntary
emissions reduction program?
Ms. Whitman. Certainly, Senator. We held an event,
actually, 2 weeks ago with the Departments of the Interior,
Agriculture, Transportation, and Energy to highlight the
various successes of the voluntary programs.
To just talk about the ones that the Environmental
Protection Agency oversees, our Energy Star Program, as I
indicated before, is a voluntary, consumer-driven or focused
program giving the consumer the information they need to make
intelligent choices. In 2001 the program resulted in purchases
that saved enough power to fuel 10 million home, reduced the
carbon equivalent of 12 million cars, and saved energy costs of
$6 billion.
We have a new program called the Climate Leaders Program,
which was announced at the same time that the President
announced his new climate program. That started with nine
companies that were involved. It is now up to 37. We have
companies that range from General Motors to Miller Brewing
Company, to Alcoa, and all the major industry sectors. Those
that have set their targets--and there are nine of them that
have set the targets--have set very aggressive goals for
reducing their greenhouse gas emissions.
As part of this program, they come to us. They agree to
measure, to benchmark their greenhouse gas emissions, set
targets for reductions that are well below business as usual,
and then to report to us on an annual basis on how they are
moving to achieve those. We are seeing some very real
commitments by industry and are very pleased with what they
have done and those that are coming forward.
Senator Cornyn. Are you satisfied that, as part of this
program, that there will be sufficient standardized reporting
systems to prevent double counting and other such problems?
Ms. Whitman. Part of the President's program that he
announced called for an enhancement of the registry that exists
over at the Department of Energy. We are working closely with
the Department of Energy to establish that.
One of the concerns we have, is that the registry has to be
real. Companies have to be able to go in to show their
greenhouse gas emissions in order to get credit, should there
be any change in the future. That will be a very stringent
requirement. The system will be such that we will be able to
give credit for those that take early action, and yet not allow
for a double counting, as we move forward to our targets and
goals.
Senator Cornyn. Thank you very much. Thank you, Mr.
Chairman.
Senator Inhofe. Thank you, Senator Cornyn.
Let me just share a thought with you, in response to the
question that was asked to you by Senator Warner. We are both
very much interested in encroachment problems on our ranges,
and you are right when you say it is mostly endangered species
problems.
In the case of Camp Pendleton, we are going to be down to
about 30 percent use of the training area because of various
endangered species. We are having the same problem in Camp
Lejeune as well as Fort Bragg and many others. I could talk for
a long time about that.
It is critical because we are talking about American lives.
But I think there are some areas that we might want to be
looking at in your purview, which would be, for example, in the
Vieques Range one of the problems we had there is the losses
having to do with alleged health problems from the air, which
caused or were possibly responsible for closing that live
range.
Then at the Adar range in Kuwait there were--and I am going
from memory now--there were five deaths, four of whom were
Americans, and the report shows clearly that it was because
they did not have the proper training on the ranges. So this is
a life-and-death issue that is not so much having to do with
you, but it is one that we need to be looking at beyond just
endangered species.
I would only say to my good friend, Senator Carper, that I
have enjoyed listening to this whole idea about global warming.
In fact, I have found it can be kind of fascinating, going back
to the 500-year period of the Little Ice Age, between 1350 and
1850, and then going back the other direction, it started
swinging back and going up through 1940 with actually a
different trend; then in 1940 to 1970 having a trend that
defies the argument that it is caused by CO2.
Then, also, the two different ways there are of measuring
the warming trend, if the warming trends are there, the most
accurate one being not on the ground, but in the air. So it is
something that we are all looking at. We find it to be
interesting. We find that these trends have gone back and forth
for many, many centuries, and I only wish we had some global
warming in my State of Oklahoma right now.
With that, I will defer to Senator Jeffords for the fourth
round of questioning.
Senator Jeffords. Senator Warner mentioned the DOD
proposal, that there are certain instances for which a waiver
for DOD would be appropriate. Aren't there exemptions already
contained in current law such as the Superfund for national
security purposes?
Ms. Whitman. Yes, there are, Senator.
Senator Jeffords. The Advance Notice of Proposed Rulemaking
for EPA and the Corps explicitly asked for comment in section 5
as to whether any revisions are needed to the existing
regulations on which waters are jurisdictional under CWA. The
presence of this request for information clearly expands the
scope of your Advance Notice of Proposed Rulemaking to include
all waters under CWA. Is this consistent with your answer to my
first question related to the rulemaking then?
Ms. Whitman. Yes, Senator, it is. We don't believe that we
are expanding--in fact, we were very clear that we wanted to
limit the scope of our response in any Proposed Rulemaking to
the Supreme Court's decision. But, to be intellectually honest,
we would take comments on anything. I mean, that is the way the
comment period works. If comments come in on something, we
respond to it.
But our thrust here and our desire here is to determine how
we can be as protective as possible of these isolated waters,
recognizing that the main tool that we have used in the past is
no longer available to us.
Senator Inhofe. Senator Carper?
Senator Carper. Thank you.
I just want to follow up on Senator Cornyn's observation
about I think the Administration's proposal to reduce, I think
you said, CO2 emissions by what, voluntarily, by 18
percent? Now my understanding, and correct me if I am wrong,
Governor, but that is not an 18 percent reduction below current
levels. That is an 18 percent reduction below what would
otherwise be the case in the year 2012. So there is a fair
amount of growth over the next 8 or 9 years, and this would be
an 18 percent reduction in the growth?
Ms. Whitman. That is correct, 18 percent in emissions
growth.
Senator Carper. I, for a number of years, lived on the
other side of the river, and when Administrator Whitman was
Governor of New Jersey, I was privileged to be Governor of
Delaware. We shared a lot of common issues. Pollution that
might have emitted from Delaware into the water or into the air
could sometimes affect our friends that across the Delaware
River in New Jersey.
We have one refinery in Delaware called the Motiva
Refinery. It is about ten miles south of the Delaware Memorial
Bridge, and it is right on the Delaware River. Back in March of
2001, EPA entered into a consent decree with Motiva Refinery in
an effort to reduce the emissions of sulfur dioxide into the
air. I am not sure how familiar you are with this particular
issue, but it is one that has gotten a fair amount of attention
in Delaware and, as it turns out, in New Jersey as of late.
The consent decree provides for the use of technology to
remove the emissions, but without increasing emissions into the
Delaware River of sodium sulfate. There has been an effort by
the folks who own the refinery, the Motiva people, to come back
and to change the consent decree that so they would end up
putting a fair amount of sodium sulfate into the Delaware,
raising the salt levels, and also perhaps to include minor, but
significant, other emissions into the river.
So we have been having this back and forth between our
Department of Natural Resources in Delaware and Motiva. EPA has
been involved in this as well. It appears to us now that the
people, the environmental regulators in Delaware said to
Motiva, ``Live by the original consent decree. You've got to
abide by that.'' My understanding is that EPA has said
essentially the same. Yes?
Ms. Whitman. Yes, we have agreed to that.
Senator Carper. That decree holds. Good. Thank you for that
assurance.
My question is, do you have any idea if the proposed budget
for EPA in Fiscal Year 2004 would allow the Agency to enforce
the terms of the original consent decree with Motiva? I
presume, based on your first comments, that you would certainly
intend to enforce the original consent decree. But do you have
any idea if you have the money, the financial wherewithal, to
enforce it?
Ms. Whitman. Yes, I am assured by our Enforcement Office,
yes, an unequivocal yes.
Senator Carper. Very good.
Ms. Whitman. We are strong on polluter-pays here.
Senator Carper. Good. Thank you.
I think the question was asked before I got here--it may
have been asked by Senator Jeffords--if you believe that
increasing greenhouse gas emissions would increase the risk of
global warming and climate change. I don't know how you
responded to that. I was just wondering if you would mind
sharing with me what you believe.
Again, the question is, do you believe that increasing
greenhouse gas emissions increases the risk of global warming
and climate change? As I said earlier, 10 years ago I was not
that convinced; I am today. I just would ask what your views
are.
Ms. Whitman. I believe that science shows us that there is
certainly increasing concentration of greenhouse gases in the
atmosphere and that is having an impact on the climate. I don't
know that we know enough to know exactly which of our behaviors
are the most egregious in impacting this, that we still have
work to do, or as the most recent reports have shown, we know
that we can look at science and it will tell us greenhouse
gases concentrations in the atmosphere will cause, and can
cause, changes, but how much of that is due to human behavior--
obviously, it is a part of it--and where those changes will
occur are still things that need to be researched even further.
But there is certainly a recognition that global climate
change is an issue of importance. Otherwise, the Administration
would not be putting as much money into research and into
looking at the hybrid cars and the hydrogen fuel cell, as we
are doing.
Senator Carper. Thanks. Do you believe that increasing the
greenhouse gas emissions increases risk? Do you have any views
on that?
Ms. Whitman. Risk to what?
Senator Carper. The risk of global warming, the risk of
climate change.
Ms. Whitman. Science at this point would certainly tell us
that there is a correlation between greenhouse gas
concentrations in the atmosphere and climate change. Again,
there was a recent report by NASA that indicated that land use,
in fact, has as great an impact, or could potentially have as
great an impact on global climate change as could emissions.
Those are the kinds of questions that have real significance
for our commitment and our investment of dollars and research,
and that is why more needs to be done.
But, certainly, I don't believe, nor does this
Administration, that nothing is occurring. We do believe that
there is an issue with climate change. We want to see more, but
we also, and the President has made it very clear, and that is
why we have our Climate Leaders Program, that is why the
Administration has made the commitment to alternate
technologies, renewable resources, and conservation that we
would like to get through in the Energy Plan. We believe there
are steps we can take now.
Senator Carper. When I spoke earlier, I asked a question
earlier, I mentioned that I had seen something in today's
newspaper reported by, I think it is the National Academy of
Sciences.
Ms. Whitman. Academy of Sciences, yes.
Senator Carper. But it was just a very, very short article.
Did you----
Ms. Whitman. What it was was that was a report that was
requested. There is a working group putting together additional
study parameters on the issues of global climate change. It is
actually chaired by the Department of Commerce. We are a part
of it, but it is an Administration-wide undertaking.
In the course of that, the committee asked for a National
Academy of Sciences review of what they were proposing as an
agenda for additional research. It came back and had several
very positive things to say about the commitment to the
research and the need for additional research, and then it also
outlined areas that they felt the research agenda, could be
strengthened. It is my understanding that--and this is the way
we address all these kinds of things--that those will certainly
be factors taken into consideration before a final plan is put
into place.
Senator Carper. All right, thanks very much. Thank you, Mr.
Chairman.
Senator Inhofe. Thank you, Senator Carper.
I just repeat--I guess I can do that now; it is my turn--
that it is interesting, when you look at the whole global
warming idea, and I mentioned the Little Ice Age that we went
through, and then we went through a cooling-off period that
went all the way up to 1940, and then it started warming. You
get just the opposite.
A lot of people say, well, you have the greenhouse gases,
you have CO2, and that provides an umbrella that
holds it in, and then also that provides an umbrella that would
allow it to actually get warmer. You could use the argument to
make it warmer or cooler.
In fact, logically, the CO2 increased most in
about 1940, but it had just the opposite effect; it started a
cooling-off period. So I don't know; it is something that we do
need to study.
I believe you have two more questions, Senator?
Senator Jeffords. Almost one.
Senator Inhofe. One? OK, you are recognized for ``almost
one'' question.
[Laughter.]
Senator Jeffords. I understand correctly that there is
about 12,000 or more people dying every year from power plant
pollution and that the most adversely affected are the very
young and the very old. I just wanted to know if you agreed
with Mr. Graham over at OMB that the value of our lives
declines as we get older, and should that be a factor?
[Laughter.]
Ms. Whitman. Senator, I would never make that kind of a
statement.
[Laughter.]
Senator Jeffords. Thank you very much.
[Laughter.]
Senator Inhofe. All right, as usual, you are very
straightforward, and I appreciate so much your tenacity and
your willingness to respond to questions in a professional way.
I only wish I were as eloquent as Senator Warner, so that I
could compliment you.
We are adjourned.
[Whereupon, at 11:20 a.m., the committee was adjourned, to
reconvene at the call of the Chair.
[Additional statements submitted for the record follow:]
Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
Thank you Mr. Chairman for calling this hearing today. Thank you,
Ms. Whitman, for your time today to discuss the President's budget for
the EPA. I understand the challenges you face in allocating the EPA's
scarce resources, and I look forward to continue working with you in a
positive fashion, to protect the health and well being of the citizens
of my State and the Nation, and to protect and enhance our environment.
Over the years, EPA has done a good job of working in a positive
and pro-active fashion with the people and communities in my State.
Libby, Montana is an excellent example of this. Although we can
probably all agree that EPA should have intervened in Libby far
earlier, when your agency did act, it acted decisively in responding to
the most immediate public health hazards posed by asbestos
contamination. And, your agency has continued its commitment to Libby,
as we look toward finishing the job and achieving a clean bill of
health for the community.
Obviously, I'll have some questions for you about maintaining
momentum and focus in Libby on the clean-up process, and placing more
emphasis on economic development and health care needs in Libby. But, I
want you to understand how much I appreciate your personal commitment
to the people of Libby.
And, as I have always said, EPA's positive activities in Libby
illustrate how very important the Superfund program is, in providing
the resources, the authority and the expertise needed to address
serious environmental and public health disasters--such as occurred in
Libby--that are far beyond the ability of States and local communities
to handle on their own. The Superfund program is not perfect, no
program is perfect, but it is effective and it is working in Libby,
Montana and across the Nation.
Although Libby stands out because people have died and are dying as
a result of massive asbestos contamination there, Libby is certainly
not our only Superfund site and it's not the only area of our State
where EPA plays a prominent and important role. Indeed, we have the
largest Superfund site in the Nation in the Clark Fort basin, in
addition to the many other sites scattered across our State.
So, I share many of colleagues' concerns about the long-term
viability of the Superfund program. And, although I don't doubt that
you and the Administration are committed to recovering as much of the
cost of cleanup from responsible parties, we all know that those
efforts will never be sufficient to cover the total costs of cleaning
up many of these heavily contaminated sites. The recent EPA settlement
with ASARCO is a prime example, and I will have a more specific
question for you about that issue. But, in general, I'd like to explore
with you how the Administration plans to ensure the Superfund program
is funded adequately in the foreseeable future, and how we can reduce
the overall burden on the American taxpayer, rather than increase that
burden, which is the direction we seem to be headed in.
I would also like to add my concerns about the Administration's
proposed reductions in the Clean Water State Revolving Loan Fund. It's
bad enough that you propose flat funding for the State Drinking Water
Revolving Loan Fund. But, I know you are well aware of the incredible
water and wastewater funding backlogs facing State and local
communities as they simply try to maintain their systems, let alone
update and upgrade them to comply with new mandates.
Rural Montana alone has huge infrastructure needs--I've been told
that the Montana League of Cities and Towns has estimated repair and
replacement costs of around $8 billion to keep these systems going. The
Montana Department of Environmental Quality has estimates of
infrastructure improvement needs of $1.4 billion, but the Agency
believes that figure only represents a part of the picture. To put
these figures in contrast C you have proposed just $850 million for the
Clean Water SRF and $850 million for the Safe Drinking Water SRF.
Also, new EPA and State mandates are creating a variety of
financial and technical problems particularly for small and rural
systems, including a lack of tested models for meeting these new
standards. The burden is on the water districts to comply with these
new mandates, even though, after 4 years of drought, many of these
systems do not have the resources to implement necessary changes as
well as pay for ongoing operation and maintenance. Also, as you know,
it is much more difficult for small systems in general to finance
multi-million dollar improvements to their systems, because they have
so few rate-payers to share in the cost.
Additionally, small systems under 10,000 will receive no money in
the Administration's fiscal year 2004 Budget to do required
vulnerability assessments. There are 35 to 39 systems of that size in
Montana that will need to perform this assessment.
I'd like to explore in more detail with you how we can help these
small and rural communities deal with these enormous costs and
burdens--we have to work with them to find real, workable solutions to
the challenges of providing clean and safe drinking water and
protecting the environment, and doing it in a manner that these
communities can afford.
In sum, Ms. Whitman, I want to make sure that my State continues to
have a positive relationship and partnership with EPA. I look forward
to working with you over the next year.
Thank you Mr. Chairman.
__________
Statement of Governor Christine Todd Whitman, Administrator, U.S.
Environmental Protection Agency
Mr. Chairman and members of the committee, I am pleased to be here
to discuss President Bush's Fiscal Year (FY) 2004 budget request for
the Environmental Protection Agency (EPA). The President's fiscal year
2004 budget request of $7.6 billion provides funding necessary for the
Agency to carry out our mission efficiently and effectively to protect
human health and safeguard the natural environment. Given the competing
priorities for Federal funding this year, namely the War on Terrorism
and Homeland Security, I am pleased by the President's commitment to
human health and environmental protection.
I would like to begin, Mr. Chairman, by emphasizing that the
President's budget request for EPA reflects the Agency's commitment to
cleaning, purifying, and protecting America's air, water, and land. The
request promotes EPA's goals in a manner consistent with fiscal
responsibility by strengthening our base environmental programs,
fostering stronger partnerships, and enhancing strong science.
This Agency remains committed to working with States, tribes, and
other entities to protect human health and the environment. Of the $7.6
billion budget, $3.1 billion would provide direct assistance to States,
tribes, universities, local governments, and other partners. The
President and I both believe that these partnerships are a vital part
of effective environmental management and stewardship. Our budget
request reflects that.
As EPA continues to carry out its mission, I look forward to
building upon a strong base of environmental progress. This budget, Mr.
Chairman, will enable us to carry out our principal objectives while
allowing us to react and adapt to challenges as they arise.
Cleaner Air
The budget requests $617 million to fund our clean air programs,
thereby helping to ensure that air in every American community will be
clean and safe to breathe. This includes $7.7 million more for modeling
and analysis to strengthen the Agency's clean air programs.
Furthermore, this budget supports the President's Clear Skies
initiative, an aggressive plan to cut power plant emissions by 70
percent. Clear Skies legislation would slash emissions of three power
plant pollutants--nitrogen oxide, sulfur dioxide, and mercury-by 35
million tons over and above what would be obtained under current law.
Such emissions cuts are an essential component of improving air quality
and thus environmental and human health. The Clear Skies initiative
would buildupon the 1990 Clean Air Act's acid rain program by expanding
this proven, innovative market-based approach to clean air. Many
counties could be brought into attainment with new ozone and
particulate matter air quality standards based solely on Clear Skies.
Clear Skies would significantly improve air quality conditions even in
counties that would require additional emission reductions. Such a
program, coupled with appropriate measures to address local concerns,
would provide significant health benefits even as energy supplies are
increased to meet growing demand and electricity rates remain stable. I
look forward to working with you, your fellow Members of Congress, and
the President on this landmark legislation.
The budget also includes $16.5 million for air toxics monitoring
grants to State, Tribal, and local entities, a $7 million increase from
last year, aimed at improving our understanding of air toxics exposures
to help implement EPA's comprehensive air toxics strategy. The budget
dedicates $23.9 million, an increase of $3 million, to the Agency's
efforts combating children's asthma. The successful Tools for Schools
Program, which helps schools assess and improve the quality of air
students breathe, and other such efforts will benefit from the added
funding.
Purer Water
EPA's budget request places a strong emphasis on core water
programs to improve our water management framework, program
implementation, and information sharing. The President's request boosts
resources to States, tribes, and various entities to provide technical
assistance, guidance, training, and additional funding. Our core water
programs will increase by $55 million for a total of $470 million. This
includes $20 million for Clean Water Section 106 Grants to help States
improve implementation of the Clean Water Act (CWA) and $12 million
aimed at enhancing State and Tribal drinking water program capacity
through Public Water System Supervision (PWSS) grants. Other efforts
reflected in the budget to provide clean and safe water to the American
public include:
Additional Great Lakes Funding. This budget nearly
doubles the Agency's Great Lakes commitment. EPA is requesting $15
million in support of the Great Lakes Legacy Act to bolster
contaminated sediment cleanup activities. In 2004 the Agency plans to
begin cleanup on two to three new sites. Some of this funding will also
be used for assessment and analysis, resulting in additional cleanups.
Extending the Federal Commitment to the Clean Water State
Revolving Fund (SRF). The President's budget is committed to funding
the Clean Water SRF well above the previous Administration's $2 billion
average annual revolving goal. It finances the Clean Water SRF at $850
million through 2011 and increases the long-term revolving level by
$800 million to $2.8 billion, a 40 percent increase over our previous
goal. At present, there is $42 billion on loan or available for loans
to States and tribes. The expanded commitment is projected to make $63
billion available over 20 years thus allowing States and tribes to
finance an additional 15,000 projects over that period.
Extending the Federal Commitment to the Drinking Water
SRF. EPA also proposes to fund the Drinking Water SRF at $850 million
through 2018 so it can revolve at $1.2 billion per year, an increase of
140 percent above and beyond our prior goal of $500 million.
Protecting Wetlands. Due to a 2001 Supreme Court
decision, tens of thousands of acres of isolated waters and wetlands
may be subject to development that no longer requires a permit under
the CWA. EPA's budget provides a $5 million increase for State and
Tribal wetland protection grants to help them protect these waters and
move the United States closer to no net loss of wetlands.
Helping States Address Nonpoint Source Pollution. The
President's budget allows EPA to work closely with State water quality
agencies, USDA, conservation districts, and others to accelerate
national efforts to reduce nonpoint source pollution. In light of
significant increases in Farm Bill resources, EPA will shift the
program's emphasis in agricultural watersheds from implementation of
pollution reduction projects to planning, monitoring, and assisting in
the coordination and implementation of watershed-based plans in
impaired and threatened waters.
Safer Drinking Water in Puerto Rico. To ensure public
health protection, the Agency requests $8 million to design necessary
infrastructure improvements to Metropolitano, Puerto Rico. When these
infrastructure improvements are completed, EPA estimates that about 1.4
million more people will have access to safer and cleaner drinking
water.
Better Protected Land
To immediately reduce potential human health and environmental
threats, this budget continues our long-standing commitment to clean up
contaminated sites. Superfund, funded at $1.39 billion, includes a $150
million increase over the President's fiscal year 2003 budget request
to start an additional 10-15 construction projects at Superfund sites
nationwide. By strengthening Superfund, one of our base programs, this
budget will continue the progress we have made in completing cleanups
at more than 800 National Priority List (NPL) sites. Cleanup has either
begun or been completed at over 93 percent of Superfund NPL sites.
EPA is committed to building and enhancing effective partnerships
that allow us to safeguard and restore land across America. To do so,
this budget provides $210.7 million, $10 million above last year's
funding request, for the Brownfields program, one of the
Administration's top environmental priorities. The Brownfields program
will draw on these additional resources to enhance State and Tribal
response programs that restore and reclaim contaminated sites. By
protecting land and revitalizing contaminated sites throughout the
United States, EPA continues to expand efforts to foster healthy and
economically sustainable communities and attract new investments to
rejuvenated areas.
Homeland Security
EPA plays a vital role in preparing for and responding to terrorist
or other intentional incidents because of our unique expertise and
experience in emergency preparedness and response to hazardous material
releases. To meet our obligation to protect America's homeland we are
asking for $123 million and 142 FTEs. This request would allow the
Agency to continue providing leadership and guidance for the protection
of the nation's critical water infrastructure while upgrading and
enhancing our emergency response capabilities.
The President's budget reflects EPA's role in protecting public
health and critical water infrastructure in the event of terrorist or
other intentional acts. To ensure the safety and integrity of America's
water infrastructure, resources would be dedicated to working with
States, tribes, drinking water and wastewater utilities, and other
entities to assess the security of these water facilities and develop
emergency response plans where appropriate.
Incorporated in this request are targeted investments to strengthen
the Agency's readiness and response capabilities, including the
establishment of a ``decontamination team,'' state-of-the-art
equipment, and highly specialized training for On Scene Coordinators
(OCSs). Meanwhile, EPA will conduct research and provide guidance and
technical support for Federal, state, and local governments, and other
institutions in the areas of building contamination (chemical and
biological) prevention, treatment and cleanup activities, water
security, and rapid risk assessment.
This budget would also expand our radiological contamination
detection ability across the country and enhance our capacity to
provide near real-time biosurveillance information should a biological
incident occur. In addition, this request provides resources for
Antimicrobials Scientific Assessments, Acute Exposure Guideline Levels,
IT management for vulnerability assessments, environmental crimes
expertise, as well as resources to enhance the Agency's physical
infrastructure security.
Enhancing Strong Science
Sound science is a fundamental component of EPA's work. The Agency
has long relied upon science and technology to help discern and
evaluate potential threats to human health and the natural environment.
Much of our decisionmaking, policy, and regulatory successes stem from
reliance on quality scientific research aimed at achieving our
environmental goals. The budget request supports EPA's efforts to
further strengthen the role of science in decisionmaking by using the
best available sound scientific information and analyses to help direct
policy and establish priorities. We have requested $607 million to
develop and apply strong science to address both current and future
environmental challenges. Our budget supports a balanced research and
development program designed to address Administration and Agency
priorities and meet the challenges of the Clean Air Act (CAA), Safe
Drinking Water Act (SDWA), Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), Food Quality Protection Act (FQPA), and other
environmental statues.
This budget supports increases to funding for research of sensitive
populations such as children and the elderly, our new Aging Initiative,
programs such as Computational Toxicology research, which integrates
modern computing with advances in genomics to help develop alternatives
to traditional animal testing approaches, and the Agency's Integrated
Risk Information System (IRIS). We propose to nearly quadruple our
funding for the modernization and expansion of IRIS-an EPA data base of
Agency consensus human health information on environmental
contaminants.
Additionally, the Agency is taking steps to ensure a high quality
scientific work force. To do so, we are requesting resources for the
Science Advisory Board (SAB), the newly established Science Advisor,
and the STAR Fellowship program. EPA will expand its support for the
SAB, an independent council to Congress and the Administrator on
scientific, engineering, and economic issues that underpin EPA
policies. Like the SAB, the Science Advisor will be responsible for
ensuring the availability and use of the best science to support Agency
policies and decisions and advise the Administrator. To help us educate
new environmental scientists we have requested $5 million for the STAR
Fellowship program. This grant program has funded some of the country's
best scientists and engineers. In addition, we have asked to expand our
post-doc initiative which has encouraged environmental scientists and
engineers to join EPA.
Enforcement
Since EPA's inception nearly 30 years ago, many environmental
improvements in our country can be attributed to a strong set of
environmental laws and our efforts to ensure enforcement of those laws.
State, Tribal, and local governments bear much of that responsibility.
EPA partners with those governments and other Federal agencies to
promote environmental protection and restoration. This budget requests
$503 million, the largest amount ever and a $21 million increase over
last year's request, for EPA's environmental enforcement program. These
additional funds, coupled with our proposed 100 Full Time Equivalent
(FTE) enlargement of the Federal enforcement work force, would help the
Agency maximize compliance and achieve environmental results through an
integrated program of assistance and compliance assurance.
Quality Environmental Information
Information gathering, processing, and delivering are fundamental
to EPA's work because of our reliance on scientific and analytical data
and our close collaboration with external partners. Our goal is to
provide the right information, at the right time, in the right format,
to the right people. To achieve this goal, improve the Agency's
information infrastructure, ensure that the American public has easy
access to environmental information, and expand E-Government in support
of the President's Management Agenda (PMA), we have proposed an
additional $30.5 million investment for a total investment of $202
million in EPA's Environmental Information office.
We will continue development of the National Environmental
Information Exchange Network. The Exchange Network is an electronic
method of sharing environmental data using secure points of exchange.
The primary components of the Exchange Network are the National
Environmental Information Exchange Network Grant Program and the
Central Data Exchange (CDX). The grant program assists States and
tribes in evaluating their readiness to participate in the Exchange
Network, enhances their efforts to complete necessary changes to their
information management systems to facilitate Network participation, and
supports State information integration efforts. The CDX is the focal
point for securely receiving, translating, and forwarding data to EPA's
systems-the electronic reporting gateway to the Agency's information
network. This year the CDX will service 46 States and at least 2,000
private and local government entities.
Ensuring Safe Food
The President's request includes $119.0 million to help ensure that
all Americans will continue to enjoy one of the safest and most
affordable food supplies in the world. To do so, EPA will continue
implementation of the Food Quality Protection Act (FQPA) which focuses
on new science-driven policies for pesticides review, seeks to
encourage the development of reduced risk pesticides that provide
alternatives to older versions, and develop and deliver information on
alternative pesticides/techniques and the best pest control practices
to pesticide users. The Agency is also working to help farmers
transition, without disrupting production, to safer pesticide
substitutes and alternative farming practices. We will reassess
existing tolerances to ensure food safety, especially for infants and
children, and ensure that all registered pesticides meet current health
standards.
A Commitment to Reform and Results
The President's proposed EPA budget for fiscal year 2004 fully
supports the Agency's work. The request demonstrates EPA's commitment
to our principal objectives-safeguarding and restoring America's air,
water, and land resources-by strengthening and refining our base
environmental programs, fostering stronger partnerships, and enhancing
strong science. As we look to the future, I am confident that this
funding will ensure the Agency's fulfillment of our responsibilities to
the American public.
With that, Mr. Chairman and members of the committee, my prepared
statement is concluded. I would be pleased to answer any questions you
may have.
______
Responses of Administrator Christine Todd Whitman to Additional
Questions from Senator Inhofe
Tar Creek Superfund Site
Question 1. The Tar Creek Superfund cleanup is a top priority for
me. There are a number of Federal agencies involved, and EPA is a key
agency. As chairman of this committee, I intend to do all in my power
to make this cleanup work. Would you please provide an update of what's
happening at this site?
Response. For many years, EPA has undertaken actions to protect
public health and the environment in Ottawa County. Certain problems at
and near this site cannot be addressed by EPA alone. A multi-Agency
response is required. Toward that end, one key activity is a Memorandum
of Understanding (MOU) between EPA, the U.S. Department of Interior and
the U.S. Department of the Army. The MOU was signed on May 1, 2003. The
MOU will facilitate cooperation among the signatories to work toward a
coordinated response. Some other current EPA led or funded activities
include:
A water quality study by Oklahoma Department of
Environmental Quality, on Tar Creek, Beaver Creek, the Neosho River,
and Spring River.
Excavation of lead contaminated residential soils. To
date approximately 1,647 residential properties and eight school
properties have been cleaned up and 457 residential properties, 3
daycare centers, and ten parks are being addressed.
EPA is leading negotiations with potentially responsible
parties, including the U.S. Department of Interior, to conduct a
Remedial Investigation and Feasibility Study to address chat piles and
tailing ponds.
Evaluation of whether it is possible to reclaim and
revegetate the mine-scarred land using various revegetation techniques.
A study to determine the percentage of lead contaminated
chat that can be safely used in surface asphalt and in courses base
asphalt for paving.
EPA funded the Quapaw Tribes to monitor the impact of
wind-borne chat pile dust on homes located near the chat.
Superfund
Question 2a. There has been a lot of rhetoric about making the
polluters pay for Superfund cleanups, implying that somehow this
Administration is letting off the hook those who are responsible for
contamination at Superfund sites. Can you identify ANY Superfund site
past, present, or in the pipeline where an identifiable and viable
polluter has not been held liable, consistent with the law, for their
share of contamination?
Response. Since 1989, EPA has managed the Superfund Program
according to the principle of ``enforcement first'' to secure a cleanup
by responsible parties at sites where there is a viable and liable
responsible party. Responsible parties cleanup approximately 70 percent
of the remedial actions. In addition to securing ``PRP-lead cleanups,''
EPA recovers the tax dollars it spends while cleaning up Superfund
sites. Since the inception of the Superfund Program in 1981 through
September 30, 2002, EPA has recovered over $3 billion that may be used
by EPA to perform future cleanups when appropriated by Congress. The
Agency assures the committee that EPA seeks to maximize the
contribution of PRPs to site cleanup.
Question 2b. Isn't it also false to call the expired Superfund tax
``a tax on polluters''--as it taxed many employers that have never
caused contamination at any Superfund site?
Response. Yes. The Superfund taxes consisted of excise taxes on oil
and certain hazardous chemical substances and a corporate environmental
tax levied on a company's alternative minimum taxable income. It is
true that all entities paid the tax without regard to their causing any
contamination at Superfund sites.
Question 2c. Finally, is there any relation between the balance in
the Superfund and the amount of dollars dedicated to cleaning up
Superfund sites or the pace of cleanups?
Response. There is no relationship between the balance in the
Superfund Trust Fund and the amount of dollars dedicated to cleaning up
Superfund sites or the pace of cleanups. Superfund cleanup dollars are
appropriated from both the general fund and the trust fund at the
discretion of Congress. The Superfund program continues to provide
significant results throughout the country even though the sites now
left on the NPL are larger and more difficult to clean up. In fiscal
year 2003, the program is expected to keep pace with the fiscal year
2002 remedial action level. I am pleased to report that the President's
Budget for fiscal year 2004 includes a $150 million increase for
Superfund remedial action activities, which represents a 65 percent
increase over the fiscal year 2003 appropriation.
National Assessment on Climate Change
Question 3. In October 2000, I, Representatives JoAnn Emerson and
Joe Knollenberg and others, filed a lawsuit against the National
Assessment on Climate Change.
Ultimately, we agreed to withdraw our compliant in return for the
White House guaranteeing in writing that the National Assessment does
``not [reflect] policy positions or official statements of the U.S.
Government.''
Yet somehow EPA ``revived'' the National Assessment by submitting
it to the United Nations, pursuant to Articles 4.2 and 12 of the United
Nations Framework Convention on Climate Change, as Chapter 6 of the
``Climate Action Report 2002,'' as a ``policy position or official
statements of the U.S. Government.''
As you are quite aware, some State attorneys general have seized on
this disavowed, yet somehow ``revived'', document to claim that EPA
must regulate carbon dioxide under the Clean Air Act.
Will EPA cease dissemination of and withdraw the Climate Action
Report because it so plainly fails statutory requirements? Please
address:
A. The incomplete status of the Climate Action Report, including
the unfinished, though mandatory, peer review of sectoral analyses,
under the eight requirements of the United States Global Change
Research Act of 1990 as well as Public Law 106-74 which states, ``None
of the funds made available in this Act may be used to publish of issue
an assessment required under section 106 of the Global Change Research
Act of 1990 unless (1) the supporting research has been subjected to
peer review and, and if not otherwise publicly available, posted
electronically for public comment prior to use in the assessment; and
(2) the draft assessment has been published in the Federal Register for
a 60 day public comment period;
B. The Federal Advisory Committee Act.
Response. This question refers to two separate reports: the
National Assessment and the Climate Action Report. The two reports both
deal with climate change but were developed for different purposes and
by different groups. The National Assessment was produced by an
independent Federal Advisory Committee Act, 5 U.S.C. App., (FACA)
committee. The National Science Foundation (NSF) chartered the advisory
committee that produced the National Assessment.
The Climate Action Report 2002 (CAR) is a State Department
document. The CAR is the U.S. Third National Communication that was
prepared and submitted by the United States pursuant to its obligations
under the U.N. Framework Convention on Climate Change (UNFCCC). Since
the UNFCCC was ratified by the United States in 1992, the State
Department has been responsible for developing and submitting each of
the U.S. National Communications under the UNFCCC (i.e., in 1994, 1997,
and 2002).
In 2002, as in previous years, the State Department convened an
interagency team to draft the document. This team included staff from
the Office of Management and Budget, Council on Environmental Quality,
Environmental Protection Agency, the Departments of State, Energy,
Interior, Commerce, Defense, Transportation, the US Global Change
Research Program, U.S. Agency for International Development, and other
Federal agencies. The document was ultimately submitted by the State
Department to the UNFCCC Secretariat on May 28, 2002.
EPA made the document available on its website because of its
advanced web hosting capability, which may have been interpreted as an
indication that this was an EPA report. EPA hosts the Climate Action
Report on its web site solely to assist the State Department in
providing public access to the Report.
Enforcement: Performance Measures
Question 4. Governor Whitman, you have said to the press that the
only true measure of enforcement of our environmental laws is whether
the environment is cleaner. I could not agree more. The health of our
environment is the one true results-based, outcome-focused test of the
effectiveness of our environmental laws.
Others may have as their actual goals:
a) miles of red tape to provide employment security for unions of
bureaucrats, or
b) scare-tactic fund-raising for leftist environmental groups, or
c) lots of litigation to line the coffers of the trial lawyers.
Assuming the health of the environment as our goal, can you tell me
where EPA stands in development of appropriate performance measures for
enforcement?
Response. The Agency has developed several reports to describe the
health of the environment, and the progress EPA's programs have made in
cleaning and protecting the environment. The Agency is about to release
its first ``State of the Environment'' report. The report will describe
the status of the air, water and land in this country. Future updates
to this baseline report will show the impacts of efforts made by the
EPA, States, tribes and the regulated community on the health of the
environment.
EPA also reports on its performance in protecting and improving the
environment through an Annual Performance Report, which the Government
Performance and Results Act (GPRA) requires be submitted to Congress
each year. This report follows the structure of the Agency's current
Strategic Plan, which has strategic goals for Clean Air, Clean and Safe
Water, Waste Management, and Credible Deterrent to Pollution and
Greater Compliance with the Law.
The environmental results of cleaner air, water and land are
attributable to new programs, better run programs, and compliance with
the regulations covering those programs. The ``Credible Deterrent and
Greater Compliance'' Goal (i.e. the compliance goal), highlights the
environmental outcomes of actions taken to bring a regulated entity
back in to compliance. The goal measures the pounds of pollutants to be
reduced from concluded enforcement actions, the percentage of concluded
actions that require pollutant reductions and/or changes in facility
management practices that will help a regulated entity remain in
compliance. This goal also measures the positive behavioral changes in
the regulated community resulting from compliance assistance activities
provided by EPA, the States, or tribes. The compliance goal also
measures key outputs, such as the monitoring EPA accomplishes through
inspections, the training EPA provides its States and tribal regulatory
partners, and the incentives programs made available to facilities in
noncompliance. The incentives program encourages facilities to audit
their activities, correct any instances of noncompliance, and disclose
to EPA the actions taken. The Agency, in return, has the authority to
reduce or completely eliminate any penalties associated with the
discovered and corrected violations.
Safe Drinking Water SRF Funding Versus Clean Water SRF Funding
Question 5. Please explain why the budget request for the Safe
Drinking Water Revolving Loan Fund is consistent with last year's
request while the budget request for the Clean Water Revolving Loan
fund is down.
Response. The President's 2004 budget proposal actually increases
the Federal Government's investment in water and wastewater
infrastructure. Previous Administrations had only committed to funding
the CWSRF program at $1.212 billion in 2004 and 2005 (a total of $2.4
billion), with no funding thereafter. The President is proposing to
extend Federal capitalization through 2011--an additional 6 years, at
$850 million per year, for a total of $6.8 billion. Thus, the
President's proposal provides $4.4 billion more than previous plans.
These additional Federal funds, when combined with other CWSRF funding
sources, are projected to substantially increase the amount of
assistance provided by the CWSRF program in both the short-term and
long-term. That has allowed the Administration to increase the CWSRF
projected long-term target revolving level from $2 billion to $2.8
billion per year: a 40 percent increase.
The Administration is proposing to extend Federal support for the
Drinking Water SRF so it can revolve at $1.2 billion per year, an
increase of 140 percent over the previous goal of $500 million. To
realize this increased revolving level, the Administration is proposing
$850 million for fiscal year 2004 to fiscal year 2018. This proposal
extends the commitment for the DWSRF well beyond the fiscal year 2003
authorization period.
EPA Ombudsman
Question 6a. I understand that EPA has been working on drafts of
proposed Ombudsman legislation. Please provide me with copies of these
drafts.
Response. EPA has been asked to provide technical assistance by
both House and Senate congressional staff concerning EPA Ombudsman
legislation. Upon request, the Agency would be pleased to meet with the
committee to discuss EPA Ombudsman issues or provide technical
assistance.
Question 6b. Do I have your commitment to continue toward enactment
of legislation on the issue of an EPA Ombudsman.
Response. EPA strongly supports an independent, effective,
impartial, ombudsman function in the Agency. As I stated in my letter
to you on April 8, 2003, I believe that the transfer of the function to
the Office of Inspector General (OIG) was a sound decision. No other
office within the Agency provides the ombudsman function with the depth
and breadth of independence and investigatory powers that is provided
by statute to the OIG. I continue to strongly oppose any attempt to
move the ombudsman function elsewhere within the Agency. However, EPA
is always willing to discuss with the committee legislative efforts to
improve EPA policies and programs.
Mercury
Question 7a. Governor Whitman, your Children's Health report
released Monday states that there is ``some increased risk of adverse
effects'' from mercury blood concentrations for 8 percent of women of
child-bearing age, and therefore mercury is ``of concern.'' When you
say ``at risk,'' what does that mean?
Response. ``At risk'' means that the women have mercury exposures
higher than those considered to be without adverse effects.
Approximately 8 percent of women of childbearing age representative of
the United States population based on data from the National Health and
Nutrition Examination Survey (published in April, 2003 in the Journal
of the American Medical Association\1\) had blood mercury
concentrations higher than the U.S. Environmental Protection Agency's
recommended reference dose (RfD) (corresponding to blood mercury
concentrations of 5.8 mg/L whole blood). Methylmercury exposures lower
than the RfD are considered not to be associated with adverse effects.
---------------------------------------------------------------------------
\1\Schober SE, Sinks TH, Jones RL, Bolger PM, McDowell M, Osterloh
J, Garrett ES, Canady RA, Dillon CF, Sun Y, Joseph CB, and Mahaffey KR.
Blood mercury levels in U.S. children and women of childbearing age,
1999-2000. JAMA 289:1667-1674, 2003.
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The specific effects of concern are learning deficits that occur in
the child following fetal exposures of the developing brain during
pregnancy. The risk of adverse effects increases as methylmercury
exposure to the fetus increases. Fetal risk occurs because mercury,
specifically methylmercury, freely crosses the placenta resulting in
transfer of methylmercury from the mother's blood to the fetal blood.
In evaluating risk to the developing nervous system caused by
methylmercury, blood mercury and methylmercury concentrations are used
to indicate how much methylmercury the woman has been exposed to. The
determination of ``at risk'' is based on analysis and identification of
what are called benchmark dose, benchmark dose lower limit and
reference dose values. These values are interrelated.
The National Academy of Sciences Committee on Toxicology of
Methylmercury decided to use the ``benchmark dose'' approach to setting
a level of exposure to methylmercury thought to be without adverse
effects. The ``benchmark dose'' is a statistical method of analyzing
data to determine the dose of a chemical that produces an effect in a
selected percent of the population. Specific to methylmercury, the
``benchmark dose'' was based on blood methylmercury concentrations that
increased the prevalence of children (following prenatal exposure to
methylmercury from their mothers' diets) scoring in the clinically
subnormal range (the lowest 5th percentile) on tests of
neuropsychological function at a rate double that of the background
rate. The background rate refers to the prevalence of clinically
subnormal scores on these tests in a population with background
exposures to methylmercury. In clinical use of these neuropsychological
tests, persons who score in the lowest 5 percent of the overall
population are considered to be in a clinical subnormal range. Another
way of stating this is that children who function at or below
approximately the 5th percentile would be considered significantly
developmentally compromised for the ability that is being measured. For
example, this would correspond to an IQ score of less than 75, or refer
to low performance on standard tests for more specific abilities such
as attention, language, or memory.
When methylmercury exposures reach the ``benchmark dose'' (BMD)
level the prevalence of these low scores would increase from 5 percent
to 10 percent. Because of statistical variability in this estimate of
dose an additional value is calculated called the Benchmark Dose Lower
Limit called the BMDL. The BMDL is the lower limit on the 95 percent
confidence interval around the BMD.
Because the BMD and BMDL for methylmercury are associated with
doubling the percentage of children functioning in the clinically
subnormal range, it was judged by the Committee on Toxicology for
Methylmercury that it would not be advisable to recommend that
methylmercury exposures at the BMD and/or BMDL are without risk because
of the increase in prevalence of adverse neurobehavioral effects. The
NAS Committee recommended use of an ``uncertainty'' factor be used in
setting an exposure considered to be without adverse effects. This
``uncertainty factor'' is an attempt to deal with variability in human
response to a particular dose of mercury. This variability reflects
person-to-person differences in the distribution of methylmercury
through out body tissues (called toxicokinetic variability) and
differences in the sensitivity of tissues to the adverse effects of
methylmercury (called toxicodynamic variability). The NAS Committee
recommended in their report that a factor of not less than 10 be
applied to the BMDL to set an exposure considered to be without adverse
effects. This exposure is comparable to the Reference Dose (RfD).
Following release of the NAS Committee on Toxicology of
Methylmercury's report in the summer of 2000, EPA did an assessment of
the NAS recommendations. This assessment is the basis for EPA's 2001
Reference Dose for Methylmercury which is described on EPA's Integrated
Risk Information System (IRIS) web site (); in EPA's Office of Water's Mercury
Criterion (cited in the Federal Register, Volume 66, Number 5, pages
1344-1359 dated 01/08/01; and in a publication in the peer-reviewed
journal Risk Analysis.\2\
---------------------------------------------------------------------------
\2\Rice DC, Schoeny R, and Mahaffey K. Methods and rationale for
derivation of a reference dose for methylmercury by the U.S. EPA. Risk
Analysis 5:107-115, 2003.
---------------------------------------------------------------------------
To summarize, the BMDL for methylmercury is 58 mg methylmercury /L
of cord blood. The RfD is 5.8 mg methylmercury/L of cord blood. These
blood mercury concentrations are associated with exposures to
methylmercury of 1 mg/kg body weight/day at the BMDL and 0.1 mg/kg body
weight/day at the RfD. As exposures to methylmercury increase from the
RfD and rise to the BMDL, the chances of adverse effects on the
developing nervous system increase. It is not known whether the
increase in risk is linear with increasing exposure. Above the RfD the
risk of adverse effects increases.
The reason women of childbearing age rather than only pregnant
women are considered the population at risk is because mercury has a
long residence time in the body. The time it takes for half of the
mercury absorbed today to be removed from the body is called a ``half-
time''. Due to the fact that body ``compartments'' such as kidney or
brain cannot be analyzed directly, the levels measured in living
people--the ``half-time'' measurements, are based on blood mercury
concentrations. For mercury the half-time in blood is generally about
70 days but may be as long as 180 days. In other words, it takes
between 2 and 6 months for half the day's mercury absorption to be
removed. About half of the mercury present in blood comes from fish and
shellfish that were consumed two to 3 months ago. For this reason
mercury exposures before pregnancy must be considered, as well as
mercury exposures during pregnancy, especially since methylmercury is
likely to affect fetal brain development early in fetal life. Because
mercury is likely to affect fetal brain development early in fetal
life, it's not enough to be concerned about a woman's exposure to
mercury after she becomes pregnant.
Question 7b. The study underlying your report shows that children
born to women with blood levels above 58 parts per billion have
statistically double the risk of decreased performance on the Boston-
naming test. But the report itself states that no women in the entire
Nation have been tested at levels that high. Doesn't this indicate that
the high risks indicated in the report are premised entirely on the
assumption one makes about the uncertainty factor that is appropriate?
Response. The linkage of 58 parts per billion mercury and
statistically double the risk of decreased performance on the Boston-
naming tests refers to the overall basis of the National Academy of
Science's Committee on Toxicology of Methylmercury and U.S. EPA's
approach to setting a mercury exposure standard. In addition, as
reported in the recently published article ``Blood Mercury Levels in
U.S. Children and Women of Childbearing age, 1999-2000'' in JAMA (cited
above) the women examined in the referenced NHANES 1999-2000 NHANES
study were a representative sample of the general U.S. population. The
NHANES study did not seek out women because they ate fish. The range of
blood mercury levels reported in NHANES 1999-2000 was in the high 30
mg/L range which is lower than the BMDL. Based on reports in the peer-
reviewed medical literature there are individuals in the United States
with total blood mercury levels near or above the BMDL of 58 mg/L.\3\
\4\ \5\ \6\ \7\ We do not know how many there are. The NHANES survey
and these studies did not include enough women to predict how many
women in the United States would have blood mercury values over 58 mg/
L. Regarding the size of the Uncertainty Factor used in setting the
Reference.
---------------------------------------------------------------------------
\3\Knobeloch LM, Ziarnik M, Anderson HA, and Dodson VN. 1995.
Imported seabass as a source of mercury exposure: A Wisconsin case
study. Environmental Health Perspectives 103:604-606.
\4\Burge P, and Evans S. 1994. Mercury contamination in Arkansas
gamefish: A public health perspective. J. Arkansas Med Soc 90:542-548.
\5\Gerstenberger SL, Tarvis DR, Hansen LK, Pratt-Shelley J, and
Dellinger JA. 1997. Concentrations of blood and hair mercury and serum
PCBs in an Ojibwa population that consumes Great Lakes region fish. J.
Toxicol. Clinical Toxicology 35: 377-386.
\6\Mahaffey KR, Mergler D. Blood levels of total and organic
mercury in residents of the upper St. Lawrence River basin, Quebec:
Association with age, gender, and fish consumption. Environ Res 77:104-
114, 1998.
\7\Hightower JM, Moore D. Mercury levels in high-end consumers of
fish. Environ Health Perspect 111:604-608, 2003.
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Dose for methylmercury several separate issues need to be
considered in answering this question: the impact of these deficits on
child development, the blood mercury concentration and dietary exposure
at which the proportion of children scoring in the clinically subnormal
range doubles, and the size of the uncertainty factor in comparing the
benchmark dose and the level of mercury exposure considered without
adverse effects, i.e., the Reference Dose.
Turning first to the impact these developmental deficits on child
development. The blood mercury concentration of 58 parts per billion
refers to the mercury concentration in fetal blood at which decrements
occur in performance on numerous tests of the ability to learn and
process information. The Boston Naming test is among these tests, but
the performance decrement is seen on five additional tests of language
acquisition and the utilization of and ability to process information
from the Faroe Islands study, and five endpoints including full-scale
IQ from the New Zealand study. The overall analysis by the National
Academy Committee included examination of results from the Seychelles
Islands studies in their assessment of the impacts of methylmercury
exposure on child development. To place these tests in practical
perspective, the NAS concluded that ``deficits of the magnitude
reported in the [Faroe and New Zealand] studies are likely to be
associated with increases in the number of children who have to
struggle to keep up in a normal classroom or who might require remedial
classes or special education.''
When the U.S. EPA set the 2001 Reference Dose for methylmercury it
relied on the National Academy Committee's report and on independent
peer review\8\ of the Agency scientists' assessment of the NAS report
to develop the RfD for methylmercury (see charts included in response
to question 14). This assessment relied upon multiple tests that are
predictive of reading and mathematics performance, overall academic
performance, and antisocial behavior.
---------------------------------------------------------------------------
\8\The independent peer reviewers compared and contrasted some raw
data as well as summary data for over 50 studies relating to mercury
and its impacts on humans. Refer to ``Water Quality Criterion for the
Protection of Human Health: Methylmercury''; p. 3-1 to 3-53; EPA-823-R-
01-001; January 2001. EPA examined raw data for the Mercury Report to
Congress, op. cit
---------------------------------------------------------------------------
Turning to the question of what exposures produce a fetal blood
mercury in the range of the high 50's mg/L or approximately 58 mg/L.
This blood concentration refers to the blood mercury level reaching the
fetal brain or simply fetal blood mercury. This is the blood mercury
concentration that data from multiple studies indicate harms the fetal
brain to the extent that the number of children scoring in a clinically
subnormal range (in the lowest 5th percentile) on standard tests of
ability to process information (i.e., as shown by important tasks such
as ability to read and do mathematics) doubles. The committee concluded
that exposures producing a doubling of children scoring in a clinically
subnormal range are inadvisable. Consequently the recommendations on an
exposure to methylmercury considered to be without adverse effects
contain a buffer between the exposure causing effects and an acceptable
exposure. This buffer is referred to as an uncertainty factor. EPA used
an uncertainty factor of 10, based on its own review and the
recommendation by NAS.
The uncertainty factor reflects person-to-person differences in the
way mercury is distributed in the body and differences in the
susceptibility of the developing brain to the effects of methylmercury.
The importance of this buffer is already known only 2 years after the
Reference Dose was set. For example, at the time the Reference Dose was
set it was thought that there was a 1:1 ratio between the mother's
blood mercury level and the fetal blood mercury level. It is now known
that some fetuses concentrate mercury to levels three times higher than
the maternal blood mercury concentration. On average fetal blood
mercury is about 70 percent higher than the mother's blood mercury as
is reported in a recently published article by Drs. Stern and Smith,
``An Assessment of the cord-blood: maternal-blood ratio: Implications
for risk assessment,'' in the journal Environmental Health
Perspectives. Some of the fetuses examined in this study had three-and-
a-half times higher mercury levels than their mothers. There will be
other person-to-person differences in how mercury is distributed to
tissues and how sensitive the developing brain is to methylmercury
damage.
Question 7c. Isn't it true that other Federal agencies have used
far less conservative uncertainty factors, resulting in EPA estimating
a far higher number of women of child-bearing age with potentially
unsafe blood levels?
Response. Two U.S. Federal agencies have recommendations on
exposures to methylmercury based on human health effect data. The Food
and Drug Administration's value dates from the early 1970's and bases
its value of 0.4 mg/kg body weight /day on adults using a prevalence of
overt neurological damage (specifically paresthesias) in 5 percent of
the population as its endpoint. The FDA is no longer using this number.
In developing FDA's fish advisories for the at-risk population the FDA
is using on EPA's 2001 RfD for methylmercury of 0.1 mg/kg bw /day.
Currently the FDA is conducting a quantitative exposure assessment for
methylmercury intake from fish consumption to determine appropriate
fish advisory language.
The Agency for Toxic Substances and Disease Registry (ATSDR) has a
minimal risk level for methylmercury to be used in clean-up of waste
sites. After consideration of available data, including the Faroese and
New Zealand data, ATSDR based their study on the Seychelles Islands
data only. ATSDR used an uncertainty factor of 4.5, which is an
uncertainty factor smaller than that of U.S. EPA which used an
uncertainty factor of 10 following the recommendation of the NAS
Committee.
Most recently, the Joint Food and Agricultural Organization/World
Health Organization's Expert Committee on Food Additives recommended a
methylmercury intake of 1.6 mg/kg bw/week or 0.23 mg/ kg bw/day. Their
analysis used both the Seychelles Islands and the Faroes Islands
studies results. (ftp://ftp.fao.org/es/esn/jecfa/jecfa61sc.pdf, p. 20/
22).
There are additional risk assessments for adverse effects of
methylmercury based on adverse effects on the developing fetal nervous
system. The most recent come from JECFA (given above), the United
Kingdom (February of 2003), the European Union (October of 2001) and
finally Germany (2000). All four of these risk assessments use fetal
neurological development as their health endpoint and have recommended
an exposure limit similar to U.S. EPA.
Question 7d. Making data available is one of the problems I'm
trying to correct when I talk about sound science. Has the primary
study upon which you draw your conclusions, the Faroe islands study,
ever made available its raw data supporting its conclusions so that
other scientists can evaluate the data?
Response. It is our understanding that the NAS Committee on the
Toxicology of Methylmercury had full access to the Faroe Islands study
data and conducted analyses of these data in the committee's
deliberations. For specific description of how these analyses were
conducted by the NAS Committee it will be necessary to contact the
National Academy of Sciences. EPA and the independent peer reviewers of
EPA's RfD analysis did not evaluate the raw data from the Faroe Islands
Study. It is EPA's understanding that primary analysis of data was
carried out by the Committee on Toxicological Effects of Methylmercury
of the National Academy of Sciences. Consequently the primary data have
been made available for the expert committee's evaluation. The
conclusions of the NAS committee were based on assessment data from all
three cohorts: the Faroese, the Seychelles, and New Zealand. U.S. EPA's
Reference Dose is based on examination of results from all three
longitudinal cohort studies that were available in 2001: the Faroe
Islands, New Zealand, and the Seychelles Islands.
US EPA did its own analyses to determine the size of the
Uncertainty Factor that should be applied to the BMDL to determine the
Reference Dose. The NAS Committee had recommended a factor of not less
than 10. Based on EPA analyses and the recommendations of EPA's
external peer review panel, the uncertainty factor utilized was 10.
Question 7e. Is it true that one of the two largest studies ever
conducted on mercury health effects, the Seychelles Islands study,
found no health effects, yet this study is not being used to set the
reference dose simply because it found no health effects?
Response. In setting U.S. EPA's 2001 Reference Dose data from the
Seychelles, the Faroe Islands, and New Zealand were evaluated.
Benchmark Dose and Benchmark Dose Lower Limit were calculated for all
three studies. The calculated Reference Doses for both the Faroe
Islands and New Zealand studies are included in the following table as
separate lines. However, the Seychelles Study is not presented as an
individual study and is incorporated into the ``integrative/all
endpoints'' analysis. (Refer to table in Appendix A which provides more
detail on the data used for the integrative analysis). This table can
be found in the EPA's Integrated Risk Information System (IRIS) file
(http://www.epa.gov/iris/subst/0073.htm) and Drs. Rice, Schoeny and
Mahaffey publication in Risk Analysis, 2003.\9\
---------------------------------------------------------------------------
\9\Rice DC, Schoeny R, and Mahaffey K. Methods and rationale for
derivation of a reference dose for methylmercury by the U.S. EPA. Risk
Analysis 5:107-115, 2003.
----------------------------------------------------------------------------------------------------------------
Ingested dose mg/kg/
Test\1\ BMDL05 ppb Mercury Cord day\2\ RfD mg/kg/day
----------------------------------------------------------------------------------------------------------------
BNT Faroes
Whole cohort......................... 58 1.081 0.1
PCB-adjusted......................... 71 1.323 0.1
Lowest PCB........................... 40 0.745 0.1
CPT Faroes
Whole cohort......................... 46 0.857 0.1
PCB-adjusted......................... 49 0.913 0.1
Lowest PCB........................... 28 0.522 0.05
CVLT Faroes
Whole cohort......................... 103 1.920 0.2
PCB-adjusted......................... 78 1.454 0.1
Lowest PCB 52 0.969 0.1..............
Finger Tap Faroes
Whole cohort......................... 79 1.472 0.1
PCB-adjusted......................... 66 1.230 0.1
Lowest PCB 34 0.634 0.1..............
Geometric mean Faroes
Whole cohort......................... 68 1.268 0.1
PCB-adjusted......................... 65 1.212 0.1
Lowest PCB........................... 24 0.447 0.05
Geometric mean Faroes
Whole cohort......................... 68 1.268 0.1
PCB-adjusted......................... 65 1.212 0.1
Lowest PCB........................... 34 0.634 0.1
Smoothed values
BNT Faroes........................... 48 0.895 0.1
CPT Faroes........................... 48 0.895 0.1
CVLT Faroes.......................... 60 1.118 0.1
Finger Tap Faroes.................... 52 0.969 0.1
MCCPP New Zealand.................... 28 0.522 0.05
MCMT New Zealand..................... 32 0.596 0.1
Median values
Faroes............................... 48 0.895 0.1
New Zealand.......................... 24 0.447 0.05
Integrative**/all endpoints.......... 32 0.596 0.1
----------------------------------------------------------------------------------------------------------------
\1\BMDLs from NRC (2000), Tables 7-4,7-5,7-6. Hair mercury was converted to blood mercury using a 250:1 ratio
(WHO, 1990) and an assumption of equivalent maternal and cord levels.
\2\BNT=Boston Naming Test; CPT=Continuous Performance Test; CVLT=California Verbal Learning Test; MCCPP=McCarthy
Perceived Performance; MCMT=McCarthy Motor Test.
In deriving EPA's Reference Dose the BMDLs from the endpoints from
all three studies considered by the National Academy's Committee were
converted using a one-compartment kinetic model to an ingested dose of
methylmercury associated with a corresponding cord blood level. This
resulted in a BMDL of 58 mg methylmercury/L of cord blood as a fetal
mercury exposure that would result in a doubling of the prevalence of
children with developmental deficits severe enough to place children in
a clinically subnormal range on tests of child development. An
Uncertainty Factor is then applied to the BMDL value to recommend a
Reference Dose, expressed as microgram of methylmercury per kilogram of
body weight per day.
Question 7f. Doesn't this selective use of available testing data
produce biased results that may overstate the real risk?
Response. U.S. EPA in setting the Reference Dose for methylmercury
has included in our analysis all available data from the three major
cohort studies that were available in 2000 to set its Reference Dose.
appendix a
Table 7-2 Benchmark Dose Calculations (ppm MeHg in maternal hair) from
various Studies and for Various End Points (``Toxicological
Effects of Methylmercury''; NAS; p. 284; Sep 2000)
----------------------------------------------------------------------------------------------------------------
Study End Point BMD\1\ BMDL
----------------------------------------------------------------------------------------------------------------
Seychelles\2\................................. Bender Copying Errors................. \3\*** 25
Child Behavior Checklist.............. 21 17
McCarthy General Cognitive............ *** 23
Preschool Language Scale.............. *** 23
WJ Applied Problems................... *** 22
WJ Letter/Word Recognition............ *** 22
Faroe Islands\4\.............................. Finger Tapping........................ 20 12
CPT Reaction Time..................... 17 10
Bender Copying Errors................. 28 15
Boston Naming Test.................... 15 10
CVLT: Delayed Recall.................. 27 14
New Zealand\5\................................ TOLD Language Development............. 12 6
WISC-R:PIQ............................ 12 6
WISC-R:FSIQ........................... 13 6
McCarthy Perceptual Performance....... 8 4
McCarthy Motor Test................... 13 6
----------------------------------------------------------------------------------------------------------------
\1\BMDs are calculated from the K-power model under the assumption that 5 percent of the responses will be
abnormal in unexposed subjects (P0 = 0.05), assuming a 5 percent excess risk (BMR = 0.05)
\2\Data from Crump et al. 1998, 2000. ``Extended'' covariates
\3\***indicates value exceeds 100
\4\Data from Budtz-Jorgensen et al. 1999
\5\Data from Crump et al. 1998, 2000.
Question 7g: If power plants did not emit any mercury at all, how
much would this reduce mercury exposure to women of child-bearing age?
Response. People are exposed to methylmercury mainly through eating
fish contaminated with methylmercury. Mercury that ends up in fish may
originate as emissions to the air. Mercury released into the atmosphere
can be deposited near the source or can travel long distances on global
air currents and be deposited in areas far from its original source.
The largest human-generated source of mercury emissions in the United
States is the burning of coal. Other sources include the combustion of
waste and industrial processes that use mercury. Mercury usually is
released in an inorganic form and later converted into methylmercury by
bacteria, primarily in the water. Methylmercury is toxic to humans.
Methylmercury accumulates through the food chain: fish that eat other
fish can accumulate high levels of methylmercury.
As discussed above, there is a plausible link between anthropogenic
releases of mercury from industrial and combustion sources in the
United States and methylmercury in fish. These fish methylmercury
concentrations also result from existing background concentrations of
mercury (which may consist of mercury from natural sources, as well as
mercury which has been re-emitted from the oceans or soils) and
deposition from the global reservoir (which includes mercury emitted by
other countries). U.S. anthropogenic mercury emissions are estimated to
account for roughly 3 percent of the global total, and U.S. utilities
are estimated to account for roughly 1 percent of total global
emissions. Given the current scientific understanding of the
environmental fate and transport of this element, it is not possible to
quantify with precision how much of the methylmercury in fish consumed
by the U.S. population is contributed by U.S. emissions from utilities
relative to other sources of mercury.
Modeling results suggest that most of the mercury emitted to the
atmosphere is deposited more than 50 km away from the source,
especially sources that have tall stacks. There is also wide range of
predicted mercury deposition rates throughout the United States as
source location, climate, and meteorology all play a role in modulating
deposition. These are just some of the reasons why we have not yet been
able to link specific mercury emissions to the amount of methylmercury
available in the food chain.
In the last few years EPA has imposed stringent regulations on
emissions from other large sources of mercury emissions including
Medical Waste Incinerators and Municipal Waste Combustors, reducing
their emissions by over 90 percent. In addition, Clear Skies will
reduce mercury emissions from coal fired power plants by almost one-
half by 2010 and will cap mercury emissions by nearly 70 percent in
2018. These three categories of sources made up nearly three-quarters
of mercury emissions in the US before regulations were imposed.
TMDL Rule
Question 8a: In the 2001 appropriations bill for Military
Construction, Congress prohibited the EPA from using any of its funds
to implement the highly controversial and flawed Clinton Administration
TMDL rule.
Consistent with these congressional concerns about the rule, the
Bush Administration suspended its implementation. Communities and
States are now struggling to develop TMDLs under the existing 1992
regulations, which have been interpreted differently by the courts and
EPA regions.
Further, the 1992 regulations do not address emerging problems
identified by the National Academy of Sciences study required by this
committee.
EPA has an obligation to end the uncertainty for the States and the
regulated community and publish a rule that both protects our waters
but provides States with flexibility in meeting new water quality
objectives.
Has the EPA has now completed the redrafting of the TMDL rule?
Response. No.
Question 8b: When will the rule be submitted for interagency
review?
Response. We do not have a specific schedule at this time.
Question 8c: What is your timetable for promulgating the final TMDL
rule?
Response. We do not have a specific schedule at this time.
EPA and Nuclear Regulatory Commission
Question 9. The fiscal year 2003 Omnibus Conference Report
expressed concern that a recent MOU entered into between EPA and the
Nuclear Regulatory Commission did not fully address jurisdictional
concerns that had been raised in previous years by the Congress. Could
you provide the committee an update as to the progress made on a
revised MOU. Absent legislation, does the Agency have the authority to
address all the jurisdictional concerns expressed by Congress?
Response. EPA and the Nuclear Regulatory Commission (NRC) developed
a Memorandum of Understanding (MOU) to identify how the two agencies
will work together during the decommissioning and decontamination of
NRC-licensed sites. This MOU was developed in response to the direction
from the House Committee on Appropriations. The committee directed EPA
and NRC to work together on an MOU to address the potential for dual
regulation. The committee first addressed the issue of EPA/NRC
coordination at NRC licensed or decommissioned sites in the House
Committee on Appropriations Report on August 3, 1999. Subsequent
Reports by the committee continued to address this issue. The fiscal
year 2003 Omnibus Conference Report criticizes the MOU with the
following language, ``The committee's direction was for the two
agencies to enter into an MOU which would clarify the circumstances for
EPA's involvement at NRC sites ``when requested by the NRC.'' This
direction was not followed.''
EPA and NRC are not currently working on a revision to the MOU. EPA
sent letters signed on April 22, 2003 to the Senate and House Committee
chairs and ranking members on this issue. These letters explain why EPA
believes that monthly reports may not be appropriate and describe
CERCLA legal constraints that would limit EPA's ability to follow the
committee's direction. The letter also explains why EPA should not, as
a matter of policy, waive the possibility of EPA involvement under
CERCLA in response to releases of radioactive material from previously
or currently licensed NRC facilities. The letter further states: ``EPA
believes the current MOU reflects the public interest in carrying out
both EPA's and NRC's programs without significant threat of dual
regulation. However, if the committee's concerns about this issue
remain, EPA will gladly inform the committee prior to listing current
or formerly NRC licensed facilities. We suggest that such notice
substitute for monthly reports on the status of an effort to revise the
current MOU.''
EPA is looking forward to working with NRC on implementation of the
MOU. EPA believes that implementation of the MOU between the two
agencies should help ensure that potential confusion about dual
regulation does not occur regarding the cleanup and reuse of NRC
licensed sites. EPA remains unconvinced that legislative amendments to
CERCLA are necessary.
CERCLA
Question 10. CERCLA (42 U.S.C. sec. 9614) provides, under certain
conditions, liability relief for ``service station dealers.''
Unfortunately, many who are eligible for this exemption may not be
aware of their eligibility. What is EPA doing to ensure that these
small businesses are informed of potential eligibility? Has EPA
developed an application form or other means to inform those who have
been identified as a PRP and may qualify for liability relief under 42
U.S.C. sec. 9614?
Response. EPA has taken numerous steps to implement the ``Service
Station Dealer Exemption'' (SSDE) and to assure that our regional
offices are aware of the exemption requirements. These efforts include
the following: Issuing a memorandum to EPA regional offices on May 31,
2002, entitled ``Use of CERCLA Section 114(c) Service Station Dealers
Exemption'', describing the provision; Discussing SSDE implementation
at several Superfund National Senior Managers' meetings (most recently,
Principal Deputy Assistant Administrator for the Office of Enforcement
and Compliance Assurance led a discussion in March 2003, with National
Superfund Division Directors); Including SSDE in CERCLA New Attorney
Training (next offering May 2003) and also in the Superfund ``PRP
Search Manual''; Meeting with the National Small Business Ombudsman
(March 5, 2003) regarding the SSDE and opportunities for educating both
service station dealers and EPA about the exemption; and redistributing
the May 31, 2002 memorandum to senior regional managers on March 31,
2003.
In addition, EPA met with representatives of the service station
industry on February 25, 2003. During this meeting, EPA committed to
continue to evaluate ways to streamline and standardize implementation
of the SSDE to facilitate the goal of getting properly exempt parties
out of a case as early as possible. Participants at this meeting agreed
that using CERCLA 104(e) information requests would be an appropriate
and efficient method of gathering the information necessary to make a
determination of whether the exemption has been met. Since the time of
this meeting, EPA has begun developing a draft model CERCLA 104(e)
information request for the SSDE. We are also developing model language
incorporating information about SSDE into general and special notice
letters as part of an on-going effort to develop new model notice
letters for use with small businesses.
Compliance Models
Question 11. The Data Quality requirements apply to models. When
will EPA begin its review of its models for compliance, including
access by the public and validation of the models?
Response. In a memorandum signed on 7 February 2003, Administrator
Whitman affirmed the Agency's commitment to``. . . (m)ake publicly
accessible an inventory of EPA's most frequently used models, which
will include information on a model's use, development, validation, and
quality assessment.'' To follow through on this commitment, EPA--in an
effort being coordinated by the cross-Agency Council for Regulatory
Environmental Models (CREM)--has already begun to develop the data base
infrastructure necessary to provide this information through a web-
accessible interface. The CREM is also gathering information from the
various EPA program and regional offices to formulate a list of which
models are most frequently used by EPA.
As the CREM develops this preliminary list of models, it is relying
on the judgment of each of the program and regional offices as to which
models will be included. Eventually, as this inventory of EPA models is
developed further, EPA anticipates that it will contain a wide variety
of models, including the most frequently used models in the Agency.
Starting with a few of the models on this preliminary list, the
CREM has begun to develop content for the inventory. This content
reflects the degree of transparency envisioned by the Administrator's
statement by establishing substantive elements and format in a manner
that both accommodates the diversity of models across the Agency and
enhances cross-Agency consistency and ease of public access. The task
of building the inventory presents a number of challenges and will take
time, but it is a task that EPA has begun.
EPA recognizes that there are two related efforts in response to
the Administrator's memorandum--the task of building this inventory of
models and the task of model validation and quality assessment. The
purpose of the inventory is to document whether-not ensure that-a model
has been subjected to evaluation and validation. Model validation and
quality assessment is primarily the responsibility of the EPA office
that is the model owner. To assist the various EPA offices, the CREM is
coordinating the development of Agency guidance on model evaluation,
another task enumerated in the Administrator's 7 February memorandum.
Department of Defense Environmental Legislation
Question 12. Governor Whitman, you testified that, ``We have been
working very closely with the Department of Defense, and I don't
believe that there is a training mission anywhere in the country that
is being held up or not taking place because of an environmental
protection regulation,'' and ``[A]t this point in time I am not aware
of any particular area where environmental protection regulations are
preventing desired training.''
At the same time, Assistant Administrator for Enforcement and
Compliance Assurance J.P. Suarez testified that, ``[T]he
Administration's bill appropriately takes account of the interests of
the American people in military readiness and in environmental
protection. I am confident that DoD and EPA can work together within
the framework of the proposed law to ensure that America's armed forces
are able to train to carry out their national security mission and that
the Agency is able to carry out its mission of protecting human health
and the environment.''
Why do you believe that the environmental legislation proposed by
the Department of Defense should be enacted when you also apparently
believe there is no instance where it is needed?
Response. Although the laws and regulations that EPA administers
have not impeded readiness in the past, we believe the negotiated bill
language appropriately addresses two equally compelling national
priorities: military readiness and the protection of human health and
the environment. We understand and support DoD's desire to protect
against litigation EPA's longstanding, uniform regulatory policy
regarding the handling of munitions.
______
Responses of Administrator Christine Todd Whitman to Additional
Questions from Senator Voinovich
MTBE: Oxygenate Standard Petition
Question 1. In 2001, California petitioned EPA to waive the Federal
oxygenate requirement for its fuels. This request, which was denied by
the Agency, was made in response to an MTBE ban imposed by Governor
Davis in response to concerns over groundwater contamination. The ban
was originally set to eliminate all ethers including MTBE by January 1,
2003. However, the deadline has been pushed back to January 1, 2004
because of concerns that the ban will cause supply constraints and
price spikes. As you may know, New York is currently scheduled to
phaseout MTBE at the same time as California. Because New York imports
such a high percentage of its oxygenated fuels, this ban could severely
strain gasoline supply in New York and cause significant price
increases. Do you anticipate that either of these States will petition
EPA for a waiver of the oxygenate standard as California did in 2001,
and if so, do you intend to grant or reject those waivers?
Response. In a January 6, 2003 letter to Administrator Whitman, the
New York State Department of Environmental Conservation (NYSDEC)
requested a waiver from the oxygen requirement for reformulated
gasoline (RFG) in the New York City area. We responded in a letter
dated April 1, 2003 to NYSDEC, notifying them that ``the application
and supporting information fail to address the requirements specified
in the statute'' and that ``without the necessary technical supporting
documentation, we are unable to evaluate the merits of the request and
can take no further action.'' We provided a list of questions and
information needs and once we receive further information from NYSDEC,
we will then continue our evaluation of New York's request.
It is not possible at this time to say whether we will grant or
deny New York's request. Section 211(k)(2)(B) of the Clean Air Act
establishes specific criteria that must be met before EPA may grant a
waiver of the RFG oxygen content requirement. Under this section, EPA
may waive the oxygen mandate, in whole or in part, ``upon a
determination by the Administrator that compliance with such
requirement would prevent or interfere with the attainment by the area
of a national primary ambient air quality standard [NAAQS].'' We are
not able to say whether or not New York will be able to meet the
criteria of 211(k)(2)(B) until we receive additional technical data
from them and we have conducted a rigorous substantive analysis on such
data.
Wastewater Infrastructure
Question 2. What are your thoughts on establishing a long-term
sustainable and reliable source of Federal funding for wastewater
infrastructure, such as a trust fund?
Response. EPA has not taken a position on the creation of a ``trust
fund,'' supported by special or dedicated Federal, State and/or local
fees, to finance water and wastewater infrastructure through the State
Revolving Fund programs. Unfortunately, stakeholders may be uninformed
about what a ``trust fund'' means in the context of dedicated Federal
revenues. First of all, the assets of the fund would belong to the
Federal Government, and as trustee, the Federal Government can make
unilateral changes to the terms and conditions of the ``trust.''
Second, a new fund for water pollution may run into budget scoring
difficulties. For these reasons, we believe that reaching agreement on
a dedicated funding source or sources would be difficult because of
competing priorities and interests.
Clean Air Act Oxygenate Standard
Question 3. Earlier this month, I introduced, along with a number
of my colleagues, legislation that will provide statutory relief for
California and New York by repealing the Clean Air Act's oxygenate
requirement and triple the amount of ethanol produced in this country.
This legislation is identical to the fuels package included in last
year's energy bill (S. 517), which was strongly supported by the
Administration. Do you plan on supporting this vital legislation again
during this Congress?
Response. The Bush Administration supports the fuel provisions of
energy legislation that passed the Senate last year. That legislation
would have maintained the environmental benefits of the Reformulated
Gasoline program (RFG), prevented toxics backsliding, removed the RFG
oxygen mandate, imposed a Federal phaseout of MTBE and included a
national Renewable Fuels Standard. As the Assistant Administrator for
the Office of Air and Radiation, Mr. Jeffrey Holmstead, stated in his
testimony before the Senate Environment and Public Works Committee on
March 20, 2003, the Administration reaffirms its support of your
legislation, that is consistent with this approach.
Great Lakes
Question 4. The budget contains a total of $33.6 million for EPA's
Great Lakes efforts. However, if the new funding for the Legacy Program
is removed, we see that the budget for the Lakes has been flat over the
past few years. The EPA's Great Lakes National Program Office needs
more funding because, among other things, it monitors ecosystem
indicators, supports local protection and restoration of important
habitats, and promotes pollution prevention. What will the entire
budget for the Great Lakes go toward, and how does this compare to the
needs of the Lakes?
Response. The $33.6 million Great Lakes budget supports
coordination by the Great Lakes National Program Office (GLNPO) of U.S.
responsibilities under the Clean Water Act and the Great Lakes Water
Quality Agreement with Canada. GLNPO will work to implement the Great
Lakes Strategy in a community-based approach with Federal, State,
Tribal, and local partners. Specific activities will include
monitoring, toxics reduction, ecosystem protection and restoration, and
addressing emerging or strategic issues such as invasive species and
the Lake Erie dead zone.
EPA will assess and report on the state of key Great Lakes
ecosystem components, including trends in toxics in air and fish; beach
closings; trophic status; phosphorus; and contaminated sediment
remediation. GLNPO will also continue to lead development of management
recommendations to address the inexplicably low dissolved-oxygen levels
in Lake Erie, which have resulted in an increasing ``dead zone,''
despite U.S. and Canadian success in achieving total phosphorus
targets.
Through the Great Lakes Binational Toxics Strategy, EPA will
continue to target persistent, toxic substances for reduction and
virtual elimination. Using voluntary and regulatory tools to achieve
reductions, EPA will stay on target for meeting 2006 goals for: PCBs
(90 percent use reduction), Mercury (50 percent use and release
reduction), and dioxins and furans (75 percent release reduction). EPA
and partners will accelerate the pace at which contaminated sediments
are addressed. Over the past 5 years, GLNPO and partners have
remediated 100,000 to 400,000 cubic yards of contaminated sediments
annually, in order that persistent toxics, which could adversely affect
human health will no longer be biologically available through the food
chain. With the $15 million proposed in support of the Great Lakes
Legacy Act. The Agency will increase the number of new remedial action
starts in the Great Lakes by all partners from three annually to five
to six annually. Goals will include completing cleanup of all known
sites in the Basin before 2025 and potentially accelerating the time
required to de-list Areas of Concern (AOCs). EPA is working with States
and local groups from the AOCs to expedite AOC de-listing. EPA, States,
and local communities will strategically target reductions of critical
pollutants and restoration of impaired beneficial uses through RAPs for
AOCs and through LaMPs for Lakes Ontario, Michigan, Superior, and Erie.
The Agency will support the efforts of States, Tribes, and local
communities to protect and restore important habitats, emphasizing
habitats important for biodiversity and ecological integrity, such as
those necessary for endangered and threatened species. Cooperative
efforts initiated with other Great Lakes Wetland Consortium members to
implement the only basin-wide monitoring of Great Lakes coastal
wetlands will continue. GLNPO will contribute its share toward the
Great Lakes Strategy objective of protecting/restoring 100,000 acres of
coastal and inland wetlands by 2010. In support of the Strategy's
Invasive Species objectives, GLNPO will work with partners to enhance
and monitor the effectiveness of the Chicago River Invasive Species
barrier, report on results of a joint ``No Ballast on Board'' study,
and finalize a plan for a rapid response to the introduction of
invasive species.
Question 5. As I mentioned during the hearing, funding for the
Great Lakes Legacy Program in EPA's budget is well below the $54
million authorized in the Act. Last year, the General Accounting Office
completed a study on the cleanup of contaminated areas in the Great
Lakes and found a significant lack of funding, which is one of the
contributing factors to the ``slow progress of cleanup efforts.''
Congress passed the Legacy Act to address this funding shortfall: $50
million for cleanup, $3 million for research and development, and $1
million on public information grants. The funding in EPA's budget,
while welcome, is inadequate. Can you tell me what funding is needed in
the Great Lakes for remediation, what the $15 million would be spent
on, and what impact increasing this amount to a total of $54 million
would have on the Lakes?
Response. The $15 million requested under the Legacy Act will be
used for projects. It will increase the number of new remedial action
starts in the Great Lakes by all partners from three annually to five
to six annually. It will advance progress under the Great Lakes
Strategy by accelerating the pace of contaminated sediment remediation.
Goals include completing cleanup of all known sites in the Basin before
the Great Lakes Strategy goal of 2025 and potentially accelerating the
time required to de-list Areas of Concern.
Question 6. As Governor in 1998, I released the State of the Lake
report for Lake Erie because I was concerned that we had not
established baseline information to document where we started or to
track the progress we had made. Ten indicators were developed to
measure environmental, economic, and recreational conditions related to
the quality of life enjoyed by those living near or using the waters of
Lake Erie. The Lake Erie Quality Index Report provides a baseline to
measure our progress and shows the progress we have made to date, as
well as the challenges for the future. Since this has proven to be
invaluable to those of us concerned specifically with Lake Erie, I
strongly believe it would be advantageous for the entire Great Lakes so
that we can measure and track progress as well as identify areas of
concern. Is the EPA currently doing or planning to do anything like
this in the broader sense to measure where we have come from, where we
are, and where we need to go in terms of the quality of the Great
Lakes?
Response. The Indicators being developed via the biennial State of
the Lakes Ecosystem Conferences (SOLEC) are intended as a
comprehensive, basin-wide set of indicators that will tell us whether
we are meeting the goals of the Great Lakes Water Quality Agreement``.
. . to restore and maintain the chemical, physical, and biological
integrity of the waters of the Great Lakes Basin Ecosystem'' and
provide answers to ``simpler'' questions such as: Can we drink the
water?; Can we eat the fish?; and Can we swim in the water? Over 50
governmental and non-governmental sectors were represented in
contributions to the State of the Great Lakes 2001 document. Eighty
indicators have been developed, and others have been proposed. Thus
far, SOLEC indicator development and reporting are voluntary efforts.
SOLEC indicators do not currently identify ``where we need to go.''
Recognizing the need for a higher level baseline of progress on the
Great Lakes and the need to identify ``where we need to go'', EPA has
proposed a Great Lakes index as a part of GPRA reporting which is based
upon SOLEC. This SOLEC-based index is in the March 5 draft of the new
Agency Strategy .
Subobjective 4.3.3 on Goal 4, page 19 reads:
By 2008, prevent water pollution and protect aquatic systems so
that overall ecosystem health of the Great Lakes is improved by at
least 2 points. (2002 Baseline: Great Lakes rating of 22 on a 40 point
scale where the rating uses select Great Lakes State of the Lakes
Ecosystem indicators based on a 1 to 5 rating system for each
indicator, where 1 is poor and 5 is good.).
Index components are: coastal wetlands, phosphorus concentrations,
sediment contamination, benthic health, fish tissue contamination,
beach closures, drinking water quality, and air toxics deposition. The
Agency Strategy also includes ``Strategic Targets'' for toxic
concentrations in fish and air, for AOC delisting, and for sediment
remediation. The Strategic Targets were taken directly from or derived
from the Great Lakes Strategy.
City of Akron's CSO Problems
Question 7. The city of Akron and the Ohio EPA are working out a
$377 million Long Term Control Plan to fix the City's CSO problems over
the next 30 years. To pay for the proposed upgrades, the City will be
implementing a series of 2 to 6 percent rate increases over the next 23
years. As a result, rates will more than double. However, the City
informs me that the U.S. EPA, which must also approve the Plan, is
seeking to require the City to complete the work in 12 to 15 years,
less than half the time. How is the City expected to comply with such a
mandate if the Federal Government does not provide the funding to get
the job done?
Response. Financial assistance is available under Ohio's Clean
Water State Revolving Fund loan program. The fiscal year 2004
President's Budget Request extends the Clean Water State Revolving Fund
through 2011 and increases the Federal commitment by $4.4 billion.
Question 8. If the Federal Government won't help provide the
funding, shouldn't the Federal Government be more flexible with the
deadlines?
Response. EPA is aware of the requirements for investments of time
and resources for the preparation and implementation of a LTCP. In our
coordination with municipalities and our State partners, EPA strives
for achievement of environmental improvements as quickly as possible,
while at the same time recognizing the legal, financial and
administrative burden on municipalities in shouldering this
responsibility. Decisions on implementation schedules are made on a
case-by-case basis, and are negotiated between regulatory agencies and
specific communities. We recognize that financial capability is a
significant factor in determining an appropriate implementation
schedule for CSO controls.
Water Infrastructure
Question 9. In December, Senator Sarbanes and I sent a letter with
37 other Senators to the President requesting a significant increase
for the Clean Water and Drinking Water State Revolving Loan Fund
programs. Specifically, we asked for $3.2 billion for the Clean Water
SRF program and $2 billion for the Drinking Water SRF program. Given
the billions of dollars in water infrastructure needs across the
country, can you explain whether the EPA's budget request adequately
addresses these needs?
Response. We believe EPA's budget request, in the context of the
President's new Clean water SRF capitalization plan, is sufficient to
address the projected infrastructure investment gap. It is important to
remember that the SRF programs only provide one source of funding for
water infrastructure. The primary source of funding comes from local
sources in the form of user fees. In addition, there are many other
Federal and State programs that help fund infrastructure costs besides
the SRF programs. Finally, the estimates of future infrastructure costs
do not consider the significant cost savings that could result from the
use of full cost pricing and Sustainable Management Systems including
environmental management systems and asset management systems. EPA will
actively support the pursuit by States and systems of these cost saving
opportunities.
Question 10. I was a strong supporter of the Wet Weather Quality
Act of 2000 that was enacted in 2000. The bill created a 2-year, $1.5
billion grant program to States for combined sewer overflow and
sanitary sewer overflow projects. Although the Administration requested
funding for the program for fiscal year 2002, Congress did not
appropriate any funding for the program. Last year, I offered an
amendment to the Water Investment Act to extend the program for another
5 years. Do you believe there should be more grant moneys available to
communities to help pay for water infrastructure projects?
Response. EPA supports the Clean Water and Drinking Water State
Revolving Funds (SRFs) as the primary vehicles to direct Federal
financial assistance to water infrastructure projects. The revolving
nature of the funds and their ability to leverage dollars makes them a
more efficient tool than grants for infrastructure assistance.
Question 11. Last year, Congress enacted legislation that requires
most water systems to perform a vulnerability assessment of their water
treatment and distribution systems and prepare or revise their
emergency response plans. What funding has been provided to date for
small, medium, and large systems to help offset the cost of these
assessments and emergency response plans?
Response. EPA targeted funds to activities that apply to all water
utilities as well as size of drinking water system-specific efforts.
For instance:
$5 million supported the development of a wide range of
technical assistance and training tools, including models that would
assist both drinking water and wastewater systems in conducting
vulnerability assessments. Approximately 8,000 operators of water
utilities have received training on water security issues and
approaches.
About $50 million was awarded directly to more than 400
of the largest water systems (each of which regularly supplies drinking
water to over 100,000 people) to assess their vulnerabilities and to
develop or revise their emergency response plans.
$17 million was allocated to the States to support their
efforts to provide technical assistance and training to medium
(supplying water to more than 50,000 but less than 100,000 people) and
small (serving more than 3,300 but less than 50,000 people) systems in
their vulnerability assessments and emergency response plans
activities.
A total of $1.5 million to 5 non-profit organizations,
each of which will receive about $300,000, has recently been awarded.
These organizations will provide no-cost training to State, tribal or
local agencies on such activities as vulnerability assessments and
emergency response plans. The focus of this training is to support
vulnerability assessments and emergency response planning by some 7,500
small systems.
EPA staff is reviewing proposals submitted by nonprofit
organizations in response to a Request for Proposal to provide training
to the approximately 480 community water systems (each of which serves
between 50,000 and 100,000 persons) in conducting their vulnerability
assessments that are to be submitted to EPA by September 30, 2003 and
in completing emergency response plans. ($1.7 million is available for
award upon completion of this competitive process.)
Nearly all of the $5 million in STAG (State and Tribal
Assistance Grants) funds to help States coordinate their efforts with
EPA and utilities to implement critical water infrastructure protection
activities was awarded.
In sum, about $80 million, or 90 percent, of the $88.8 million in
the fiscal year 2002 supplemental appropriations for water security was
directed to large, medium, and small systems' vulnerability assessments
and emergency response plans. The remainder supported two major
activities: 1) the development and implementation of the water
information sharing and analysis center (WaterISAC), a web-based,
password-protected, secure site that provides threat alerts and other
security-related information to drinking water and wastewater
utilities; and 2) research and technology development endeavors to more
fully understand and address water security issues.
Question 12. What funding is provided in the EPA's fiscal year 2004
budget for vulnerability assessments and emergency response plans?
Response. Because of the June 30, 2004 deadline for the submission
of vulnerability assessments by an estimated 7,500 small drinking water
systems, only 9 percent, or $2.3 million, in the fiscal year 04
President's Budget request of $24.8 million in the Science and
Technology appropriations account will be targeted to support to these
systems for conducting vulnerability assessments and developing or
revising emergency response plans. Major financial and technical
support to all drinking water systems subject to the Public Health
Security and Bioterrorism Preparedness and Response Act of 2002
(Bioterrorism Act) is being funded by fiscal year 02 and fiscal year 03
appropriations.
With the fiscal year 04 requested funds, EPA will be focusing on
the other two major provisions of the Bioterrorism Act, i.e.,
contaminant prevention, detection and response and supply disruption
prevention, detection and response (section 402). Almost $20 million of
the request will be targeted to: 1) activities that will advance the
scientific and technical knowledge of microbial, chemical, and
radiological contaminants for which little or no research and
occurrence data are available; and 2) the identification of methods and
means by which terrorist could disrupt the supply of safe drinking
water by tampering, altering, or destroying systems' infrastructure.
Question 13. What funding is currently available for physical
security improvements at public water and wastewater facilities?
Response. Many of the types of infrastructure improvements a water
system would need to take to ensure security are eligible activities
under the Drinking Water State Revolving Fund (DWSRF). The types of
measures that could be funded include fencing, security cameras, secure
chemical and fuel storage, backflow prevention devices and covering
finished water storage reservoirs. Protection of drinking water sources
may also be funded through the DWSRF set-asides. The first step in
seeking assistance is to contact the State DWSRF representative.
EPA has developed a fact sheet that identifies specific security
measures that would be eligible through the DWSRF program. The fact
sheet is available on our website at http://www.epa.gov/safewater/
dwsrf.html.
Assistance to implement protection measures may also be available
through Water and Wastewater Loan/Grant program of the U.S. Department
of Agriculture's Rural Utilities Service. Water systems should contact
their State SRF or Rural Development representatives to learn more
about potential assistance.
CSO Long-Term Control Plan
Question 14. Does the EPA believe that performing a CSO Long-Term
Control Plan in a maximum of 15 years is reasonable and affordable? How
does the EPA justify such an inflexible schedule?
Response. The Wet Weather Quality Act of 2000, 33 U.S.C. Sec.
402(q), requires EPA and the States to regulate CSOs in conformance
with the EPA's 1994 Combined Sewer Overflow Control Policy (59 Fed.
Reg. 18688). The CSO Policy calls for implementation of LTCPs ``as soon
as practicable,'' and the NPDES authority should require ``compliance
dates on the fastest practicable schedule for those activities directly
related to meeting the requirements of the CWA.'' Decisions on
implementation schedules are made on a case-by-case basis, and depend
on such factors as the size of the community, the environmental impact
of the CSO discharges, and the financial capability of the community.
To guide decisions on LTCP scheduling, EPA published a document
entitled Combined Sewer Overflows: Guidance for Financial Capability
Assessment and Schedule Development (EPA 832-B-97-004, 1997). This
guidance defines criteria that can be used to assess whether a CSO
control program will pose a low, medium, or high financial burden on a
community. The guidance also suggests general schedules based on these
levels of burden. For communities facing a ``high burden'' the guidance
suggests that implementation schedules of up to 15 years may be
appropriate, while in ``unusually high burden'' situations an
implementation schedule of up to 20 years may be appropriate.
Water Infrastructure Gap
Question 15. Please illustrate exactly how your budget request
would close the $21 billion gap between current capital funding and
future capital needs.
Response. The Gap Analysis estimates that about $381 billion in
capital outlays will be required between 2000-2019. At current
investment levels, $259 billion o that amount be covered. Growth in
local revenues (user charges) of 3 percent per year in real terms,
provides $101 billion in additional spending capacity, leaving a $21
billion infrastructure gap.
By extending Federal capitalization of the CWSRF program through
2011 at $850 million per year, the President's proposal will
significantly increase the CWSRF program's capability to fund projects
in both the near term and in the long-run. Administration analyses
using historical information indicate that, by extending Federal
capitalization of the CWSRF program through 2011 at $850 million per
year, the President's proposal is projected to increase SRF loan
assistance by $21 billion in 20 years. By also utilizing other Federal,
State and local sources of funding and improved management practices,
we believe the projected infrastructure gap can be eliminated.
At the same time, EPA, States and systems will pursue approaches
for efficient, effective management of water and infrastructure assets
to ensure that this investment achieves sustainable systems. These same
innovative management practices can achieve significant cost savings in
the industry.
In addition to the Federal CWSRF program, there are a number of
other Federal and State funding sources that are expected to help fund
future infrastructure needs. These include USDA's Rural Utility Service
(RUS) loans, HUD's Community Development Block Grant (CDBG) program,
and non-Federal State clean water revolving loan fund programs.
Phase II Regulations and Local Communities
Question 16. In Ohio, there are 216 townships that must comply with
the Phase II Stormwater Management Regulations. These townships are
concerned about the mandate laid down by the Federal Government for
local governments to comply with the Clean Water Act. How does the
EPA's budget help offset the financial burden placed on local
communities who must comply with Phase II regulations?
Response. Although EPA's budget request does not specifically
address the Phase II Storm Water regulations, assistance can be
provided through the Clean Water State Revolving Fund program. Ohio
townships that must comply with the Phase II regulations can apply to
the Ohio EPA for financial assistance through the State Revolving Fund
loan program. The State of Ohio has also established Water Resource
Restoration Sponsor Program. This program offers communities very low
interest rate on loans for wastewater treatment plant improvements when
communities also sponsor projects that protect or restore water
resources.
Clean Water Act Compliance Costs
Question 17. What is the responsibility of the Federal Government
in helping local communities pay for the high costs of complying with
the Clean Water Act?
Response. The needs continue to change due to demographic
pressures, aging infrastructure and new treatment requirements.
Generally, it is the responsibility of local governments to pay for
drinking water supply and wastewater disposal. However, Federal
programs, including the Drinking Water SRF, established by the Safe
Drinking Water Act (SDWA) and the Clean Water SRF established by the
Clean Water Act (CWA) help local governments meet the costsof abiding
by water quality standards and cleaning up waterways.
The Federal Government and States work together through these
programs to encourage investment in water and wastewater infrastructure
that mitigates public health threats and creates sustainable water and
wastewater treatment systems. Through Federal, State and local
partnerships, EPA also supports affordable, cost-based rate structures
and encourages technology innovation, smart water use, and watershed-
based decisionmaking. EPA is pursuing innovative ideas such as
watershed-based trading and sustainable management systems. Together,
these efforts will meet water and wastewater infrastructure needs and,
more importantly, will help assure safe and clean water for the Nation.
Role of EPA's Science Advisor
Question 18. As I mentioned in my opening remarks, I am interested
in ensuring that the Agency relies on sound science in its
decisionmaking process. How will the additional funding for science in
fiscal year 2004 be used to improve research management and peer review
practices at EPA?
Response. The Agency has requested fiscal year 2004 resources to
support the EPA Science Advisor, a function that was created in May
2002. The Science Advisor is responsible for ensuring the availability
and use of the best science to support Agency policies and decisions,
as well as advising the EPA Administrator on science and technology
issues and their relationship to Agency policies, procedures, and
decisions. The Science Advisor provides leadership in ensuring that
sound science plays a prominent role in all regulatory decisions by
helping to ensure that regulations are interpreted and enforced in a
manner consistent with the science that informs them. This position is
intended to strengthen EPA's overall scientific performance. Another,
critical mechanism for ensuring sound science at EPA is the Agency's
policy for peer reviewing scientific and technical work products used
to inform Agency decisions. The Science Advisor, as chair of the
Science Policy Council, plays a leading role in implementing EPA's peer
review policy. In his March 5, 2003 testimony before the Committee on
Transportation and Infrastructure, EPA's Science Advisor, Paul Gilman,
stated, ``nearly 90 percent of our scientific and technical work
products receive internal or external peer review.'' EPA is currently
in the process of reviewing and addressing a recent finding by the
Inspector General that ``[t]he critical science supporting the
[agency's] rules was often not independently peer reviewed.
Consequently, the quality of some science remains unknown.'' (EPA OIG,
Science to Support Rulemaking, at ii, November 15, 2002.) In general,
the Agency believes that the IG's report is a reflection of the past,
rather than current, state of peer review at EPA today. Even rules
issued in the late 1990's would have used scientific products developed
before EPA's peer review guidance was completed in 1998. (For
additional steps the Agency has taken in the past with regard to its
peer review policies and practices, please see the Attachment to this
response.)
Specific responsibilities of the Science Advisor include:
Assisting in the implementation of the recommendations of
the Administrator's Regulatory Development Task Force Review as they
relate to the use of science.
Reviewing policies and procedures relating to the
operation of the Science Advisory Board (SAB) and making
recommendations for improvement.
Reviewing the interactions between the Regional
Laboratories and the Office of Research and Development and making
recommendations for improvements to these relationships as appropriate.
Reviewing the activities across the Agency relating to
the development and use of measurement techniques and making
recommendations for any improvements that may be identified.
Ensuring consistent cross-Agency application of strategic
planning for research and use of science.
Guiding the recently enhanced efforts of the Council on
Regulatory Environmental Modeling (CREM).
Chairing the Agency's Science Policy Council.
Question 19. While visiting the Environmental Protection Agency's
(EPA) newly created National Homeland Security Research Center in
Cincinnati, I had the pleasure of meeting Dr. Paul Gilman, who serves
as the Assistant Administrator of Research and Development and as EPA's
Science Advisor. I was impressed with his credentials as a scientist.
What will his role be in EPA's decision and regulatory making process?
Response. One of Dr. Gilman's key roles is to ensure that the
science used in EPA policies and decisions is of the highest quality
and is used in a manner appropriate to the policy or decision it
informs. Upon arriving at EPA, Administrator Whitman commissioned a
task force to identify ways to strengthen the scientific and economic
bases of EPA's policies and decisions. In response to the task force's
recommendations, the Administrator asked Dr. Gilman to increase the
role of EPA's scientists in the development of Agency policies and
regulations, and he has succeeded in doing so: the number of laboratory
engineers and scientists actively engaged at any one time in providing
scientific input into EPA's regulations has grown from about 150 in
2000 to over 300 in 2003. Dr. Gilman also played a key role in
designing the Agency's Information Quality Guidelines to ensure that
all scientific and technical information disseminated by EPA meets high
standards for quality.
Dr. Gilman is also EPA's leader in implementing the Agency's policy
on peer review of EPA's scientific and technical work products. Nearly
90 percent of EPA's scientific and technical work products receive
internal or external peer review (the remaining 10 percent were
products that were deemed, usually because of their repetitive or
routine nature, not to be candidates for peer review), and about 80
percent of those are submitted for external review. As he testified
before the House Committee on Transportation and Infrastructure,
Subcommittee on Water Resources and the Environment, on March 5 of this
year, EPA's challenge for the future is to continue the significant
progress it has achieved to date and, not being content with the status
quo, to look for ways to enhance the use of peer review as a tool for
ensuring that EPA's decisions are supported by a firm foundation of
scientific and technical information. In his March 5, 2003 testimony
before the Committee on Transportation and Infrastructure, EPA's
Science Advisor, Paul Gilman, stated, ``nearly 90 percent of our
scientific and technical work products receive internal or external
peer review.'' EPA is currently in the process of reviewing and
addressing a recent finding by the Inspector General that ``[t]he
critical science supporting the [agency's] rules was often not
independently peer reviewed. Consequently, the quality of some science
remains unknown.'' (EPA OIG, Science to Support Rulemaking, at ii,
November 15, 2002.) In general, the Agency believes that the IG's
report is a reflection of the past, rather than current, state of peer
review at EPA today. Even rules issued in the late 1990's would have
used scientific products developed before EPA's peer review guidance
was completed in 1998. (For additional steps the Agency has taken in
the past with regard to its peer review policies and practices, please
see the Attachment to this response.) As Science Advisor, Dr. Gilman
chairs EPA's Science Policy Council (SPC), a cross-agency committee of
senior managers charged with developing policies that guide Agency
decisionmakers in their use of scientific and technical information. In
recognition of the rapid advances in the field of genomics since
initial sequencing of the human genome, the SPC has developed an
interim policy on the use of genomics data as supporting information
for Agency assessment and regulatory purposes. The SPC has also
reconstituted the Council on Regulatory Environmental Modeling, which
among other things is developing guidance for developing and using
environmental models. Because sound decisions need to be based on sound
data, EPA is also establishing a Forum on Environmental Measurements to
promote consistency and consensus within the Agency on measurement
issues.
All of Dr. Gilman's efforts--enhancing the use of science in
decisionmaking, implementing EPA's peer review policy, and developing
agency-wide science policies--are crucial to making sure that the
policies and regulations issued by EPA are informed by scientific
information of the highest quality. Under Dr. Gilman's leadership and
with the Administrator's strong support for his leadership roles,
science has an increasingly prominent place in carrying out EPA's
mission of protecting public health and safeguarding the natural
environment.
attachment
From ``The State of Sound Science at the U.S. Environmental
Protection Agency'' (EPA/600/R-03/054, June 2003), (http://www.epa.gov/
ord/htm/soundscience-062603.pdf) pages 4-5:
``Consistent agency-wide application of peer review has been an EPA
priority for many years. Since issuing its peer review policy in 1993,
EPA has taken several major steps to support and strengthen the policy.
But proof of a policy's value lies in its implementation, and here also
EPA has been very active to ensure that its peer review policy is not
only understood across the Agency, but is applied rigorously across
EPA's program and regional offices.
One example is the external peer review of EPA's research
strategies and plans by the SAB and others. These reviews provide
critical, early input to the Agency at the planning stage as it
establishesits research priorities. A second example is the external
peer review of EPA's research efforts bythe National Research Council,
the EPA Office of Research and Development's Board of
ScientificCounselors and others. In March 2003, the Human Studies
Division of EPA's National Health andEnvironmental Effects Research
Laboratory (NHEERL) underwent a 3-day peer review of itsepidemiological
and clinical research. Each of NHEERL's nine divisions conducts such a
detailed review every 4 years, with a mid-cycle review after 2 years.
Also, all the grants awarded by the STAR program are selected through a
rigorous peer review process, whereby panels of independent researchers
review all the proposals for their scientific quality.
In response to the 2001 General Accounting Office (GAO) report
entitled EPA's Science Advisory Board Panels: Improved Policies and
Procedures Needed to Ensure Independence and Balance, the SAB has taken
several steps to address potential conflict-of-interest concerns. These
include internal procedural actions within EPA's SAB Staff Office, as
well as the new conflict-of-interest form developed by the SAB (and
approved by the Office of Government Ethics) that is required to be
submitted by all prospective panel members; this same, new conflict-of-
interest form is now being used by EPA's other review bodies that
utilize Special Government Employees, such as the SAP. These new
conflict-of-interest procedures complement existing procedures used for
all extramural peer reviews managed by contracts.
Internal conflict of interest--making sure that those EPA employees
who manage the peer review process are not inappropriately influenced
by Agency decisionmakers who will determine how the work product
informs the decision--is also an issue EPA has considered and
addressed. In its December 2000 2d edition of the Peer Review Handbook,
EPA included supplemental guidance to address this issue. The revised
handbook, among other things, clarifies the importance of strictly
separating the management of scientific work products from the
management of the peer review of those work products.''
National Homeland Security Research Center
Question 20. At the EPA's new National Homeland Security Research
Center in Cincinnati, I was briefed on EPA's research initiatives in
support of Homeland Security. Can you share with the committee what
your strategy is in support of Homeland Security, the role of research
and how you are coordinating with the Department of Homeland Security?
Response. The EPA National Homeland Security Research Center
(NHSRC) was formed in October 2002 to enable coordinated development of
information and technologies needed to protect buildings and public
water supplies from chemical and biological terrorist attacks. The
Center employs some of EPA's most experienced scientists and engineers
from across the United States and is headquartered at the EPA's Andrew
W. Breidenbach Environmental Research Center in Cincinnati.
The goal of the research is to rapidly develop tools, technologies
and guidance for use by water system authorities, building owners,
public officials and emergency responders to prepare for and respond to
potential attacks. The research program is divided into the following
areas:
technologies to rapidly detect and warn of chemical or
biological attacks;
methods to contain contaminants following attack;
development of cost-effective decontamination
technologies;
development of tools to enable rapid assessment of health
risk resulting from attacks; and
performance verification of commercially available
homeland security technologies.
A significant portion of this research is being conducted in direct
collaboration with other Federal agencies including the Department of
Homeland Security (DHS), Department of Defense, Department of Energy
and the Centers for Disease Control and Prevention. Six coordination
meetings have been held between DHS and the NHSRC since January,
including a full-day cross briefing with senior leadership of the
Science and Technology Directorate of DHS. Additional briefings are
scheduled to discuss progress on specific high interest research
studies. As a result of the significant interaction with DHS, we are
confident that EPA's research effort is appropriately focused as a
unique and key component of the overall national homeland security
strategy.
As part of our overall homeland security strategy, the
Administrator also created a permanent EPA Office of Homeland Security
(OHS) to lead and coordinate the development of homeland security
activities across EPA. The Office serves as the primary liaison on
matters related to homeland security between EPA and the Department of
Homeland Security, other Federal agencies, and external organizations;
and works with other EPA programs to develop enhanced systems for
managing classified information.
Water Systems Vulnerability Assessment and Emergency Response Plans
Question 21. Has the EPA estimated how much it would cost for water
systems to perform vulnerability assessments and emergency response
plans?
Response. An Information Collection Request for the approximately
9,000 community water systems subject to the requirements of the Public
Health Security and Bioterrorism Preparedness and Response Act of 2002.
When this information has been compiled, the results will be sent to
you.
Cost of Water Systems Physical Security Improvements
Question 22. Is there an estimate on how much is required to make
the physical security improvements necessary to protect our water
infrastructure facilities? Is the EPA's budget adequate to meet these
needs?
Response. Under the 1996 Amendments to the Safe Drinking Water Act,
the Agency is required to undertake an infrastructure needs survey and
submit such survey to the Congress every 4 years. This survey
encompasses all aspects of infrastructure and informs our calculations
for determining the State allocation for the Drinking Water State
Revolving Fund (DWSRF) in the annual budget process. The next survey,
which is due to the Congress in February 2005, does include a component
on security improvements.
EPA intends to work closely with the States and systems in using
the DWSRF for such purposes.
Water Issues
Question 23. What can the EPA do in regard to the following issues?
First, Wet Weather Water Quality Standards for receiving streams are
needed to realistically determine the impacts of CSO issues. Current
water quality standards were developed for dry weather application and
were not intended to address wet weather events. Second, reasonable and
sincere re-evaluations of ``use designation'' are not being conducted
by the EPA. Third, urban stream habitat is not adequately addressed in
water quality standards.
Response. EPA has developed guidance and is working with States
which have combined sewer overflow (CSO) communities to integrate the
development of affordable, well-designed and operated CSO control
programs, implementation of high-priority controls, and water quality
standards reviews. The CSO Control Policy published on April 11, 1994
(59 FR 18688) provides that ``development of the long-term plan should
be coordinated with the review and appropriate revision of water
quality standards and implementation procedures on CSO impacted
receiving waters to ensure that the long-term controls will be
sufficient to meet water quality standards.'' The Wet Weather Water
Quality Act required, among other things, that permits, orders and
decrees which address discharges from a CSO be consistent with the CSO
Control Policy and that EPA publish by July 31, 2001 ``Guidance:
Coordinating CSO Long-term Planning With Water Quality Standards
Reviews'' (EPA-833-R-01-002, July 31, 2001).
The Guidance outlines processes to assist CSO communities and
States integrate the development of the CSO control plans with the
review and the evaluation of water quality standards, including the
designated uses for the CSO receiving waters. The implementation of CSO
controls developed as part of a well designated and operated long term
control plan may lead to the determination that a water body has the
potential of supporting improved aquatic life. Under this circumstance,
States would upgrade their designated aquatic life use for the water
body. Alternatively, implementation of a well-designated and operated
CSO long term control program may not necessarily ensure the attainment
of water quality standards within the CSO receiving waters. Where
existing standards cannot be met, CSO communities, States and EPA can
use a process described in the Guidance to reach early agreement on the
data and analyses sufficient to support both the long term control plan
and the water quality standards review. Where available information
demonstrates that water quality standards revisions are appropriate,
EPA expects that States will make revisions to water quality standards
which maintain the highest attainable use while enabling communities to
implement a cost-effective control program that complies with permit
requirements providing to the attainment of water quality standards.
______
Responses of Administrator Christine Todd Whitman to Additional
Questions from Senator Jeffords
Water Infrastructure
Question 1. In your opening statement you said that ``core water
programs'' enjoyed a budget request increase of $55 million for a total
of $470 million. This characterization is not reflective of the $500
million drop in funding requests for the Clean Water SRF. Is the Clean
Water SRF a ``core water program''?
Response. States are currently struggling with budget pressures in
their water quality and drinking water programs and are facing
expanding workloads and challenges to their programs (e.g., permit
backlogs, TMDL court challenges, and petitions to withdraw State
program authorizations). In recognition of the impact of budget
pressures on implementation of core water programs and resulting
challenges States and tribes are facing, EPA is requesting a $55
million increase focused on water quality standards, water quality
monitoring and assessment, total maximum daily loads (TMDLs), national
pollutant discharge elimination system permits (NPDES), drinking water
implementation, and oceans and coastal protection. Most of this
increase ($32 million) would be provided to States and Tribes through
Clean Water Act Section 106 Grants and public water systems supervision
(PWSS) Grants. The remaining increase ($23 million) will help EPA
provide guidance and technical assistance to States and Tribes in each
of the core program areas.
In addition to the requested increase in the core water programs,
the Administration plans to provide an additional $4.4 billion to the
Clean Water SRF by extending funding through 2011. This increase in
commitment is expected to increase the long-term target revolving level
of the Clean Water SRF from $2 billion per year to $2.8 billion per
year, a 40 percent increase.
Question 2. What method does EPA use to determine affordability and
what is the basis for that method?
Response. EPA's national-level affordability criteria consist of
two major components: an expenditure baseline and an affordability
threshold. The expenditure baseline (derived from annual median
household water bills) is subtracted from the affordability threshold
(a share of median household income (MHI) that EPA believes to be a
reasonable upper limit for these water bills) to determine the
expenditure margin. The expenditure margin is the maximum increase in
household water bills that can be imposed by treatment and still be
considered affordable. EPA currently uses an affordability threshold of
2.5 percent of MHI. EPA compares projected compliance costs for the
median household within a particular small system size category to the
available expenditure margin to make the affordable technology
determinations and derives available expenditure margins separately for
each of the three specified small-system size categories ( i.e., 25-500
served, 501-3,300 served, and 3,301-10,000 served). Under the Safe
Drinking Water Act (SDWA), EPA does not make site-specific
affordability determinations for systems within a size category.
MHI was selected as the metric for the affordability criteria so
that EPA could base its evaluation given a ``typical'' set of
circumstances rather than a worst-case scenario. The value of 2.5
percent for this metric reflects a comparison of the cost of public
water supplies for households given other household expenditures and
risk-averting behavior. National expenditure estimates were derived to
illustrate the allocation of household income across a range of general
household expenditure levels. An initial range of 1.5 to 3 percent of
the median household income (MHI) for the affordability threshold was
based on comparative household expenditures on other utilities, such as
telephone services and fuel. The selection of 2.5 percent from this
range was based primarily upon the costs of risk-reduction activities.
Costs were derived for risk-reduction activities that could be
conducted at the household-level in lieu of treatment being performed
by the water utility. These risk-reduction activities included point-
of-use and point-of-entry treatment options and home delivery of
bottled water. The March 2002 Report to Congress on small system
arsenic implementation contains more details on the derivation and
basis of the national-level affordability criteria.
Question 3. The President requested $850 million for the Safe
Drinking Water State Revolving Loan Fund. Several other key drinking
water programs that provide assistance to small, rural communities were
cut in the President's Budget. I am aware that OMB was working on a
governmentwide study of the different programs that provide drinking
water system assistance to small, rural communities. To your knowledge,
has that review been completed? If so, what was the result? Is that
result reflected in the President's Budget?
Response. In June 2002, at OMB's request, EPA, along with the
Department of Agriculture's Rural Utilities Service (RUS), the
Department of the Interior's Bureau of Reclamation (BOR), and the
Department of Health and Human Service's Indian Health Service (IHS),
worked collectively and individually with OMB to develop and test the
applicability of ``common measures'' of the effectiveness of Federal
rural water programs.
A summary of the study results appears in the Department of the
Interior's portion of the fiscal year 2004 President's Budget. In the
President's Budget, OMB notes that the four agencies differ
significantly in terms of how they provide rural water assistance: The
BOR and IHS programs are primarily construction programs, whereas EPA
and RUS focus on infrastructure finance. OMB also notes significant
geographic and socio-economic differences in the four agencies'
respective service areas and service populations. Given OMB's overall
conclusion--that there is general overlap in the missions of the four
programs--the President's Budget also describes the Administration's
commitment to do additional analysis as the basis for streamlining
these programs over the next year.
Question 4. One concept that has seemed to garner general support
from stakeholders is the creation of a dedicated source of funding for
State SRFs. This concept, provided that it included a revenue source
that was agreeable to all parties involved, could have the potential to
help address our current water infrastructure funding gap. What is
EPA's position on a ``water pollution trust fund?''
Response. EPA has not taken a position on the creation of a ``trust
fund,'' supported by special, dedicated, Federal, State and/or local
fees, to finance water and wastewater infrastructure through the State
Revolving Fund (SRF) programs. Unfortunately, stakeholders may be
uninformed about what a ``trust fund'' means in the context of
dedicated Federal revenues. First of all, the assets of the fund would
belong to the Federal Government, and as trustee, the Federal
Government can make unilateral changes to the terms and conditions of
the ``trust.'' Second, a new fund for water pollution may run into
budget scoring difficulties. For these reasons, we believe that
developing consensus on an effective dedicated funding source would be
difficult.
Question 5. Is an integrated priority list including both point and
nonpoint sources of pollution a viable tool to help States direct Clean
Water SRF funds to those projects that will have the greatest impact on
water quality?
Response. Integrated planning and priority systems are more
effective planning mechanisms than the simple ranking of proposed
projects that the Clean Water Act requires. Integrated planning and
priority setting systems help States use their water quality data to
inform SRF project rankings and guide funding decisions. These systems
help States rank point, nonpoint source and, where applicable, estuary
projects, and they help to ensure that funding goes to each State's
highest environmental priority projects. EPA supports State use of
CWSRF funds for high priority water quality projects, and we provide
guidance and encouragement to States that voluntarily develop and use
integrated planning and priority setting systems.
Question 6. I have read and heard widespread reports of a pending
recommendation from the National Drinking Water Advisory Council
(NDWAC) recommending an income-assistance program to address
affordability issues related to rising water rates. When will this
report be released?
Response. In 2002, the National Drinking Water Advisory Council
(NDWAC) formed a smaller work group to respond to the charge questions
on the national-level affordability criteria. This 18 member work group
included representatives of small and large water utilities, small
system advocacy and technical assistance organizations, academic
experts and consultants, States and local governments, tribes, and
environmental and consumer groups. Work group members held five
meetings between September 2002 and January 2003, and recently
delivered a report of their affordability recommendations to the full
NDWAC.
In May 2003 the full committee of the NDWAC discussed the work
group's recommendations on affordability, evaluated the final report,
and considered changes. EPA anticipates receiving the final
affordability report and releasing it to the public by July 2003.
Water Quality
Question 7. One of the most important components of any water
quality program is water quality monitoring. What is EPA doing to
improve the quality and quantity of water quality measurements?
Response. EPA is working to enhance the credibility of water
quality monitoring data and information so that it drives better
management decisions at all levels--nationwide, regional, State and
tribal, and watershed. We want to provide to the public better
information on how clean our waters are and whether the money we are
spending to improve water quality is being used effectively.
The Agency is building on previous efforts, including the work of
the Interagency Task Force on Monitoring; collaborating with existing
monitoring efforts such as those of U.S. Geological Survey, the Fish
and Wildlife Service, and the National Oceanic and Atmospheric
Administration; and, of course, working with State agencies in these
efforts. EPA is taking into account the recommendations on water
quality monitoring made in numerous program reviews done by the General
Accounting Office, Inspector General, and National Research Council,
etc.
Activities to improve water quality monitoring are focused in four
main areas: improving monitoring designs for all geographic scales and
for different water body types; improving State and tribal monitoring
programs, maximizing use of all data and information; expanding
accessibility and use of the data; and improving communications about
the value and results of monitoring data.
The fiscal year 2003 appropriations for EPA contained $4 million
for grants to interested States to establish a long-term ambient
monitoring and assessment framework at relevant geographic scales.
These funds will help EPA and the States to design a monitoring network
that will provide credible data and information to answer the
questions: how clean is our water, and is our being money being spent
in the most effective manner.
SWANCC Decision
Question 8. How much in funding has EPA allocated for the
rulemaking related to the definition of waters of the United States?
Response. Agency program offices have only recently received their
budget figures and we are still making intra-agency allocation of funds
for particular projects. Additionally, the comment period for the ANPRM
did not close until April 16, and we are just now getting underway with
the process of summarizing and analyzing the comments. That process
will help inform us as to what issues may need to be addressed through
proposed rulemaking, which in turn will affect how much funding would
be needed.
Question 9. In the Advanced Notice of Proposed Rulemaking on the
Clean Water Act Regulatory Definition of ``Waters of the United States,
EPA and the Corps explicitly ask for comment in section five ``as to
whether any other revisions are needed to the existing regulations on
which waters are jurisdictional under the CWA.'' The presence of this
request for information clearly expands the scope of your Advanced
Notice of Proposed Rulemaking to include all waters under the CWA. The
reason stated for this additional solicitation was that is was
``boilerplate'' language included in ANPRMs and that the Agency would
receive comments outside the scope of the solicitation, therefore
justifying the expanded request. In order to verify that this expanded
solicitation is standard for your agency's ANPRMs, could you please
provide copies of EPA-issued ANPRMs from the last 5 years with examples
of this language noted in each.
Response. ANPRMs are an extra step, not required by the
Administrative Procedure Act, to identify key issues and obtain early
public input. They often cast a broad net to ensure all relevant issues
are identified early on for agency consideration. As was the case with
the ``Waters of the United States'' notice, ANPRMs are frequently
drafted so as to solicit public input not just on some specifically
identified core issues, but also explicitly invite comments more
generally on any other related issues the public wishes to call to our
attention. Set out below are some examples from EPA's most recent
Regulatory Agenda:
MTBE ANPRM--65 FR 16093 (3/24/00), Pg 16096
``The remainder of this ANPRM outlines the major elements of the
problem and its potential solution. EPA invites comment from all
interested parties on these and any other matters relevant to
addressing the risk of MTBE to the nation's drinking water resources.''
Pg 16106
``VI. Specific Requests for Comment, Data, and Information
Interested persons are invited to comment on any issue raised in
this ANPRM. The Agency is particularly interested in receiving
additional information and/or comments addressing the following
issues:''
Mercury bearing waste ANPRM--64 FR 28949 (5/28/99), Pg
28962
``D. Request for Comment
The Agency seeks comments on the viability and parameters of these
alternative technologies and any other technologies not specifically
mentioned in this ANPRM.''
Water Quality Standards ANPRM--63 FR 36741 (7/7/98), Pg
36742
``This ANPRM identifies specific issues on which EPA solicits
comment. In addition to the specific issues on which EPA solicits
comments, EPA is interested in comments on any other aspects of the
program.'' Pg 36748
``While the following discussion describes specific areas and
issues for public review, the public is welcome to comment on any
aspect of the water quality standards program.''
Question 10. The joint EPA and Corps guidance regarding the Supreme
Court's decision in the SWANCC case has raised concerns. The guidance
states that where the sole basis for asserting CWA jurisdiction is the
actual or potential use of the waters as habitat for migratory birds
that cross State lines in their migration, the EPA and the Corps are
precluded from asserting CWA jurisdiction. However, the guidance states
that neither agency will assert jurisdiction over isolated wetlands
that are both intrastate and non-navigable where the sole basis
available for asserting CWA jurisdiction rests on any of the factors
listed in the ``Migratory Bird Rule''.
The ``Migratory Bird Rule'' contains four factors to consider when
asserting jurisdiction over intrastate waters:
``a. Which are or would be used as habitat by birds protected by
Migratory Bird Treaties; or
``b. Which are or would be used as habitat by other migratory birds
which cross State lines; or
``c. Which are or would be used as habitat for endangered species;
or
``d. Used to irrigate crops sold in interstate commerce.''
Could you please provide the Agencies' rationale for taking the
entire ``Migratory Bird Rule'' out of the Agencies' jurisdictions and
why the ANPRM did not solicit comments on the scope of the ``Migratory
Bird Rule''.
Response. At the outset, we wish to note that the so-called
``Migratory Bird Rule'' is actually preamble language setting out some
illustrative examples of interstate commerce factors rather than being
an actual rule itself. See, 51 Fed. Reg. 41217 (Nov. 13, 1986); 53 Fed.
Reg. 20765 (June 6, 1988). The January 2003 guidance provides that
neither agency will assert Clean Water Act jurisdiction over isolated
intrastate nonnavigable waters solely on the basis of the factors
listed in that preamble language. The January 2003 guidance sets out
the rationale for this. It first discusses at some length the logic and
reasoning of SWANCC and then explains: ``SWANCC calls into question
whether CWA jurisdiction could now be predicated on the other factors
of the Migratory Bird Rule.'' 68 Fed.Reg. 1991, 1995-1996 (January 15,
2003). We also wish to note the ANPRM encompasses comment on the
relevance of factors such as those listed in the ``Migratory Bird
Rule.'' The very first question posed by the ANPRM asks not just about
the jurisdictional factors contained in the actual ``(a)(3)''
regulations, but also specifically asks whether ``any other factors
provide a basis for determining CWA jurisdiction over isolated,
intrastate, non-navigable waters.'' The factors in the ``Migratory Bird
Rule'' are embraced by that language; in addition, as your earlier
question indicates, the agencies also sought comment ore generally on
other relevant jurisdictional issues, which again would include
``Migratory Bird Rule'' factors.
Question 11. In addition, the guidance directs field staff to seek
formal project-specific Headquarters approval prior to asserting
jurisdiction over isolated waters that are both intrastate and non-
navigable, including permitting and enforcement actions. This direction
is troubling because; (1) it gives complete discretion to the field
staff to decide whether or not to regulate any isolated, intrastate
non-navigable water; and (2) creates an additional step that could add
unnecessary delay in permitting and enforcement.
Could you please provide information on the number of permits that
will be effected by this guidance, an estimate of the number of future
permits that will be effected during the rulemaking process, and the
estimated time it will take for a permitting or enforcement action
subject to the new Headquarters approval, to go through the process,
and a description of the procedures that field staff will use when
seeking Headquarters approval?
Response. It is not feasible at this point to accurately predict
the number of permits affected by the guidance provisions for project-
specific Headquarters approval. While no formal procedures have been
separately issued, the field may raise issues consistent with existing
practices for jurisdictional matters. We believe the number will be
low, however, for at least two reasons. First, the process involves
only those waters that are intrastate, and isolated, and non-navigable.
Actions on waters that do not meet all three of these criteria do not
require Headquarters approval. Second, based on our experience during
the 2 years between the SWANCC decision and issuance of the guidance,
we do not anticipate any future volume to be such that Headquarters
review and approval would result in undue delays.
We also note that this guidance provision does not give discretion
to field staff to decide whether or not to regulate any isolated,
intrastate non-navigable water. Rather, it is intended to ensure that
field staff make such decisions in a consistent manner across
districts, as well as to provide valuable information to headquarters
about real world situations involving such waters, whose jurisdictional
status has been called into question by the Court's decision.
Question 12. In your opening statement, you stated that ``tens of
thousands of acres'' of wetlands could potentially fall outside the
protection of the Clean Water Act. EPA has not to date formally
produced any information quantifying how many acres of wetlands would
fall outside of Clean Water Act jurisdiction as a result of the SWANCC
decision. What is EPA's estimate on the number of acres that will fall
out of the Clean Water Act's jurisdiction and what information did EPA
use to calculate this number?
Response. At present, there is no definitive national estimate
quantifying wetland acreage potentially no longer jurisdictional under
the CWA in light of SWANCC. One of the purposes of the ANPRM was to
help us in our estimations by soliciting information, data, or studies
from the public, scientific community, and Federal and State agencies
on the extent of potential SWANCC-related impacts to aquatic resources.
One existing government estimate of geographically isolated wetlands
may be found in the U.S. Fish and Wildlife Report titled ``Isolated
Wetlands: A Preliminary Assessment of Their Status and Characteristics
in Selected Areas of the United States.'' That study, in essence,
identifies for the selected sites those wetlands which appear to be
geographically isolated. However, not all of these would necessarily be
non-jurisdictional under SWANCC, nor are they necessarily subject to
conversion even if non-jurisdictional. One way of looking at the issue
using presently available information is to consider Corps of Engineers
data for the section 404 permitting program. That data indicates that
before SWANCC, wetlands losses prior to mitigation under individual and
general permits were in the range of 12,000 to 39,000 acres per year
for fiscal year 1998 through fiscal year 2000. (See e.g., U.S. Army
Corps of Engineers July 2001 Draft nationwide Permit Programmatic
Environmental Impact Statement, pg. 4-10, Figure 4.2-1). Only some
percentage of those permitted losses would now be non-jurisdictional in
light of SWANCC. We are working to develop more refined estimates and
anticipate the information gained from public responses to the ANPRM
will help us in these efforts.
Stormwater Phase II
Question 13. On December 30, 2002, more than 3 years after the
final storm water phase II rule was published, the EPA proposed the
extension of the deadline for compliance with this regulation by the
oil and gas industry. Your proposal cites new information from DOE as
the impetus for this new review. The Department of Energy has collected
this data since 1978. Please explain your characterization of this
information as new.
Response. When EPA developed the Economic Analysis for the Phase II
rule, the information obtained for the analysis showed that most sites
were either over five acres, and therefore already regulated, or less
than one acre, and therefore would not be covered by the construction
permitting requirements of the rule. As the time for permit
applications for construction disturbing one to five acres drew nearer,
we started receiving letters from associations representing the
independent drillers. We also met with members of these groups. They
were unanimous in telling us that most of their drill sites disturb
between one and five acres. EPA talked to several States and looked for
information to verify what we were hearing from the industry. The
States with oil and gas activity and the Energy Information
Administration (EIA) confirmed what we were being told. We referred to
this information as new because it was new to EPA.
Question 14. Your proposal cites 30,000 oil and gas starts per year
as the new information requiring an impact evaluation. Why did you
choose to use an average of the number of oil and gas starts in 2000
through 2002 as the number of oil and gas starts per year?
Response. We actually took several different averages. Depending on
which years are averaged, the number of drill sites varies. Averaging
all the years of data available results in an average of over 40,000
sites per year. Our decision did not depend on the specific number of
30,000, but rather on the fact that the number of sites was
significantly more than what we had assumed during development of the
original Phase II rule (12/8/1999). EPA simply used 30,000 as a number
that was illustrative of the potential impact. This was also the number
of sites mentioned by industry and States as the expected number of new
sites for the next few years.
Question 15. Has EPA reviewed the EIA data collection and analysis
procedures to determine if the data you have chosen to use to justify
your extension of the applicability of the storm water phase II
regulations for the oil and gas industry is valid? If so, what did you
conclude? If not, why not?
Response. No, we did not believe this was necessary. As noted
above, the figures generated by the EIA data collection and analysis
were used to demonstrate the potential impact. Since the quality of the
data was commensurate with our use, the data was deemed appropriate.
Question 16. This data also includes both onshore and offshore
wells. Please explain why you have included offshore wells as part of
justification for changes to a regulation dealing with storm water
runoff?
Response. We were not originally aware that off-shore sites were
included, since the EIA data does not make this distinction. When we
checked on this issue, we found that offshore wells are included, but
they are a very small part of the total. In the past decade, 400 to 900
wells per year were completed in Federal offshore waters. The Minerals
Management Services (MMS) of the U. S. Department of Interior is
responsible for leasing development blocks and managing petroleum
royalty revenues derived from oil & gas production on the U.S. offshore
waters. The MMS reports that a total of 904 oil & gas development wells
were drilled on Federal offshore leases in 2000. Based upon historical
data, 95 percent of all oil and gas wells drilled each year in the
United States are located onshore.
Question 17. In its Information Quality Guidelines, EPA states that
``There are many tools that the Agency uses such as the Quality System,
review by senior management, peer review process, communications
product review process, the web guide, and the error correction
process.'' EPA also indicates that it seeks input from experts and the
general public, and that it consults with groups such as the Science
Advisory Board and the Science Advisory Panel. Which of these tools
were used in preparing the December 20, 2002 proposed regulation
regarding the extension of the deadline for the phase II storm water
program for the oil and gas industry?
Response. As with all our rules, the December 20, 2002 proposed
regulation was available for public comment and we did not receive any
comments questioning the 30,000 number. As mentioned above, we sought
input from the experts, the States that regulate the oil and gas
industry, various groups that represent the industry, and the branch of
the US government that collects data about the industry. The rule was
also reviewed by senior management. EPA does not believe that
consulting with the Science Advisory Board or the Science Advisory
Panel would have been appropriate for this type of regulation.
Question 18. The EPA Information Quality Guidelines contain a
section entitled, ``Does EPA Ensure and Maximize the Quality of
Information from External Sources?'' It indicates that since 1998, the
use of environmental data collected by others or for other purposes has
been within the scope of the Agency's Quality System. Please explain
how the data used by EPA to justify the December 20, 2002 proposed
regulation regarding storm water phase II met the standards of this
system before being published in the Federal Register.
Response. The information used in this rulemaking was a count of an
expected number of oil and gas starts. As explained above, EPA made an
assumption in 1999 that was later called into question by States and
the oil and gas industry. This new information was validated by data
from DOE and was not challenged during the rule's public comment
period. Consistent with EPA's Quality system, the quality of the data
was deemed appropriate for its use in this rulemaking.
Question 19. On November 14, 2002 I sent you a letter with 30 of my
colleagues urging a quick resolution to the question of whether or not
communities covered by the storm water phase II regulation can continue
to use Clean Water Act section 319 funds. The 107th Congress passed
legislation allowing these communities to use section 319 funds for
fiscal year 2003. Should this change be made permanent?
Response. We are still reviewing this issue and have no
recommendation at this time.
Question 20. On January 23, 2003, you sent us a letter indicating
that you are continuing your review of this issue. How long has this
review been underway?
No response.
Question 21. The storm water phase II regulations went into effect
on March 10, 2003. They have been in place since 1999. Do you plan to
complete your review before the regulations go into effect? Do you
anticipate completing it before the end of fiscal year 2004?
Response. We anticipate completing our review in the near future.
Water Quality Trading Policy
Question 22. This past January, EPA released its final Water
Quality Trading Policy Statement outlining how trading might occur. The
Policy states that, ``EPA believes that the Clean Water Act provides
authority for EPA, States, and tribes to develop a variety of
activities to control pollution, including trading programs'' without
articulating where the Act authorizes such activity. In a letter from
Deputy Assistant Administrator Ben Grumbles to Congressman Peter
Defazio on the question of legal analysis done to ensure the legality
of water trading as it relates to authorized activities under the Clean
Water Act, the EPA states that, ``the Office of General Counsel . . .
has not prepared any formal opinion or written analysis regarding the
legality of water quality trading.'' No provision of the Clean Water
Act mentions water quality trading as a means to comply with NPDES
permits, water quality standards, or TMDLs. In issuing the policy EPA's
Office of General Counsel would have analyzed the policy as it relates
to the Clean Water Act before signing the policy. I must assume that
OGC had some rationale for approving the policy. What specific
provisions of the Clean Water Act and its regulations specifically
provide EPA with the authority to develop trading programs to meet the
requirements of the Clean Water Act? If there is no explicit authority
to do so, what authority did EPA use to assert that EPA is authorized
to use water quality trading under the Clean Water Act (1) in
unimpaired waters, (2) in impaired waters prior to the development of a
TMDL, and (3) under an approved TMDL?
Response. The Clean Water Act, 33 U.S.C. Sec. 1251, et seq. (CWA)
and its implementing regulations establish a legal basis and authority
for trading to achieve and maintain water quality standards. EPA's
Water Quality Trading Policy provides States with guidance on how
trading may occur consistent with the CWA and its implementing
regulations. EPA notes that the policy does not contemplate that EPA
will develop a trading program.
To understand the legal basis for trading in unimpaired waters, in
impaired waters prior to the development of a total maximum daily loads
(TMDL), and under an approved TMDL, it is necessary to understand how
water quality standards establish the foundation for water quality
trading to occur. Section 303(c) requires States and tribes to adopt
water quality standards for waters within their boundaries. The level
of water quality that must be attained and protected is established by
these standards. Water quality standards are composed of three parts:
(1) designated uses, e.g., protection of fish and wildlife, recreation
and drinking water supply (40 C.F.R. 131.10); (2) numeric or narrative
water quality criteria to protect those uses (40 C.F.R. 131.11); and
(3) an antidegradation policy (40 C.F.R. 131.12). When a water quality
standard is approved or promulgated by EPA it becomes the basis for
establishing TMDLs and water quality-based effluent limitations in
National Pollutant Discharge Elimination (NPDES) permits (40 C.F.R.
131.21).
The second critical concept and foundation for water quality
trading is the requirement under the CWA that NPDES permits contain
water quality-based effluent limits as stringent as necessary to meet
water quality standards (CWA Section 301(b)(1)(C)). These water
quality-based effluent limitations provide the baselines for point
sources to trade. A baseline is the level below which a reduction is
made to create a pollutant reduction credit. The Water Quality Trading
Policy (Section III.D.) encourages sources to create pollutant
reduction credits by making reductions greater than required to meet a
regulatory requirement. A point source may do so by reducing its
discharge below the level necessary to comply with a water quality-
based effluent limit based on a TMDL or other analysis. The policy
encourages reductions greater than would otherwise be achieved.
All water quality-based effluent limitations, including alternate
or variable limits that may apply where trading occurs, are subject to
CWA section 301(b)(1)(C). EPA has promulgated regulations specifying
when such water quality-based effluent limitations are necessary and
how such limitations are to be derived. Among other things, EPA's
regulations require the permitting authority to ensure that:
(A) The level of water quality to be achieved by limits on point
sources established under this paragraph is derived from, and
complies with all applicable water quality standards; and
(B) Effluent limitations developed to protect a narrative water
quality criterion, a numeric water quality criterion, or both, are
consistent with the assumptions and requirements of any available
wasteload allocation for the discharge prepared by the State and
approved by EPA pursuant to 40 CFR 130.7. (40 C.F.R. Sec.
122.44(d)(1)(vii) (emphasis supplied)).
If a water quality-based effluent limitation is consistent with the
requirements of CWA section 301(b)(1)(C) and EPA's regulations at 40
C.F.R. Sec. 122.44(d)(1), then the limitation is lawful. Nothing in
the CWA prohibits the issuance of a water quality-based effluent
limitation that meets the requirements of CWA section 301(b)(1)(C) and
EPA's implementing regulations simply because the limitation is based
on a trade. By the same token, if a trade-based effluent limitation
does not comply with the requirements of CWA section 301(b)(1)(C) and
40 C.F.R. Sec. 122.44(d)(1), then it would be unlawful and it cannot
be contained in an NPDES permit. See Section 402(a)(1). Nothing in the
Trading Policy changes this.
Under EPA's Water Quality Trading Policy, water quality standards
established to protect designated uses are the baseline for generating
pollution reduction credits. (See Section III.D). EPA's Water Quality
Trading Policy does not support trading that would cause an impairment
of designated uses, adversely affect a drinking water supply or exceed
a cap established by a TMDL (Section III. F.5.). The policy encourages
sources to create a pollution reduction credit by making reductions
greater than those required to meet water quality-based effluent
limitations. These ``surplus'' reductions could then form the basis of
a trade. For example, where a TMDL has been established the point
source effluent limitation based on the waste load allocation, and
nonpoint source load allocation, would establish the baselines for
generating a pollution reduction credit. In order to generate a credit,
a source would not only need to reduce loadings to the allocation set
by the TMDL (or resulting effluent limitation) but must surpass that
level before a tradable credit could be created. A source buying a
credit would then be able to increase its discharge only in the amount
of the ``surplus'' generated by the other source. The result would be
that, at a minimum, the post-trade loadings from the two sources would
be equal to or, depending on the cap and trading program design, could
be less than the total loadings that would have been discharged by the
two sources in the absence of a trade. It is important to emphasize
that a use of credits that would result in any impairment of a
designated use would not assure the attainment of water quality
standards and, therefore, would not be authorized under CWA Section
303(d)(4)(A) even if the cumulative load from the trading partners is
equal to or less than it would have been without the trade.
Trading In Unimpaired Waters. For waters where the level of water
quality equals or exceeds the level necessary to protect designated
uses, a water quality-based effluent limitation can be developed to
reflect the purchase of a credit only if such revision is consistent
with the applicable antidegradation policy (CWA Section 303(d)(4)(B)).
The Water Quality Trading Policy supports trading for the purposes
of maintaining levels of water quality higher than necessary to protect
and support designated uses consistent with Federal antidegradation
policy (Section III.E.1.) For example, subject to a State's
antidegradation policy, trading could potentially be used to offset new
or increased discharges through actual pollutant reductions obtained
from other sources--so that no lowering of water quality occurs.
Trading In Impaired Waters. Where water quality standards have not
been attained, water quality-based effluent limitations based on a
waste load allocation contained in a TMDL or other wasteload allocation
may be revised if the cumulative effect of all such revised limitations
will assure attainment of water quality standards (CWA Section
303(d)(4)(A)). This provision assumes that the limitations being
revised to reflect a trade were written in compliance with the
requirements of CWA Section 301(b)(1)(C). As such, the pre-trade
effluent limitations would be calculated at levels as stringent as
necessary to achieve water quality standards. It follows, therefore,
that revisions to those original limitations also will assure the
attainment of water quality standards. Once again, however, it is
important to emphasize that a use of credits that would result in the
impairment of a designated use would not assure the attainment of water
quality standards and, therefore, would not be authorized under CWA
Section 303(d)(4)(A) even if the cumulative load from the trading
partners is equal to or less than it would have been without the trade.
The policy (Section III.E.2.) supports pre-TMDL trading in impaired
waters to achieve progress toward or the attainment of water quality
standards. For example, EPA supports individual trades that achieve a
net reduction of the pollutant traded or watershed-scale trading
programs that reduce loadings to a specified cap supported by baseline
information on pollutant sources and loadings.
Trading Where There is a TMDL. CWA Section 303(d)(4)(A)
specifically contemplates the adjustment of water quality-based
effluent limitations based on a TMDL even where the adjustment might
make one set of limitations less stringent than it otherwise might have
been, see CWA 402(o)(1), as long as the cumulative effect of the
revisions assures the attainment of water quality standards. For
impaired waters for which a TMDL has been approved or established by
EPA, a cap on the pollutant causing impairment is included in the TMDL,
which under CWA Section 303(d)(1)(C), must be established at a level
necessary to meet water quality standards. The trading policy (Section
III.E.3.) supports trading that is consistent with the assumptions and
requirements upon which the TMDL is established. (That test is derived
from EPA's regulations at 40 CFR 122.44(d)(1)(vii)(B)). Under those
circumstances EPA expects that the cumulative effect of the revised
water quality-based effluent limitations will continue to assure the
attainment of water quality standards. The policy does not support any
trading activity that would delay implementation of a TMDL, that would
cause the combined point source and nonpoint source loadings to exceed
the cap included in the TMDL, or that would cause an exceedance of
water quality standards (e.g., impairing designated uses).
Question 23. The Water Trading Policy also states that EPA, ``does
not currently support trading of pollutants considered by EPA to be
persistent bio-accumulative toxics (PBTs)''. However, because EPA chose
to issue this document as a policy statement rather than a regulation,
it does not have any legal enforceability. Isn't it true, then, that
EPA could not prevent a watershed from initiating a trading program of
PBTs or other toxics such as mercury even though the policy states that
EPA does not support such programs?
Response. The CWA and its implementing regulations establish a
legal basis for establishing water quality standards, issuing NPDES
permits and developing and implementing TMDLs that would form the
framework for water quality trading. Therefore, it is possible that
trading of PBTs or other toxics may occur but only if the trade is
consistent with all applicable provisions of the CWA and Federal
regulations.
Question 24. Late this past year, EPA staff informed my staff that
the then forthcoming water quality trading policy would include limits
on the portion of pollutant load reductions a permit holder could meet
through trading in order to minimize hotspots. In addition, the
proposed water quality trading policy statement included a provision
that explicitly addressed the risk of pollution hotspots stating, ``Any
use of pollutant reduction credits or allowances that would cause a
localized impairment of existing or designated uses at the point of
use, or that would exceed an in-stream target established under a TMDL
is not acceptable.''
However, this policy includes no mention of trade limitations on
individual permit or any other conditions to mitigate the risk of
localized impairments of water quality. An e-mail from EPA staff to my
staff states that the deletion of those provisions was not intentional
and must therefore have been an unintended by-product of the extensive
editing done between the proposed and final policies. If the deletion
of the phrase was not intentional, will EPA put back into the policy
conditions that would prevent the development of a trading programs
that cause localized impairments of water designated uses and water
quality standards?
Response. The provision ``Any use of pollutant reduction credits or
allowances that would cause a localized impairment of existing or
designated uses at the point of use, or that would exceed an in-stream
target established under a TMDL is not acceptable'' was revised in
response to comments received during the public comment period. Several
comments pointed to the fact that the term ``localized impairment'' was
not defined in either the proposed policy or EPA's regulations and
therefore was unclear. To address this and other comments, a number of
changes were made throughout the policy. A decision was made not to
retain or introduce undefined terms. This led to deleting the words
``localized impairment'' and ``in-stream target.'' A number of other
edits were made to emphasize the need for consistency with water
quality standards. Other edits included writing a specific section on
protecting designated uses (Section III.F.5.) and adding language on
mixing zones (See Section III.C.). In any case, the policy's repeated
emphasis on the need to protect water quality standards is intended to
indicate that the policy does not support any trading that would cause
localized impairment.
EPA's trading policy contains numerous provisions emphasizing that
trading should maintain water quality standards (including designated/
existing uses) throughout the trading area. The clear implication of
this is that trading activity must avoid locally high pollutant
concentrations that would cause an adverse impact. Although the phrase
``adverse localized impacts'' does not appear, the intent of the policy
is clear that trading may not cause high localized concentrations of
pollutants that would exceed standards. The relevant provisions are
given below with emphasis provided in bold. In addition to these
numerous references in the trading policy, EPA's' implementing guidance
for watershed-based permits and TMDLs will stress that re-allocations
must not create locally high pollutant concentrations.
p. 4 Establishing defined trading areas that coincide
with a watershed or TMDL boundary results in trades that affect the
same water body or stream segment and helps ensure that water quality
standards are maintained or achieved throughout the trading area and
contiguous waters.
p. 4 EPA believes that such trades may pose a higher
level of risk and should receive a higher level of scrutiny to ensure
that they are consistent with water quality standards.
p. 4 Where State or tribal water quality standards allow
for mixing zones, EPA does not support any trading activity that would
exceed an acute aquatic life criteria within a mixing zone or a chronic
aquatic life or human health criteria at the edge of a mixing zone
using design flows specified in the water quality standards.
p. 7 Protecting Designated Uses. EPA does not support any
use of credits or trading activity that would cause an impairment of
existing or designated uses, adversely affect water quality at an
intake for drinking water supply or that would exceed a cap established
under a TMDL.
p. 7 Public Notice, Comment and Opportunity For Hearing.
Notice, comment and opportunity for hearing must be provided for all
NPDES permits (40 CFR 124). NPDES permits and fact sheets should
describe how baselines and conditions or limits for trading have been
established and how they are consistent with water quality standards.
p. 7-8 Antidegradation. Trading should be consistent with
applicable water quality standards, including a State's and tribe's
antidegradation policy established to maintain and protect existing
instream water uses and the level of water quality necessary to support
them, as well as high quality waters and outstanding national resource
waters.
p. 8 EPA does not believe that trades and trading
programs will result in ``lower water quality'' as that term is used in
40 CFR 131.12(a)(2), or that antidegradation review would be required
under EPA's regulations when the trades or trading programs achieve a
no net increase of the pollutant traded and do not result in any
impairment of designated uses.
p. 11 Environmental evaluations should include ambient
monitoring to ensure impairments of designated uses (including existing
uses) do not occur and to document water quality conditions.
p. 11 The results of program evaluations should be made
available to the public. An opportunity for comment should also be
provided on changes to the program as necessary to ensure that water
quality objectives and economic efficiencies are achieved, and that
trading does not result in an impairment of designated uses (including
existing uses).
Question 25. The Policy states that ``EPA does not support any
trading activity that would cause a toxic effect, exceed a human health
criterion or cause an impairment of water quality . . . [and that] EPA
does not support trading of persistent bio-accumulative toxic
pollutants at this time.'' Does EPA plan to support trading of PBTs in
the future? If so, what is the timeline for the development of that
policy? Does EPA plan to initiate pilot programs or any other program
to pursue trading programs for persistent bio-accumulative toxics? If
so, what are they?
Response. At this time EPA has no plans to develop a policy to
support trading of PBTs nor does EPA plan to initiate any pilot
programs to pursue trading of PBTs. The only PBT trading pilot we are
aware of is a project to consider whether trading could be used to
offset a discharge of mercury from the Sacramento Regional Wastewater
Treatment Plant (SRWTP). The plant's NPDES permit, issued by the State
of California, requires the plant to identify possible sources of
mercury offsets if the plant discharges more than 5.1 pounds per year
of mercury. The pilot project was funded by EPA in 2002 and will
consider possible approaches to and sources of mercury offsets that
could potentially fulfill the requirements of the NPDES permit.
Question 26. The Policy states that EPA, ``would support trades
that involve pollutants other than nutrients and sediments on a case-
by-case basis.'' What will be the EPA's process for evaluating these
cases? Will these examinations take into account localized
concentrations of pollutants as a result of pollutant trading? Will
they examine the effect of trading toxic pollutants on the public and
wildlife? Does EPA have requests pending to approve a trading program
for substances other than nutrients or sediments? If so, would you
identify them? Does EPA anticipate receiving requests for approval for
a trading program for substances other than nutrients and sediments in
the near future? If so, can you identify any specific requests that
will come?
Response. The CWA and its implementing regulations provide the
legal basis for evaluating any potential trade. These evaluations will,
among other things, consider whether trading would result in any
impairment to designated uses (e.g., impacts on aquatic life or people)
or localized violations of water quality standards. In terms of process
EPA expects that, as has been the case with virtually all trading
programs, EPA regional offices will be consulted in the development of
future trading programs. In addition, EPA will continue to exercise
review and oversight authorities via NPDES permit oversight and TMDL
approvals.
EPA anticipates that the greatest opportunities for trading will
occur in the context of TMDLs. EPA will review TMDLs and exercise its
oversight authority to ensure that any TMDLs that include provisions
for trading are consistent with the CWA and all applicable Federal
regulations.
Currently, we are not aware of any requests for EPA to approve a
trading program that involves substances other than nutrients or
sediments.
Question 27. The Policy states that, ``EPA supports trading that
involves nutrients or sediment loads. In addition, EPA recognizes that
trading of pollutants other than nutrients and sediments has the
potential to improve water quality . . . if trades and trading programs
are properly designed.'' What conditions and requirements will EPA
implement when evaluating whether a trading substances other than
sediments and nutrients (such as toxics)?
Response. The CWA and its implementing regulations provide the
legal basis for evaluating any potential trade. These evaluations will,
among other things, consider whether trading would result in any
impairment to designated uses (e.g., impacts on aquatic life or people)
or localized violations of water quality standards.
Question 28. The Policy states that, ``trading may be used to
preserve good water quality by offsetting new or increased discharges
of pollutants.'' If a new source of pollution were to begin discharging
pollutants to an unimpaired water body, would other dischargers of
pollution need to reduce their aggregate discharge in order to offset
the new polluter or would the existence of a trading program allow the
new polluter to discharge a level of pollutants that would increase the
aggregate pollutant load in the water body but not cause the water body
to become impaired?
Response. Federal regulations require States to develop and adopt
an antidegradation policy. State antidegradation policies are to be
consistent with the Federal policy which requires that, where the
quality of waters exceeds levels necessary to support designated uses,
that quality must be maintained and protected unless the State finds
that allowing lower water quality is necessary to accommodate important
development. (See 40 CFR 131.12). EPA's policy (See Section III.E.1.)
supports trading to maintain high water quality when trading is used to
compensate for new or increased discharges. Thus the trading policy
supports reductions of existing pollutant loadings to offset the new or
increased load, so that the result is ``no lowering of water quality.''
Nothing in the trading policy changes State antidegradation policies.
Thus a State, in applying its antidegradation policy, may decide to
authorize a new or increased discharge to a high quality water. However
EPA's trading policy encourages States to use trading to offset that
increased load. By providing an additional option for protecting high
quality waters, while still accommodating important development, the
policy may result in fewer State decisions to allow a lowering of water
quality.
Question 29. The Policy states that, ``EPA does not currently
support trading of pollutants considered by EPA to be persistent bio-
accumulative toxics (PBTs). EPA would consider a limited number of
pilot projects over the next two to 3 years to obtain more information
regarding trading of PBTs.'' Does EPA have in mind which regions,
watersheds, localities, or projects might be candidates for pilot
projects under this policy? If so, would you identify them?
Response. With the exception below, EPA is unaware of particular
regions, watersheds, localities or projects that might be candidates
for PBT trading pilots. EPA is only aware of one PBT pilot trading
project: a project to consider whether trading could be used to offset
a discharge of mercury from the Sacramento Regional Wastewater
Treatment Plant (SRWTP). The plant's NPDES permit, issued by the State
of California, requires the plant to identify possible sources of
mercury offsets if the plant discharges more than 5.1 pounds per year
of mercury. The pilot project was funded by EPA in 2002 and will
consider possible approaches to and sources of mercury offsets that
could potentially fulfill the requirements of the NPDES permit.
Question 30. The Policy states that, ``[The pilot trading projects]
initiatives illustrate the importance of voluntary watershed-based
partnerships, inter-agency cooperation, and public participation in
implementation of trading programs'' (emphasis added). The Policy does
not articulate any requirement or mechanism for public participation
during the consideration of a water quality-trading program. What
requirements will EPA put in place to ensure public participation in
water trading programs?
Response. Requirements for public notice, comment and opportunity
for hearing on all NPDES permits and TMDLs, including those that have
provisions for trading, are established by the CWA and its implementing
regulations. In addition to the opportunity for public participation in
trading already provided through NPDES permits and TMDLs, the trading
policy (Section III.G.6.) encourages States and tribes to involve the
public at the earliest stages of trading program development and to
provide easy and timely public access to trading information. As a
practical matter, States wishing to develop a trading program will
probably need to do so through legislation or rulemaking or by
incorporating provisions for trading into core water quality management
programs. This mechanism a State uses is a question of State law and
policy. EPA's trading policy does not specify which approach a State
must use; rather it provides flexibility for States to develop trading
programs that include provisions for public participation that the
State will choose depending on how it goes about developing a trading
program within its jurisdiction.
Question 31. The Policy states that, ``EPA will consider including
provisions for trading in the development of new and revised
technology-based effluent guidelines and other regulations to achieve
technology based requirements, reduce implementation costs and increase
environmental benefits.'' Where in the Clean Water Act does EPA have
the authority to develop trading programs to meet technology based-
standards?
Response. Since 1984, EPA has used trading as a basis for
establishing alternative technology-based effluent limitations--known
as the ``water bubble''--in connection with the Iron and Steel effluent
guideline. 40 C.F.R. Part 420. EPA developed effluent limitations for
the Iron & Steel point source category based on what it determined to
be the best available technology economically achievable (BAT) for
particular types of processes and operations. In determining BAT, EPA
is authorized to consider a variety of factors, including the cost of
achieving the effluent reductions achievable through various technology
options. See CWA 304(b)(2)(B). Facilities are required to achieve the
BAT effluent limitations applicable to their processes and operations,
but they are not required to implement the underlying technology bases
at any place in their facilities. See CWA 301(b)(2)(A). Indeed,
facilities are allowed under the CWA to achieve their technology-based
limitations using technologies that are less expensive than those EPA
identified as its BAT basis. The Clean Water Act does not specify the
point of compliance monitoring; rather, it leaves that decision to EPA.
In the case of the Iron & Steel regulation, EPA allows each
facility with multiple outfalls to apportion (or trade) pollutant
loadings among the various outfalls of the facility that are subject to
Part 420. This intra-plant trading is authorized under 40 C.F.R.
420.03, commonly referred to as the ``water bubble.'' Under the ``water
bubble'' provision, each eligible facility must continue to achieve the
same total mass limitations required by the baseline regulation for a
particular pollutant (for example, the regulation authorizes trading
zinc for zinc, but not zinc for lead), but has the flexibility to do so
through a redistribution of the outfall-specific mass loadings among a
combination of outfalls at the facility. There are a number of
pollutant-and subcategory-specific restrictions on the use of the
``water bubble.'' These are described in 40 C.F.R 420.03. In addition,
the regulation specifically provides that a discharger cannot qualify
for alternative effluent limitations if the application of such
alternative effluent limitations would cause or contribute to an
exceedance of any applicable water quality standard. See 40 C.F.R.
420.03(d). Note however that the policy is not intended to authorize or
encourage trading to meet technology-based standards. On the contrary,
the statement from the policy referenced in the question reiterates
EPA's position that trading to achieve technology-based standards may
only be used when explicitly authorized by regulation, as in the Iron
and Steel water bubble provisions, and not based on the more general
guidance provided in the policy.
Question 32. How does the option to do water quality trading affect
the obligation under the Clean Water Act to develop a TMDL?
Response. Water quality trading does not affect the obligation
under the CWA to develop a TMDL for impaired waters. Section
303(d)(1)(C) requires that TMDLs be developed for waters for which
technology-based limitations and other required controls are not
stringent enough to achieve applicable water quality standards. (See
also 40 CFR 130.7(b)(1)). Nothing in the trading policy changes this
obligation. Where pre-TMDL trading occurs and achieves a level of
reduction necessary to restore impaired uses, then the water body need
not be listed as provided under 40 CFR 130.7(b)(1). In addition the
policy indicates that EPA does not support any trading activity that
would delay implementation of a TMDL.
Question 33. In the Policy, EPA states that trading programs under
a TMDL ``should be consistent with the assumptions and requirements
upon which the TMDL is established.'' Could you please articulate which
specific assumptions and requirements for TMDLs to which the policy is
referring?
Response. As a matter of policy EPA believes that trading should be
consistent with TMDLs to ensure that water quality standards are
achieved. The assumptions and requirements of a TMDL include: 1) the
pollutant load (cap) at a level such that the water body can achieve
water quality standards, 2) allocations of the cap among sources and/or
source categories, and 3) a margin of safety including seasonal
variations. TMDLs providing for trading may specify minimum allocations
for point and nonpoint sources, trading margins that define the
proportion of point source load reductions that is achievable through
nonpoint source actions, and/or trading ratios to address uncertainty
or equivalence between trades. The trading policy language indicates
that trading activity should occur consistent with these and any other
TMDL provisions. Finally, EPA notes that all water quality-based
effluent limits--including those based on trades--must be ``consistent
with the assumptions and requirements'' of TMDLs. See 40 CFR
122.44(d)(1)(vii)(B).
Watershed Rule
Question 34. Despite the progress of the development of TMDLs under
the current rules in a stable regulatory climate, I understand that you
are planning to issue a new rule to replace the TMDL currently in
place. While we do not have a specific proposal, I understand that the
new ``Watershed rule'' would drop the requirement for States to include
an implementation plan, provide States with greater leverage to remove
waters from their list of impaired waters, and rescind EPA's current
mandatory authority to develop a TMDL when a State fails to do so. How
can such a plan make our nation's waters cleaner?
Response. The requirement for an implementation plan in the TMDL
was contained in the July 2000 rule, which has never gone into effect
and was withdrawn by EPA on March 19, 2003. This requirement never had
an impact on the currently in-place TMDL program. Further, EPA's
mandatory duty under Sec 303(d)(2) to establish a TMDL if it
disapproves a State submission would remain in effect under any revised
regulations. As we agree that the program has made progress under the
current requirements, we are carefully reviewing whether or not we need
to go forward with proposal of the watershed rule.
We believe that the proposal currently under informal inter-agency
review would help States address their clean water needs by improving
monitoring and increasing scientific rigor of water quality standards
attainment determination. It would also enhance tracking and public
accountability by providing for a comprehensive listing of all State
waters, according to attainment and monitoring status. The requirements
for removing a water from the impaired category would be essentially
the same as those currently in effect, but in addition, the State would
be required to place the water in some other category of the
comprehensive list and document its basis for doing so. The proposal
would also improve and streamline State water quality management
planning processes to ensure that TMDLs are integrated with other all
water program activities and result in water quality improvement.
Finally the proposal would encourage planning and implementation on a
watershed basis.
We are currently consulting with other agencies and are still
considering whether to proceed with a rulemaking or to rely on guidance
to achieve additional improvement in TMDL program implementation.
Water Security
Question 35. The Bioterrorism Act required that drinking water
utilities submit confidential vulnerability assessments to the EPA for
safekeeping and examination. What role will DHS play in the examination
and storage of those documents currently in EPA's possession and those
security documents that will be submitted in the future?
Response. EPA's information protocol was developed prior to the
establishment of the Department of Homeland Security (DHS). Experts in
the Office of Homeland Security reviewed and commented on this protocol
required by the Public Health Security and Bioterrorism Preparedness
and Response Act of 2002 (Bioterrorism Act). Because DHS has statutory
authority to receive vulnerability assessments, EPA and DHS are in
discussions on how to best use DHS's expertise within the limits
imposed by the Bioterrorism Act.
Question 36. The strategy for Homeland Security that was published
by the Administration last year placed EPA in the lead for water
treatment facilities and critical infrastructure. This makes some sense
to me because EPA has expertise in the operation of these facilities
and now of the dangers involved with some of the chemicals these
facilities store, manufacture, or handle. Yet there are some dissenters
who have expressed doubt that EPA can appropriately secure any
information it obtains. These organizations advocate cutting EPA out of
the receipt or review of information pertaining to the security of
these facilities. I assume your agency has the ability to secure
information, and in fact, I am aware that EPA has received trade secret
and confidential information for years and has secured it? Are my
assumptions correct?
Response. Yes, your assumptions are accurate with respect to EPA's
ability to receive and store confidential information. In fact, a staff
member from the Office of Pollution Prevention and Toxic Substances,
who is on detail to the Water Protection Task Force and has extensive
knowledge and experience in dealing with confidential information, had
lead responsibility for developing the protocol for ensuring the
confidentiality of data contained in the water systems' vulnerability
assessments. In October 2002, a draft protocol was presented to a wide
range of stakeholders, including representatives from large, medium,
and small drinking water systems, and their concerns were addressed to
their satisfaction. The final protocol contains an appendix that
describes in detail the Agency's experience in securing such sensitive
and confidential information as grand jury deliberations, national
security data, and confidential business information submitted by
regulated industries.
Question 37. One of the requirements of the Drinking Water security
provisions of the Bio-terrorism Preparedness and Response Act requires
that water facilities serving over 3,300 people submit vulnerability
assessments of their treatment facilities. What does EPA plan to do
with these vulnerability assessments? Will they be shared with the
Department of Homeland Security for use in its infrastructure
protection activities?
Response. Currently, EPA and DHS are discussing formal processes to
share information contained in vulnerability assessments. EPA's review
of vulnerability assessments and the certification of their completion
will focus on compliance with pertinent provisions of the Bioterrorism
Act. In addition, we may analyze a subset of these assessments to
assist in the future development of additional tools, training, and
guidance for water systems in protecting their infrastructure. An
appropriate mechanism for DHS involvement needs to be implemented to
ensure consistency with statutory requirements. For instance, DHS staff
would have to be designated by EPA's Administrator pursuant to the
Bioterrorism Act.
Question 38. Can the nation's vulnerabilities to terrorist threat
be mapped without inputs such as a vulnerability assessment from key
infrastructure sectors such as the water and wastewater sectors?
Response. Given the variety in size and complexity of water and
wastewater utilities, vulnerability to terrorist threats for these
systems is very site-specific. It is important for the water sector to
assess its particular vulnerabilities and work with local governments
to ensure that they can both protect the systems within their
jurisdiction and respond effectively in case of terrorist or other
intentional acts.
Question 39. We understand from some in the drinking water
community that some water utilities have objected to the requirement of
the Bioterrorism Preparedness and Response Act to submit their
vulnerability assessment to EPA. Is EPA aware of any utilities that do
not plan to submit vulnerability assessments?
Response. Last summer organizations representing water utilities
expressed concern on behalf of some water utilities about the Agency's
ability to protect and secure confidential and sensitive data included
in vulnerability assessments. EPA's information protocol addressed
these issues and these organizations withdrew their request that
vulnerability assessments be sent to the DHS instead of EPA. At this
time, EPA has not been informed of any utility that is not planning to
send its completed vulnerability assessment to the Agency as required
by the Bioterrorism Act.
Question 40. If a water utility refuses to submit their
vulnerability assessment to EPA, what enforcement actions does EPA have
at its disposal to enforce that provision of law? If a utility fails to
submit its vulnerability assessment, will EPA file enforcement actions
against those utilities?
Response. Enforcement action is authorized through the Safe
Drinking Water Act and enforcement response guidelines have been
developed for this purpose. Before such authority is used, EPA intends
to send letters to systems that do not submit their vulnerability
assessments on or near the statutory deadline that was established
according to the size of the population served by each community water
system. We expect that such communication will encourage systems to
comply expeditiously with the law.
Endangered Species Act
Question 41. EPA and the Services have issued an Advance Notice of
Proposed Rulemaking to promulgate counterpart regulations under the
Endangered Species Act regarding EPA action in its pesticide regulatory
program. Could you provide the fiscal year 2003 amount and the fiscal
year 2004 budget request for the ESA part of the pesticide program and
any projected cost increases or cost savings as a result of the ANPRM?
Response. Endangered Species consultation is part of the process of
registering or reregistering a pesticide, and consequently no separate
activity budget is tracked for endangered species; resources are
included in the allocation for registration and reregistration. EPA is
using existing resources and expertise in ecological risk assessment
within the pesticide program and elsewhere here in the Agency to
address its pesticide obligations under the Endangered Species Act
(ESA).
Through ANPRM the Agency is seeking comments and suggestions for
ways to improve the process. The EPA does not have a sense at this time
what resources will be needed or changes will take place. One of the
priority activities, as announced in the ANPRM, is to work with the
Fish and Wildlife Service, the National Marine Fisheries Service, and
the U.S. Department of Agriculture to develop approaches to pesticide
endangered species protection that will better integrate existing
pesticide endangered species processes.
We expect these efforts to improve the efficiency and effectiveness
of consultations on pesticide actions to enhance protection of species
that are threatened or endangered and their proposed or designated
critical habitat. At the same time, it must be noted that the task
confronting the Agency and the Services is large and complex. There are
many thousands of combinations of pesticide uses and species that may
occur in many different parts of the country. All of these actions
require appropriate assessment to assure compliance with requirements
of the ESA while minimizing impacts to agriculture.
Air Quality
Question 42. When asked if increasing greenhouse gas emissions will
increase the risks of global warming and climate change, you said there
is a correlation between atmospheric concentrations and climate change.
What is the correlation?
Response. The 2001 National Academy of Sciences Report on climate
change stated that: ``Reducing the wide range of uncertainty inherent
in current model predictions of global climate change will require
major advances in understanding and modeling of both (1) the factors
that determine atmospheric concentrations of greenhouse gases and
aerosols, and (2) the so-called ``feedbacks'' that determine the
sensitivity of the climate system to a prescribed increase in
greenhouse gases (Summary). . . . A major limitation of these model
forecasts for use around the world is the paucity of data available to
evaluate the ability of coupled models to simulate important aspects of
past climate. In addition, the observing system available today is a
composite of observations that neither provide the information nor the
continuity in the data needed to support measurements of climate
variables. Therefore, above all, it is essential to ensure the
existence of a long-term observing system that provides a more
definitive observational foundation to evaluate decadal-to century-
scale variability and change (p.24).
Thus, the President has challenged the scientific community to
improve our understanding of a number of important uncertainties
regarding climate change, including the effect of natural variations in
climate, the actual degree and rate of warming, and how some of our
actions could impact it.
Some of these uncertainties were listed in testimony before the
Senate Commerce Committee last year by Dr. James Mahoney, the Director
of the Climate Change Science Program of the Department of Commerce. He
noted that: ``Much has been learned about greenhouse gas emissions,
abundance in the atmosphere, radiative properties, reaction rates and
removal rates; and global climate models have developed to the point of
moderate utility as analysis tools for application on a global scale
and over long time averaged conditions. However, significant
uncertainties remain regarding several issues that are critically
important for defining optimal strategies for the management of global
change. Among several key uncertainties, the following are illustrative
of the continuing need for improved scientific understanding:
The significant differences in long-term global average
temperature changes projected by various well-recognized climate
models.
The relative importance of: (1) carbon-based (black
carbon) aerosols; (2) sulfate-based aerosols; and, (3) CO2
and other greenhouse gases in influencing climate change--each related
to differing control strategies.
The uncertainties in understanding the dynamics of marine
ecosystems in the carbon cycle. Typical ocean uptake of CO2
by biological productivity is many times larger than total global
fossil fuel CO2 emissions. Enhancement of this biological
productivity could affect future atmospheric CO2 levels.
Major uncertainties in climate-ecosystems interactions,
and land use/land cover influences on climate.
Uncertainties in understanding global water cycles,
including the current inability of general circulation models to
successfully represent water vapor transport in the equatorial regions.
The poor regional performance of current general
circulation models, which severely restricts the examination of
potential global change influences on key regional ecosystems such as
bays, estuaries, and inland watersheds.''
The Administration, through its climate change research plan, is
working to reduce some of these uncertainties in the relationship
between increasing atmospheric concentrations of greenhouse gases and
climate change.
Question 43. What implications does this correlation you have
referenced between greenhouse gas emissions and the risks of global
warming and climate change have for your responsibility as EPA
Administrator for protecting public health and the environment?
Response. EPA and all of the other executive branch agencies
involved in climate change science, technology development, and
voluntary emissions mitigation efforts are working together on the
President's effective and science-based climate change strategy. This
strategy establishes environmentally and economically sensible goals,
concrete steps to meet the goals, and a balanced portfolio of research,
emission reductions, and international cooperation. The U.S. strategy
has three-prongs: slowing the growth of net greenhouse gas (GHG)
emissions; laying important technological and scientific groundwork for
both current and future action; and, working with other nations to
develop an efficient and effective global response. This strategy
builds on the Administration's June 2001 commitment to improve our
understanding of the causes and potential harms posed by climate
change, and to develop technologies that offer promise to significantly
slow the growth of emissions. It is also the first step in a long-term
commitment to slow and, if the science justifies, stop and then reverse
the growth of GHG emissions. Importantly, it takes advantage of our
growing experience with building better and more flexible institutions
to address environmental problems.
The first element of the United States climate strategy is slowing
the growth of our GHG emissions. The President set a national goal of
reducing U.S. greenhouse gas intensity (GHG emissions per dollar of
GDP) by 18 percent over the next 10 years. Like an absolute emissions
target, an intensity reduction of this magnitude requires real effort.
Unlike an absolute emission target, an intensity target will not
inadvertently hurt our economy. EPA's Climate Leaders program, the DOE-
EPA Energy Star program, and other EPA voluntary greenhouse gas
programs are working to assist the Nation reach the President's
intensity goals.
The second element focuses on creating a solid foundation for
current and future policies-investments in science, technology, and
institutions. Better science promotes better decisionmaking. Better
technology offers the promise to slow emissions growth significantly
and more cost effectively. Better institutions enable us to pursue the
lowest-cost emissions reduction opportunities, whatever they may be,
whenever they arise over time, and wherever they occur both within and
across nations. Improvements in the existing voluntary registry of
greenhouse gas emissions, along with registered reductions for real
emission reductions, are an important part of this institutional
foundation. The process for improving the registry involves DOE, EPA,
USDA, Commerce, and other Federal agencies working collaboratively in
creating better measurement methods and verification of the different
greenhouse gases emitted by a wide variety of sources and activities,
providing greater confidence in the reported results, and encouraging
firms to take account of their emissions. Registering real emission
reductions provides a mechanism that allows firms to avoid being
penalized under any future climate policy or be rewarded under any
future incentive policy; provide tangible evidence of the impacts of
voluntarily adopting advanced technologies; and provide incentives to
curb future emissions.
The final element of the President's approach incorporates
international efforts, recognizing the critical importance of
developing-country participation in any effective international
response to climate change. Again, EPA is assisting in a number of
bilateral and multilateral efforts that include both near-term efforts
to slow the growth in emissions and longer-term efforts to build
capacity for future cooperation.
Clear Skies Act
Question 44. You indicated that if Clear Skies is implemented,
there will be a reduction over the next 10 years of 12,000 fewer
premature deaths than will occur under the current Clean Air Act.
Please provide an estimate of the number of people that are dying
prematurely every year because of power plant pollution now.
Response. EPA's analyses of the effect of power plant emissions on
premature deaths have focused on the incremental benefits of future
additional controls on this sector. EPA has not estimated the total
number of premature deaths associated with current power plant
emissions. Based on analyses by others as well as EPA's incremental
analyses to date, the impact from this sector may be in excess of
20,000 premature deaths per year. The research upon which EPA's
estimates are based show a rate of change rather than an absolute
number.
Question 45. How many of those dying prematurely every year (as
estimated in the previous question) from plant pollution will be saved
by final regulations the Bush Administration has promulgated under
authority of the existing Clean Air Act to date?
Response. Based on available research on ambient air pollution, EPA
estimates that premature deaths associated with power plant emissions
are overwhelmingly due to fine particle pollution. EPA's first ambient
PM2.5 standard was adopted in July 1997 and did not clear
its final legal hurdle allowing it to be implemented until 2002. Since
that time, the Bush Administration has moved aggressively under the
existing Clean Air Act to reduce emissions that contribute to fine
particle pollution. For example, the Act authorizes EPA to set
standards for diesel powered engines, which contribute significantly to
fine particle pollution in many parts of the country. The Bush
Administration has moved forward to implement very stringent new fuel
and engine standards for diesel trucks and buses. In addition, the
Administration recently proposed similar standards for non-road diesel
fuel and engines that will come into effect in 2007. EPA estimates
that, when these standards for on-road and non-road diesel engines and
fuels are fully implemented, they will prevent approximately 17,900
premature deaths every year.
The Bush Administration also recognizes that, in order to address
the problem of fine particles, power plant emissions of SO2
and NOx will need to be reduced substantially. This is why the
President has proposed the Clear Skies Act, which would reduce these
emissions by approximately 70 percent from today's levels.
Congressional action on Clear Skies is needed because, under the
existing Clean Air Act, EPA has limited authority to regulate existing
power plants. In order to reduce power plant emissions of
SO2 or NOx under current law, the Agency would need to go
through a long and cumbersome process. Among other things, EPA would
need to conduct extensive additional analysis, conduct public hearings
and take public comment, and then finalize a rule. This rule would then
be subject to litigation, which often delays actual emissions
reductions. Even after litigation, States would need to take additional
action to decide how specific power plants would be affected by EPA's
rule. The only time that the Agency has undertaken such an effort began
in the mid-1990's. After almost a decade of rulemaking and litigation,
this effort will finally begin to achieve significant emissions
reductions in May of 2004, assuming the last round of legal challenges
is resolved in EPA's favor, as we expect. The major steps in this
process are shown on the attached chart.
The Agency is moving as quickly as possible to develop a regulatory
approach for reducing power plant emissions. Although this approach
could provide substantial public health benefits, it will fall far
short of the benefits that would be achieved under Clear Skies for at
least the next decade. [LLA1] In contrast to the lengthy process
provided under the current Clean Air Act, the emissions reductions
under Clear Skies would start almost immediately upon enactment.
Question 46. How many tons of pollution will not be emitted from
power plants over the next 10 years due to regulations promulgated by
the Bush Administration under the authority of the existing Clean Air
Act?
Response. One of the main reasons we need Clear Skies to pass this
year is that, over the next decade, we can get much greater
SO2 and NOx emission reductions from power plants under
Clear Skies than we expect under the current Act. EPA has limited
statutory authority to reduce power plant SO2 and NOx
emissions over the next decade. Under the current Act, new limits on
power plant SO2 and NOx emissions will be driven in large
part by the need to attain the fine particle standards adopted in 1997
and, to a lesser extent, by the need to attain the 1997 8-hour ozone
standards. Under current requirements States must establish a
monitoring system, collect and quality assure 3 years of data, and
recommend to EPA whether areas should be designated attainment or non-
attainment for the fine particle standard. By 2004, EPA then must
designate areas as in or out of attainment.
To help bring into attainment those areas that will be designated
non-attainment, we will need additional limits on SO2 and
NOx emissions. We expect that these limits will be imposed as a result
of EPA and State rulemakings to address pollution transport. The most
likely model is the NOx SIP Call, in which EPA set statewide budgets
for NOx emissions for certain States and then required those States to
adopt regulations to meet those budgets. After spending several years
working with States to develop a rule, the NOx SIP Call was proposed by
EPA in 1997 and finalized in 1998. The rule was challenged and the
court stayed the September 1999 deadline for State plan submission. The
court upheld the SIP Call in early 2000, and EPA subsequently requested
the court to lift the stay of the States' obligation to submit the
plans. After the court lifted the stay--which had resulted in a 1-year
delay in SIP submission--EPA provided the States with a similar 1-year
extension to implement the rule. The rule requires most affected
sources to begin reducing emissions in 2004.
To reduce power plant emissions of hazardous air pollutants
(principally mercury), EPA is also working on the utility Maximum
Achievable Control Technology (MACT) standards, which is currently
under discussion by a work group under the Federal Advisory Committee
Act (FACA), and is scheduled for proposal in December of 2003 with
anticipated promulgation in December 2004. Under this schedule and
absent litigation delays, the initial compliance date for the standard
would be December 2007 with a possible 1-year extension. At this pre-
proposal stage, it is not yet possible to provide a quantitative
estimate of the tons of pollution that would be reduced by this
standard.
Question 47. In September 2001, EPA told the electric industry that
the impending regulatory schedule could include a requirement for
States to revise their implementation plans to dramatically reduce
sulfur dioxide emissions in 2005 or 2006 (e.g. SOx SIP Call). This
would be necessary to achieve timely attainment with the fine
particulate standard and to avoid thousands of premature deaths
annually. What progress has the Agency made on promulgating this rule?
Response. Whether through legislation or regulation, we will need
to reduce SO2 emissions to bring areas into attainment with
the fine particle standard. EPA supports Clear Skies because it would
provide greater progress through 2010 in reducing power plant emissions
than would the regulatory processes under the current Clean Air Act.
Clear Skies would provide cost-effective controls, coordinated fashion,
no litigation delay, and certainty to industry. But, since we cannot
guarantee that legislation will be enacted, or that the legislation
will address all sources of interstate pollution, we are working on a
PM Transport Rule. Last fall we established an intra-Agency work group,
and have begun planning and conducting various technical analyses that
are necessary for such a rule. We are also meeting regularly with
State, local, and Tribal government stakeholders to discuss the plans
for and results of various technical products. However, this is a long
and cumbersome process and will most certainly be litigated. Although
this approach could provide substantial public health benefits, it will
fall far short of the benefits that could be achieved under Clear Skies
through 2010 and cost much more.
Climate Change Research
Question 48. You said that more needs to be done in climate
research. The National Academy of Sciences has found that the
Administration's draft climate research plan ``lacks a guiding vision,
clear goals and explicit priorities.'' The Academy recommended that the
plan be substantially revised to enhance efforts to support
decisionmaking and set the stage for implementation. However, the
fiscal year 2004 budget request includes a zero percent increase for
climate change research. How much more should we be spending?
Response. EPA believes that the level of resources in our fiscal
year 2004 President's Budget Request for research on global change
($21.5 million) is appropriate. EPA's Global Change Research Program is
closely coordinated with the Climate Change Science Program (CCSP),
which was created under the auspices of the cabinet-level Committee on
Climate Change Science and Technology Integration (CCCSTI).
Question 49. What provisions in the Clear Skies proposal will
ensure that toxic hot spots do not result from using a cap-and-trade
system for mercury emissions?
Response. When Clear Skies is fully implemented, mercury emissions
will be reduced 69 percent from 1999 emission levels--from 48 tons to
15 tons. This cap would limit any possible increases of mercury
emissions for the power sector. A national cap for mercury would cap
the total emissions of mercury nationwide, unlike the existing act
which could result in incremental increases in mercury over time.
Seven years of experience with the Acid Rain Program has clearly
demonstrated that market-based cap and trade programs achieve
substantial emissions reductions, which significantly and efficiently
improve air quality. Analysis of Acid Rain Program results by EPA and
independent analysts (Environmental Law Institute, Environmental
Defense, and Resources for the Future) have found that these emissions
reductions have been achieved without creating hot spots.
EPA's analyses of Clear Skies do not show significant geographic
shifts in emissions for any of the three pollutants. EPA intends to
undertake additional assessments to further investigate potential local
impacts of Clear Skies. Finally, under Clear Skies, States could impose
their own more stringent requirements.
Question 50. You testified that the Clear Skies proposal will
provide a 70 percent reduction in emissions of sulfur dioxides,
nitrogen oxides, and mercury over the next 10 years. Please provide the
initial and final years and emission levels which you are using to
arrive at this reduction.
Response. When fully implemented, Clear Skies will cap power sector
emissions of SO2 (3 million tons/year), NOx (1.7 million
tons/year), and mercury (15 tons/year) at levels that constitute an
approximate 70 percent reduction of each pollutant from year 2000
levels. While the final caps for each pollutant are established in
2018, it is projected to take slightly longer to achieve the full
emission reductions for these pollutants due to the early reductions
and banking provisions included in Clear Skies. According to Clear
Skies modeling completed in 2002, Clear Skies will reduce power sector
emissions of SO2 from approximately 11 million tons/year in
2000 to 6.6 million tons/year in 2010 and 3.9 million tons/year in
2020; NOx emissions from 5 million tons/year in 2000 to 2.1 million
tons/year in 2010 and 1.7 million tons/year in 2020; and mercury from
48 tons/year in 2000 to 25.8 tons/year in 2010 and 18.2 tons/year in
2020.
Greenhouse Gas Intensity
Question 51. In the budget hearing, and recently, on CNN's ``Inside
Politics'', you characterized the President's global warming policy
goal as an 18 percent reduction in greenhouse gas emissions. Please
clarify how the voluntary ``emissions intensity'' approach will result
in any real reductions in total emissions.
Response. The Administration's plans for addressing climate change
calls for an 18 percent reduction in the greenhouse gas (GHG) intensity
of the U.S. economy over the next 10 years. Greenhouse gas intensity
measures the ratio of GHG emissions to economic output. This approach
focuses on reducing the growth of GHG emissions while sustaining
economic growth. It sets America on a path to slow the growth of
greenhouse gas emissions, and as the science justifies, to stop and
then reverse that growth.
In efficiency terms, the 183 metric tons of emissions per million
dollars of GDP that we emit today will be lowered to 151 metric tons
per million dollars GDP in 2012. Existing trends and efforts in
technology improvement will play a significant role. The President's
commitment will thus achieve 100 million metric tons of reduced
emissions in 2012 alone, with more than 500 million metric tons in
cumulative savings over the entire decade. This goal is comparable to
the average progress that nations participating in the Kyoto Protocol
are required to achieve.
Mobile Source Toxics Funding
Question 52. Has the Agency requested funds in the fiscal year 2004
budget to conform to its announced schedule of issuing a final rule to
reduce emissions of hazardous air pollutants from mobile sources in
July 2004, as provided for in section 80.1045 of title 40, CFR?
Response. On April 15, 2003, EPA proposed standards for nonroad
diesel engines and fuel. Issuing these standards is likely to be one of
the most important actions we can undertake to reduce the risks from
mobile sources of hazardous air pollutants (air toxics). We have
accelerated our consideration of this issue ahead of a more general
mobile source air toxics rule.
EPA did also commit to a new rule by July 2004 that would evaluate
the need for and feasibility of additional controls of mobile source
air toxics. This rulemaking was to be informed by additional research
on ``hot spots,'' as well as the full range of exposure. Although we
are making progress on this research and other work to support a new
toxics rule, results from two key exposure studies will not be
available until December 2003. It will then take about 1 year to
develop a proposal informed by these studies. Therefore, our current
plan is to propose the new rule in December 2004 and finalize as soon
as possible after that date.
Question 53. What steps, on the international level, has the
Administration taken to reduce mercury emissions globally?
Response. EPA has been proactive in supporting mercury research on
a global scale, and in shaping international mercury policy issues to
reduce emissions and uses of mercury.
An important recent activity has been EPA(s leadership in the
development of a Global Assessment of Mercury report for the United
Nations Environment Programme (UNEP). Based on a suggestion from EPA
and the Department of State, the UNEP Governing Council decided in
February 2001 to conduct a global assessment of mercury. The
assessment, with strong U.S. input, was completed in collaboration with
governments, intergovernmental and non-governmental organizations, and
the private sector in late 2002, and addressed the following:
Sources, emissions inventories, long-range transport,
chemical transformations, and fate of:
mercury;
Production and use patterns of mercury as a global
commodity;
Prevention and control technologies and practices, with
associated costs and effectiveness;
Exposures and effects on humans and ecosystems;
Ongoing actions and plans for controlling releases and
limiting use and exposures; and
Options for international action.
In February 2003, the UNEP Governing Council accepted the key
findings of the Global Mercury Assessment and agreed on a program for
international action on mercury. This decision was the result of multi-
national negotiations that were led by EPA with support from the U.S.
Department of State. The new UNEP mercury program will result in
significant action to address mercury releases into the environment,
including capacity building activities to characterize mercury
pollution sources and to develop appropriate strategies to mitigate
them.
The State Department has the lead for organizing followup actions
by the U.S. Government in support of the new UNEP mercury program. We
anticipate that EPA will have an important technical role in helping
other countries to reduce releases of mercury to the environment
(primarily air emissions), and also to reduce the demand for, and uses
of, mercury that impact human health and the environment.
In addition, the United States has been working with various
regional organizations and fora on mercury, including:
The U.S./Canada Great Lakes Bi-national Toxics Strategy;
The North American Regional Action Plan for Mercury under
the North American Commission for Environmental Cooperation (Mexico,
Canada, U.S.);
The Arctic Environmental Protection Strategy under the
Arctic Council;
The Long Range Transport of Atmospheric Pollutants Heavy
Metals Protocol under the U.N. Economic Commission for Europe; and
The Northeast Mercury Study (Framework for Action) with
the Conference of New England Governors and Eastern Canadian Premiers.
EPA is at the forefront of atmospheric mercury research into
transformation and fate of mercury to better understand processes for
global cycling. This research, in collaboration with other agencies and
countries, is being undertaken at Ny Alesund, Norway, Mauna Loa, Hawaii
and Cheeka Peak, Washington.
EPA is funding and participating in an Arctic Council project to
develop an Arctic inventory for mercury, with a focus on Russia. A
pilot co-benefit emissions reduction research project is ongoing in
Russia, as is a coal mercury inventory project.
EPA is collaborating with the Department of Energy, under their
Memorandum of Understanding with China, to shape an improved emissions
inventory and understanding of emission sources for mercury and their
characteristics in China. A model is being developed for the Chinese
emissions sources and emissions control data, complemented by training
on co-benefit emissions reduction approaches. An evaluation of mercury
in coal is also ongoing, with USGS partnering on coal testing.
Additionally, a number of emissions reductions, pollution
prevention and capacity building projects are in the developmental
stage. One of these is international outreach on best practices for the
chloralkali sector, in conjunction with international partners in
public and private sectors. Another is collaboration with UNIDO,
through which EPA has been invited to serve on the Advisory Board, for
artisanal mining practices that utilize mercury and contribute mercury
emissions globally. Through a Letter of Understanding with Italy, EPA
will advance a number of international mercury activities, initially
through hosting international workshops on atmospheric transport and
fate, including atmospheric transport modeling, and on human health
toxicology.
EPA looks forward to shaping and supporting the new UNEP Mercury
Program, and will continue to seek partnerships in the public and
private sectors to fill important data gaps in our understanding, as
well as proactively engage in further pollution prevention, technical
assistance and capacity building activities.
Question 54. The section 812 study of the costs and benefits of the
Clean Air Act estimates that 6.3 million lives will be saved by Title
VI implementation, largely through reductions in skin cancer. This
Title protects the stratospheric ozone layer from depletion and
implements our compliance with the Montreal Protocol. Recently, you
decided that it would be reasonable for the United States to continue
consuming about 30 million pounds of ozone-depleting methyl bromide in
2005 and 2006 and perhaps onward. Our treaty commitment says that
number should be zero, not 30 percent of our 1991 baseline. What effect
would this continued use of methyl bromide have on the number of lives
estimated to be saved by Title VI?
Response. I would like to clarify something that seems implicit in
your question, which appears to suggest that the U.S. request for a
critical use exemption is inconsistent with our treaty obligation under
the Montreal Protocol and/or our obligations under the Clean Air Act.
The Montreal Protocol's 2005 phaseout provision for methyl bromide
included a specific allowance for the continued use of that substance
after 2005 for uses agreed by the Protocol Parties to be ``critical
uses''. The 1998 amendment to the Clean Air Act also changed the
absolute 2001 phaseout of methyl bromide, stating that ``the
Administrator shall not terminate production of methyl bromide prior to
January 1, 2005.'' Further, the Act states that the Administrator shall
follow a schedule for reduction and termination that is in accordance
with, but not more stringent than, the phaseout schedule to the
Montreal Protocol Treaty (CAA 604 (h)). Accordingly, our request to the
Parties for a critical use exemption is fully consistent with both our
treaty commitment and the Clean Air Act.
Your question also cited the section 812 study relative to the
number of lives saved from the implementation of the ozone protection
provisions of the Clean Air Act. We are indeed very proud of the
enormous health related benefits that have ensued from the
implementation of Title VI of the Clean Air Act. As noted, modeled
calculations have estimated that full implementation of the Montreal
Protocol would save 6.3 million lives. However, since the time of that
analysis, a great deal has changed. First, as noted above, the 1998
amendments to the Clean Air Act allowed for exemptions for the
production, importation, and consumption of methyl bromide for critical
uses in Section 604(b)(6). In addition, it changed the phaseout of
methyl bromide from 2001 to 2005 in Section 604(h) of the CAA and
provided for exemption for quarantine and preshipment uses of methyl
bromide as in Section 604(d)(5) in accordance with the Montreal
Protocol. This quarantine and preshipment exemption allows methyl
bromide to continue to be used to protect the United States from
invasive species that are not found within our borders, such as the
Mediterranean Fruit Fly. Also, since the original section 812 analysis
was done, the Agency has promulgated rules virtually phasing out
certain HCFCs and HBFCs and allowing the continued use of CFCs for
metered dose inhalers (as used by asthmatics) until alternatives can be
commercialized. We are unable at this time to determine the changes to
the calculations of lives saved that would result from the United
States receiving a methyl bromide critical use exemption at the level
now being requested.
Montreal Protocol: Public Comment on Critical Use Exemptions
Question 55. Will fiscal year 2003 or fiscal year 2004 funds be
used so that the public will be able to comment on the ``critical use''
exemptions that you have applied for to the international body that
oversees the Montreal Protocol, before you finalize those uses by rule
later this calendar year?
Response. Consistent with our obligation under section 604 of the
Clean Air Act, EPA will provide an opportunity for the public to
comment on the proposed 2005 distribution of methyl bromide that is
exempted by the Protocol Parties on the basis of our 2003 request. Over
the coming months, we will conduct outreach to understand the public's
views on a potential distribution framework, and we will draft a
proposed framework to facilitate the distribution consistent with any
directives of the Parties. We anticipate that most of this initial work
will be done with fiscal year 2003 funding. The subsequent work of
developing and publishing the specific allocation is likely to be done
using fiscal year 2004 funding. However, because the Parties' decisions
will not be final before the end of November 2003, this last step is
not likely to take place until early 2004.
New Source Review
Question 56. How many Agency FTE's were working on enforcement and
compliance with New Source Review requirements in each of fiscal years
2002 and 2003, and how many will be working on it if the President's
budget for fiscal year 2004 is approved by Congress?
Response. EPA does not prepare budgets by media. Since the
inception of the Government Performance Results Act (GPRA), the Agency
has aligned its budget with our strategic Goals and Objectives.
Accordingly, EPA does not separately track enforcement of NSR as a
budget element. (The New Source Review Program falls under the Agency's
Goal 9, ``A Credible Deterrent to Pollution,'' Objective 1, ``Increase
Compliance Through Enforcement.'') Nevertheless, in response to a
question raised by Senator Jeffords last summer, Governor Whitman
estimated that the Agency had invested more than 200 full-time
equivalents (FTEs) in NSR enforcement since 1999, for an average of
about 67 FTEs per year. This time period included the discovery process
for a number of trials, and the Agency devoted a large portion of its
available air enforcement resources toward that effort. Having
fulfilled these discovery obligations, personnel have been redirected
toward investigating and prosecuting new NSR cases. The number of FTEs
currently dedicated to NSR enforcement in the Agency remains consistent
with the Governor's original estimate. No change in the overall level
of enforcement FTEs is contemplated in the President's fiscal year 2004
budget request.
Question 57. How many cases of non-compliance with the New Source
Review program's requirements has the Agency referred to the Department
of Justice for prosecution in the last 12 months?
Response. Since April of 2002, EPA has referred twenty-six cases of
non-compliance with the New Source Review program's requirements to the
Department of Justice for prosecution.
Diesel Retrofit Funding
Question 58. The Administration has requested only a small amount
for the heavy duty diesel retrofit program and the clean fuel vehicle
procurement program. Wouldn't a larger request be warranted given the
health benefits from such conversions and buying cleaner vehicles,
especially at the local level and schools?
Response. In fiscal year 2004, projects will continue to focus on
reducing PM from older, high-polluting trucks and buses, with a
particular emphasis on raising awareness of the problems of children
riding to school in older, high-emitting diesel vehicles.
EPA has required the production of low-sulfur diesel fuel that will
allow newer control technologies to more effectively reduce harmful
diesel particulate emissions. Further, EPA encourages areas to improve
school bus emissions by giving credit for such programs in State
Implementation Plans.
Also, EPA has established an initiative called Clean School Bus
USA: Tomorrow's Buses for Today's Children. This effort seeks to reduce
children's exposure to diesel exhaust across the country by: 1)
encouraging schools to implement practical policies and practices to
eliminate unnecessary school bus idling; 2) installing effective
emission control systems on newer buses; and 3) replacing the oldest
buses in the fleet with new one.
MACT
Question 59. Will all the final MACT rules be promulgated in this
calendar year?
Response. No, there are four remaining MACT rules that are
scheduled to be promulgated February 28, 2004. They are:
Plywood and Composite Wood Products
Auto & Light Duty Truck Manufacturing (Surface Coating)
Reciprocating Internal Combustion Engines (RICE)
Industrial, Commercial, and Institutional Boilers &
Process Heaters
Question 60. Recently, there was an article in the Los Angeles
Times suggesting that the Agency might not follow the Act's directions
to complete the MACT rules, but might instead rely on some type of risk
analysis to avoid implementation. What would the legal basis for not
completing these MACT rules on schedule?
Response. The article was incorrect. The Agency will issue all
statutorily mandated standards. We have proposals that would allow
individual sources to comply with these standards by demonstrating that
they already pose insignificant risks, rather than simply installing
pollution controls. We took comment on those proposals, we are
reviewing comments on them, and we look forward to a vigorous
discussion. These rules include the Combustion Turbines MACT rule, to
be promulgated August 2003, and four other MACT rules to be promulgated
February 2004 as follows: Plywood & Composite Wood Products; Auto &
Light Duty Truck Manufacturing (Surface Coating); Reciprocating
Internal Combustion Engines (RICE); and Industrial, Commercial, and
Institutional Boilers & Process Heaters.
Particulate Matter Research
Question 61. Why is there a small cut ($1.5 million) in the
research program looking at particulate matter exposure measurement and
health effects research which, according to the fiscal year 2004 budget
documentation, ``will delay long-term epidemiological studies to
resolve uncertainties related to PM health effects'' and will ``reduce
the scope of human exposure measurements . . . ?''
Response. EPA decided to delay selected particulate matter (PM)
health and exposure research in order to accelerate research necessary
to support implementation of the PM NAAQS. In the fiscal year 2003-2004
timeframe, States will begin preparing State Implementation Plans to
meet the PM NAAQS. The increase in implementation-related work is to
meet the immediate air quality modeling and emission inventory needs of
States, Regional Planning Organizations, and EPA's Office of Air and
Radiation. The redirection reflects the Agency's commitment to conduct
research that addresses priority science needs supporting the Agency's
mission.
This shift represents a delay, not elimination, of PM health
effects research that is still expected to provide valuable scientific
data for future NAAQS decisions. The redirection will not impact
planned funding to support long-term epidemiological studies beginning
in fiscal year 2004. The delay will not impair EPA's ability to provide
meaningful data on long-term epidemiology and human exposure to PM in
time for the next revision of the NAAQS.
NAAQS Implementation: Key Milestones
Question 62. Please provide for the record the expected dates and
times of key milestones for implementation of the 8-hour and fine
particulate matter standards.
Response. Key milestone in the implementation of the 8-hour
standard are:
May 2003.......................... EPA proposes implementation rule
July 2003......................... States/Tribes recommend designations
December 2003..................... EPA finalizes implementation rule
April 2004........................ EPA finalizes designations
April 2007........................ State/Tribal plans due
2007-2021......................... Range of attainment dates
Key milestones for implementation of the fine particulate matter
standard are:
September 2003.................... EPA proposes implementation rule
February 2004..................... States/Tribes recommend designations
September 2004.................... 1EPA finalizes implementation rule
December 2004..................... EPA finalizes designations
December 2007..................... State/Tribal plans due
2009-2014......................... Range of attainment dates
Question 63. Please describe the resources, guidance, and funds
that EPA will use and provide to the States and communities in FY04 for
ensuring that they will be prepared to demonstrate transportation
conformity in the event of probable new nonattainment designations
under the 8-hour ozone and fine particulate matter standards.
Response. EPA is committed to working with DOT to provide timely
guidance to new nonattainment areas before and as they implement the
conformity program to avoid any unnecessary delays in transportation
projects. We recognize that States and local areas will likely need
assistance in understanding and implementing the new guidance and
standards and we are prepared to provide help with this transition.
Implementation of the new air quality standards for ozone and
particulate matter will necessitate changes in the existing conformity
regulation. EPA is currently working on conformity guidance and a
rulemaking to address the new standards. The issues addressed in this
upcoming guidance and rulemaking include:
Determining what conformity tests apply before an area
submits an air quality plan that includes transportation conformity
budgets;
Addressing PM2.5 as a criteria pollutant for
conformity; and
Providing flexibility in implementing conformity under
the new standards, as appropriate.
EPA plans to issue this guidance and rulemaking prior to
designating areas so that the conformity requirements will be known
prior to areas being subject to them. EPA and DOT, as well as
stakeholders across the U.S., have a wealth of experience in
implementing conformity.
There are also a number of existing training courses that areas may
find beneficial as they prepare to address conformity requirements.
These courses include:
NTI Conformity Course: The National Transit Institute has been
offering a course called, ``Introduction to Transportation/Air Quality
Conformity'' in locations across the country. This is a 21/2 day course
designed for staff members of agencies involved in the conformity
process and is offered free of charge. To date, this course has been
offered 15 times, and attended by approximately 35 people per course.
The next scheduled course offering is in May in Charlotte, NC.
MOBILE6 Training: EPA and DOT jointly sponsored 8 MOBILE6 hands-on
training courses across the country in 2002, attended by approximately
25 people each. These courses were open to the public and offered free
of charge. The training materials for these courses are on the MOBILE6
website and can be downloaded at any time. Other training materials
prepared by EPA are also available.
Cooperative Agreement with NARC: EPA and DOT are jointly funding a
cooperative agreement with the National Association of Regional
Councils (NARC) to provide transportation and air quality planning
information to their member organizations and to foster information-
sharing between organizations. In addition to providing web-based
information and peer-to-peer technical support, workshops have been
held specifically for areas experiencing air quality planning
requirements for the first time. Workshops included sessions on the air
quality planning process, best practices for determining conformity,
smart-growth and air quality, using performance measures and project
selection criteria, the implementation of the new 8-hour ozone NAAQS,
and the health effects of PM2.5.
NHI Air Quality Course: EPA and DOT are jointly funding a National
Highway Institute course entitled,'' The Implications of Air Quality
Planning for Transportation''. This course, recently piloted in San
Antonio, is aimed at giving State and local transportation planning
professionals a thorough overview of the air quality planning
requirements of the Clean Air Act. The course also provides information
on the State and local air quality planning processes that should be
considered and integrated into the transportation planning process. The
course includes modules on air quality standards, stationary and mobile
source emissions, emissions inventories, SIP development,
transportation and general conformity, transportation control measures,
and the linkages between statewide and metropolitan planning and air
quality planning.
NHI Estimating Regional Mobile Source Emissions Course: EPA
participated on the technical review committee for a new NHI course
called Estimating Regional Mobile Source Emissions. The class is aimed
at State and local transportation and air quality staff and will cover
all aspects of estimating motor vehicle emissions at the local and
regional level for SIP and conformity purposes. It is the first course
to cover comprehensively all aspects of motor vehicle inventory
preparation, from travel demand modeling to emission factor modeling,
and should prove useful for staff in new nonattainment areas who have
never had to do motor vehicle inventories before.
NHI CMAQ Course: EPA and DOT are jointly funding a NHI course on
the Congestion Mitigation and Air Quality Improvement (CMAQ) program.
The CMAQ program is important to nonattainment areas because its
purpose is to fund air quality beneficial projects that may assist them
in demonstrating conformity.
For the two previous significant conformity rulemakings, the
initial 1993 and the 1997 amendments, EPA conformity staff held a
``roadshow'' to explain the requirements of the rulemaking. Each Region
invited the transportation and air quality agencies in their
jurisdiction for these presentations and in some cases, these sessions
were attended by well over 100 people. EPA is considering holding a
similar roadshow to explain the conformity requirements to newly
designated areas.
Superfund
Question 64a. Administrator Whitman, you were quoted as saying at a
January 31, 2003, appearance that ``the Administration has taken no
position on reinstatement of the [Superfund] tax.'' Nevertheless, the
President's fiscal year 04 budget proposal would replace funds
typically generated by the Superfund fees with $1.1 billion from the
general treasury.
Does the Administration continue to oppose reinstatement of the
Superfund fees?
Response. This Administration is not in favor of creating new
taxes. The Superfund tax has now been expired for 7 years and Superfund
has continued to operate effectively. EPA continues to aggressively
pursue responsible parties to conduct response actions at Superfund
sites. It is expected that polluters will continue to pay for
approximately 70 percent of the work at new Superfund construction
starts.
Question 64b. If so, am I correct that an increasing amount of
money would need to come from the general treasury to preserve the
level of funding of the Superfund program?
Response. congressional appropriations that fund the Superfund
program have historically included General Revenue. Since the tax
expired in 1995, Superfund has had to rely more heavily on general
revenues to finance the cost of cleanup. It is likely that the trend
will continue in the future.
Question 64c. In light of the competing budgetary priorities, what
assurances can you provide that Superfund will receive adequate funding
from the general treasury in future years to protect public health and
the environment?
Response. EPA cannot presuppose funding from Congress. I can assure
you, however, that we will work with our Appropriations Committee to
help secure appropriate funding in future years. Superfund remains a
high environmental priority of this Administration.
Question 65. You testified that one reason the pace of Superfund
cleanups has dramatically slowed is that the remaining sites are
``larger and more complex than sites we have had to deal with in the
past.'' Given the increased complexity, does the program require
increased resources to meet these needs?
Response. The Superfund program is facing a need for additional
resources to fund the construction phase of cleanup projects. For this
reason, the President's budget requests an additional $150 million for
Superfund remedial action activities. These resources will allow the
Agency to begin work on 10 to 15 additional new construction projects
during fiscal year 2004. and to have a similar number of additional
completions in the following 2 years. EPA also anticipates that
construction completion accomplishments will increase by approximately
5 per year in fiscal year 2005 and fiscal year 2006 for a 2-year total
of 90 (45 per year).
Question 66. In a 2001 report to Congress by Resources for the
Future, entitled Superfund's Future: What Will It Cost?, the Superfund
program was estimated to need $1.748 billion in fiscal year 04, which
is $358 million more than the President's fiscal year 04 proposal.
Based on your testimony that increasing remedial action funding by $150
million enables EPA to start 10-15 new construction projects, am I
correct that funding Superfund at $1.748 billion would enable EPA to
start construction or otherwise accelerate cleanup at 24-35 additional
communities across the nation?
Response. The RFF study was designed to estimate the costs of the
Superfund program between fiscal year 2000 and fiscal year 2009 based
on fiscal year 1999 data and assumptions. The projections are not
designed to, nor should they be used to, to make funding decisions.
The $150 million requested for long-term cleanup represents a 65
percent increase over last year. The request is reasonable given the
need for resources in other program areas and other national
priorities. EPA will continue to evaluate resource needs for Superfund
construction and request appropriate funding levels in subsequent
years.
Enforcement
Question 67. Could you please provide me with the number of actual
enforcement personnel employed by EPA in fiscal years 2001, 2002, 2003,
and the requested level in fiscal year 2004. The data should indicated
how many persons employed by the Office of Regulatory Enforcement and
the Office of Compliance Assurance.
Response. The employee levels for the Office of Enforcement and
Compliance Assurance, the Office of Regulatory Enforcement (ORE), and
the Office of Compliance (OC) are provided below. OECA's numbers
include all headquarters, field, and regional personnel. ORE and OC are
two of OECA's headquarters offices and these numbers are separately
identified as well as being included in the total OECA numbers.
----------------------------------------------------------------------------------------------------------------
Fiscal Year
Fiscal Year Fiscal Year 2003 Fiscal Year
Program 2001 FTE 2002 FTE Projected 2004
Actuals Actuals FTE Request***
Actuals**
----------------------------------------------------------------------------------------------------------------
Office of Enforcement & Compliance Assurance (OECA)......... 3,408.4 3,371.4 3,360.0 3,411.3
Office of Regulatory Enforcement*........................... 146 144 159 127.8
Office of Compliance*....................................... 148 153 149 135.5
----------------------------------------------------------------------------------------------------------------
*The on-boards and FTE identified for ORE and OC are also included in the total numbers for OECA.
**Fiscal year 2003 congressional appropriations report language directed EPA to provide $15.2 million to fund
additional FTE in the compliance monitoring, civil enforcement, and compliance assistance programs. The
earmark funded an increase of 154 FTE for OECA. OECA received the increased FTE in late March 2003 and is in
the process of aggressively hiring up to the authorized fiscal year 2003 FTE ceiling.
***The fiscal year 2004 request includes an increase of 100 FTE above the fiscal year 2003 request. The
additional FTE will be used for compliance monitoring and civil enforcement activities. These resources will
be distributed to individual headquarters and regional offices during the Agency's fiscal year 2004 operating
plan process.
Question 68. EPA's report on the fiscal year 2002 Enforcement and
Compliance Program raises concerns about the Administration's
commitment to enforcing the nation's environmental statutes. Could you
please explain why the data reveals substantial declines over the last
5 years in the following ten categories: EPA inspections; Civil
referrals to the Department of Justice; Civil Judicial Settlements;
Judicial Penalties; Value of supplemental environmental projects;
Administrative compliance orders; Estimated pounds of pollutants to be
reduced; Pounds of contaminates soil to be treated; Superfund private
party commitments; and Superfund orphan share compensation offers.
Response. EPA's fiscal year 2002 accomplishments reflect a vigorous
and effective enforcement program, capturing nearly $4 million in
injunctive relief through settlements that will go toward the cleanup
of polluted sites and protection against further environmental harm;
achieving a 26 percent increase in the number of companies self-
disclosing environmental violations; treating 2.8 billion gallons of
contaminated groundwater, bringing drinking water systems that serve
over three million Americans into compliance; and providing assistance
to more than one-half million businesses and individuals to help them
comply with environmental laws.
Along with normal fluctuations in numbers over time, there have
also been changes in the focus of the program that has led to changes
in individual output numbers, but not to the Agency's continued
commitment to enforcing our nation's environmental laws. Specifically,
with regard to the areas mentioned above:
inspections
Fiscal year 1998 was the most active inspection year in
EPA history. While the number has declined since then, using 1998 as a
baseline is not representative.
In fiscal year 2002, the policy defining and directing
Clean Air Act (CAA) stationary source and CFC inspections changed, and
regions/States were credited differently, to provide a one for one
count for a Full Compliance Evaluation per facility, which is different
from earlier practice where a facility inspection would provide credit
for each program covered by an inspection per facility.
Over the past few years, the Agency has been shifting its
focus away from inspecting large numbers of regulated entities--many of
which are small businesses with equally small potential to harm to the
environment and public health--to instead focus on more complex cases
with bigger environmental impacts.
civil referrals
The gradual drop in the number of cases referred to the
Department of Justice over the past 5 years is the result of the
Agency's increasing focus on larger, more complex cases. This is
evidenced by looking at the value of injunctive relief obtained by the
Department of Justice and the Agency over the same period: the highest
amounts were collected in fiscal year 2001 and fiscal year 2002.
Injunctive relief is often a crucial part of multi-media and multi-
facility cases, to correct the identified environmental violations and
achieve meaningful results. This demonstrates that in this case, fewer
civil referrals does not equate to fewer environmental results.
administrative compliance orders
The gradual decline in these numbers is also the result
of the Agency's increased focus on larger, more complex cases.
fiscal year 2000 stands out as an anomaly. In that year,
EPA first enforced a new requirement for the submission of ``Consumer
Confidence Reports'' under the Safe Drinking Water Act.
Civil Judicial Settlements, Penalties, Value of SEPs, and Estimated
Pounds of Pollutants Reduced
For the most part, each of these categories of numbers is
cyclical and there is no pattern to be discerned from the last 5 years.
For years during which large, complex cases are settled, the numbers
can shoot way up, and when the opposite is true, the numbers are down.
For pounds of pollutants reduced, fiscal year 1999 was
anomalous because that was the year in which EPA reached settlement
with seven major diesel engine manufacturers to resolve claims that
they installed illegal computer software on heavy duty diesel engines.
The action resulted in the reduction of millions of tons of NOx
emissions from the nation's mobile sources.
In the value of SEPs category, SEPs must be voluntarily
undertaken by companies and must meet conditions to be approved as part
of an enforcement settlement. The Agency cannot force companies to
undertake these projects. 1999 was an anomalous year for the value of
SEPs as a result of very large settlements, including FMC Corp.
(responsible for $63 million in SEPs) and the aforementioned diesel
settlements with seven diesel engine manufacturers ($109.5 million).
There are three categories for which EPA started tracking
data in fiscal year 2002 and which are therefore not comparable over
the past 5 years: gallons of contaminated groundwater to be treated;
acres of wetland to be restored; and individuals served by newly
compliant drinking water systems. As you can see from the fiscal year
2002 numbers, the Agency has had success in all three areas.
Fiscal year 2003 will be a high-water mark in each of
these categories thanks to a number of very large settlements announced
within the last few months. These settlements are the result of complex
negotiations spanning a number of years (again demonstrating the
cyclical nature of this data). The following are just a few of the
largest settlements:
Colonial Pipeline--To resolve charges that the company violated the
Clean Water Act on seven occasions by spilling 1.45 million gallons of
oil from its 5,500 mile pipeline in five States, the company will pay a
$34 million civil penalty, the largest penalty paid by a company in EPA
history. Colonial will also provide injunctive relief valued at
approximately $30 million to upgrade environmental protection on the
pipeline and prevent future spills.
Alcoa--Pursuant to a settlement resolving Alcoa's violations of the
New Source Review (NSR) provisions of the Clean Air Act, the company
will likely spend over $330 million to install state-of-the-art
pollution controls to eliminate the vast majority of sulfur dioxide and
nitrogen oxide emissions from the power plant at Alcoa's aluminum
production facility in Rockdale, Texas. The combined effect of the
pollution controls mandated by the settlement will be to reduce the
company's emissions of sulfur dioxide (SO2) by 52,000 tons
and nitrogen oxides (NOx) by 15,000 tons each year. Alcoa will also pay
a civil penalty of $1.5 million and spend at least $2.5 million on two
additional projects that will partially offset the impact of past
emissions.
Virginia Electric Power Company (VEPCO)--Pursuant to a settlement
resolving VEPCO's NSR violations, the company will spend $1.2 billion
between now and 2013 to eliminate 237,000 tons of sulfur dioxide and
nitrogen oxides emissions each year from eight coal-fired electricity
generating plants in Virginia and West Virginia. VEPCO agreed to pay a
$5.3 million civil penalty and spend at least $13.9 million for
projects in each of the five States that participated in the case and
its settlement to offset the impact of past emissions.
Wisconsin Electric Power Company (WEPCO)--Worth $600 million, this
settlement will resolve WEPCO's NSR violations by eliminating more than
105,000 tons of harmful air pollutants annually. The company will spend
the $600 million to reduce 72,300 tons per year of SO2 and
32,600 tons per year of NOx and improve its control of particulate
matter (PM) from each of the plants included in the settlement. The
company also will pay a $3.2 million civil penalty and spend at least
$20 million to finance an environmental mitigation project
demonstrating a new technology to significantly reduce mercury
emissions from coal-fired power plants.
Archer Daniels Midland (ADM)--This settlement will reduce 63,000
tons of air pollution a year from fifty-two plants in 16 States. Among
other things, ADM will install state-of-the art controls on a large
number of units, shut down some of the oldest, dirtiest units, and take
restrictive emission limits on others. EPA estimates that ADM will
spend $340 million over a 10-year period to implement the entire
injunctive relief package, which includes $213 million on capital
improvements such as air pollution control equipment. ADM will also
fund extensive environmental audits at all facilities, continuous
emission monitoring, operation and maintenance, and an environmental
management system that will assist the company and regulators in
tracking compliance with the consent decree. In addition, ADM will pay
a civil penalty of $4.6 million that will be shared with the co-
plaintiffs, and will spend $6.3 million on supplemental environmental
projects.
superfund private party commitments
In fiscal year 2002, EPA secured private party
commitments for cleanup and cost recovery that exceeded $627 million.
This dollar value is lower than in the two prior fiscal years; however,
this value varies from year to year based on the sites that are in the
Superfund pipeline at any given time. Some years there are high dollar
value settlements at sites and other years low dollar value
settlements. For instance over the past 10 years, the dollar value
varied from a low in fiscal year 1997 of $609 million to a high of over
$1.7 billion in fiscal year 2001.
In the past 2 years, there were a small number of cases
with high dollar values that increased the dollar value significantly.
In fiscal year 2000, the Agency secured private party commitment for
cleanup at G.E. Housatonic River site in Massachusetts for $700
million; in fiscal year 2001 at CIBA-Geigy Corporationsite in New
Jersey for $90 million and at Iron Mountain Mine in California for
approximately $822 million. In addition in fiscal year 2001, the Agency
secured private party commitments for cost recovery at Stringfellow in
California for over $99.4 million. In fact the number of settlements
for cleanup increased slightly in fiscal year 2002 over fiscal year
2001 even though the total dollar value for cleanup significantly
decreased.
superfund orphan share compensation offers
EPA has met its GPRA target of making orphan share
compensation offers at 100 percent of eligible work sites for each year
the reform has been implemented. The number of orphan share
compensation offers has varied from year to year, depending on the
number of negotiations started that year, and how many of those
negotiations pertain to sites that are eligible for the reform (e.g.,
if a site does not have an orphan share, PRPs performing work at that
site are not eligible for orphan share compensation). In addition, the
amount of orphan share compensation has varied from year to year,
depending on the number of offers made and the dollar value of each
settlement.
EPSCOR
Question 69. In formulating the Agency's budgetary and programmatic
plan for the EPSCoR program, how much consultation with EPSCoR States
did EPA do to assess research infrastructure needs?
Response. After careful consideration, EPA has decided to follow
the lead of the National Science Foundation and the Department of
Agriculture to fund proposals from EPSCoR States that are in response
to EPA Science to Achieve Results (STAR) solicitations, pass peer
review, and fall near the cutoff for funding by the reviewing program.
This mechanism operates internally within EPA and does not require any
action on the part of the applicant. The goal of the EPA EPSCoR program
is to fund high quality research while allowing investigators to gain
experience in the competitive grants process and to become familiar
with the EPA STAR program. EPA plans to use its limited EPSCoR
resources through the STAR process and will no longer issue separate
EPSCoR solicitations.
This decision was made with input from members of the EPSCoR
community, including several State EPSCoR directors, and after
considering a number of options. In the end, EPA selected this approach
as the most effective and efficient method for EPA to partner with
EPSCoR States to enhance the quality and competitive capability of
their environmental research.
______
Responses of Administrator Christine Todd Whitman to Additional
Questions from Senator Baucus
ASARCO
Question 1. Describe what benefits will accrue to Environmental
Protection Agency (EPA) as a result of the recent ASARCO settlement,
including what sites EPA estimates it will be able to clean-up with
funds from that settlement and how that estimate compares with EPA's
estimates of the total cost to clean-up all of ASARCO's sites nation-
wide. I am particularly interested in what sites in Montana will be
addressed with these settlement funds--it's my understanding that
clean-up of the East Helena site alone will cost more than $100
million.
Response. The settlement with Asarco, approved on February 3, 2003,
by the U.S. District Court for the District of Arizona, resolved claims
filed by the United States under the Federal Debt Collection Procedures
Act and the Federal Priorities Statute relating to Asarco's proposed
sale of its majority stock interest in Southern Peru Copper Corporation
to its immediate parent company, Americas Mining Corporation (``AMC'').
Under the consent decree, Asarco and AMC were allowed to complete the
transaction but AMC payed a significantly higher price than originally
proposed. In addition, the consent decree required Asarco to create an
independent Environmental Trust funded by a $100 million note from AMC,
payable with interest over 8 years and guaranteed by AMC's parent
company, Grupo Mexico S.A. The consent decree establishes a process for
the development of annual plans, subject to approval by the United
States, to allocate money in the Environmental Trust to pay the costs
of work at certain sites where Asarco has signed a consent decree,
administrative order on consent, or other legal commitment with the
United States or a State, or has been identified as a potentially
responsible party under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), the Resource Conservation and
Recovery Act (RCRA) or other Federal or State law.
It is important to note that because the purpose of this litigation
was not to address ASARCO's environmental liabilities directly but to
ensure that ASARCO received appropriate value from the sale of this
important asset, this settlement does not relieve Asarco of any legal
obligation it may have to perform clean-up work at any site, under
either Federal or State law. In fact, the settlement works to ensure
that substantial funds will be available to fulfill Asarco's
environmental cleanup obligations, despite Asarco's current financial
difficulties. The components laid out in the Consent Decree create the
opportunity for a stronger and more stable company to more effectively
address current and future environmental liabilities at sites across
the country and deal with its significant financial problems.
The Environmental Trust will be funded by a note from AMC,
guaranteed by Grupo Mexico that will provide more than $126 million
(including interest) over the next 8 years. In return for this
dedicated cleanup fund, the United States will forego collection of
some EPA past costs and penalties and will cap Asarco's Federal cleanup
responsibilities for the next 3 years. However, the United States
retains all claims it may have to require Asarco to perform or pay for
future clean-ups. Moreover, the settlement does not affect any
potential environmental claims by States against the company.
Nonetheless, States with major Asarco sites--including Montana--were
consulted concerning the settlement before it was signed and have been
and will continue to be consulted on the use and distribution of the
Environmental Trust funds.
We recognize that the $126 million available from the Environmental
Trust under this settlement will be insufficient to pay for all of
Asarco's environmental liabilities. The hard truth is that Asarco is in
real financial distress and, unless the market conditions that effect
its performance improve substantially, will be incapable of paying all
its environmental debts and Asarco may not survive as a going concern.
Nonetheless, the aggressive enforcement actions taken by the
Environmental Protection Agency and the Department of Justice and the
resulting favorable settlement substantially increase the likelihood
that Asarco will fund a major part of its cleanup obligations.
To establish the budget for 2003, EPA worked closely with other
impacted parties such as States, Tribes, the Department of the
Interior, the U.S. Department of Agriculture, and ASARCO to maximize
the efficiency of response activities at the ASARCO sites. EPA Regions
worked closely with their State and other Federal Agency counterparts
to prioritize sites and submitted a Regional / State list of sites
ranked by risk posed to human health and the environment to EPA
Headquarters and the Department of Justice (DOJ). Other factors, such
as the ongoing operation of water treatment plants and work needed to
stabilize sites were also considered in setting the priorities.
EPA and DOJ have proposed that the Environmental Trust provide
funds to 25 of the highest priority sites this year. This included
funding for 10 EPA-lead sites, 13 State-lead and 2 Department of
Agriculture lead sites. The proposal allocated funds to 12 of 17 States
with Asarco sites.
The East Helena Site in Montana was identified as the highest
priority by EPA's Region 8 office in Denver and proposed that the
Environmental Trust allocate more than $1 Million this year to address
human health and environmental concerns at this site. This is about 8
percent of the total funds available from the ASARCO Environmental
Trust Fund for this year. EPA realizes that significant funds are
needed to address the East Helena site, but as the funding needs exceed
the amount of funds available from ASARCO's Environmental Trust,
funding will need to be spread out over a number of years at the East
Helena site as well as other ASARCO sites across the country.
Question 1a. Please also describe how this settlement will impact
cleanup activities that require funding that ASARCO would have
provided, but which now must come from somewhere else as a result of
the settlement, including from State and local governments, the Federal
taxpayer, and what may remain of the Superfund Trust Fund.
Response. As you are aware, the Superfund program currently uses an
existing EPA National Risk-Based Priority Panel to evaluate funding
decisions at Fund lead sites across the country. Given that all of the
Asarco sites could not be funded at the requested levels, we employed
the Priority Panel's criteria to assist us in making funding decisions
from the Asarco Environmental Trust Fund (Environmental Trust). The
sites with the greatest human health risks or with the greatest site
stability issues and sites with ongoing activities such as operation
and maintenance of water treatment plants and operation and maintenance
of remedies in-place will receive some level of funding from the
Environmental Trust. Some sites not funded under these criteria will be
addressed by other PRPs present at these sites or the Superfund and
other resources (State funds, or other financial resources such as
bonds or trusts).
Some sites being funded by the Environmental Trust have been
submitted to the National Priority Panel and are already receiving
funds from the Superfund Trust Fund. Some ASARCO sites are currently
being considered for funds from Superfund funding while other sites may
be considered for Superfund funding in the future.
Question 2. Ms. Whitman, you indicated in your response to a
question posed by the Chairman, Senator Inhofe, that you can't think of
a single instance where a viable, responsible party has not been held
liable for its share of the costs of cleaning up contaminated sites,
and that this fact demonstrates the Administration's commitment to the
``polluter pays'' principal, a cornerstone of the Superfund program.
How does your response to my first question about the ASARCO settlement
color the response you gave to Senator Inhofe? I pose this question,
because it appears to me that in the case of ASARCO, a viable
responsible party was, in a sense, let off the hook for the full cost
of clean-up.
Response. The settlement with ASARCO, approved on February 3, 2003
by the U.S. District Court for the District of Arizona, resolved claims
filed by the United States under the Federal Debt Collection Procedures
Act and the Federal Priorities Statute relating to ASARCO's proposed
sale of its majority stock interest in Southern Peru Copper Corporation
(SPCC) to its immediate parent company, Americas Mining Corporation
(``AMC''). Under the consent decree, ASARCO and AMC were allowed to
complete the transaction but AMC payed a significantly higher price
than originally proposed. In addition, the consent decree required
ASARCO to create an independent Environmental Trust funded by a $100
million note from AMC, payable with interest over 8 years and
guaranteed by AMC's parent company, Grupo Mexico S.A. The consent
decree establishes a process for the development of annual plans,
subject to approval by the United States, to allocate money in the
Environmental Trust to pay the costs of work at certain sites where
ASARCO has signed a consent decree, administrative order on consent, or
other legal commitment with the United States or a State, or has been
identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), the
Resource Conservation and Recovery Act (RCRA) or other Federal or State
law.
It is important to note that this settlement does not relieve
ASARCO of any legal obligation it may have to perform clean-up work at
any site, under either Federal or State law. In fact, the settlement
works to ensure that substantial funds will be available to fulfill
ASARCO's environmental clean-up obligations, despite ASARCO's current
financial difficulties.
A short history of events leading up to the settlement may help put
the settlement terms in perspective. By 2002, it had become clear that,
due to low prices for ASARCO's primary product, copper, and the
company's heavy debt burden, ASARCO was in financial distress. During
2002, claiming inability to pay for the work, the company stopped
paying for certain clean-up work that was required under Federal
consent decrees or orders. In July 2002, ASARCO proposed to sell its
largest asset, a majority stock interest in SPCC, to AMC. In August
2002, at the request of the Environmental Protection Agency, the
Department of Justice took the aggressive step of filing suit in the
Western District of Washington (later transferred to the District Court
in Phoenix, AZ) to block the stock sale, alleging that the proposed
sale price was less than ``reasonably equivalent value'' and would
illegally reduce ASARCO's ability to fulfill its environmental
obligations to the United States.
Once that sale was temporarily blocked, the United States began
negotiations with ASARCO and its parent companies to assure there was a
substantial increase in the consideration paid for the stock by AMC and
to obtain adequate assurances that important clean-up work would be
performed, despite ASARCO's precarious financial situation. After
extensive negotiations, including many with the AMC's parent company,
Grupo Mexico S.A. of Mexico City, the United States was able to meet
both goals. First, the United States was able to ensure that more money
goes to ASARCO from the parent company to assist ASARCO in continuing
to survive as a viable entity, thus protecting jobs and preserving
ASARCO's ability to continue performing clean-up work. Second, the
United States was able to have a significant part of the increased
price paid by the parent company dedicated to a secure trust fund for
environmental clean-up, with a financial guarantee by the parent
company (which was not involved in the litigation and was not liable to
the United States for clean-up costs).
As noted, the Environmental Trust will be funded by a note from
AMC, guaranteed by Grupo Mexico that will provide more than $126
million (including interest) over the next 8 years. In return for this
dedicated clean-up fund, the United States will forego collection of
some EPA past costs and penalties and will cap ASARCO's Federal cleanup
responsibilities for the next 3 years. However, the United States
retains all claims it may have to require ASARCO to perform or pay for
future clean-ups. Moreover, the settlement does not affect any
potential environmental claims by States against the company.
Nonetheless, States with major ASARCO sites--including Montana--were
consulted concerning the settlement before it was signed and have been
and will continue to be consulted on the use and distribution of the
Environmental Trust funds.
We recognize that the $126 million available from the Environmental
Trust under this settlement will be insufficient to pay for all of
ASARCO's environmental liabilities. The hard truth is that ASARCO is in
real financial distress and, unless the market conditions that effect
its performance improve substantially, will be incapable of paying all
its environmental debts and ASARCO may not survive as a going concern.
Nonetheless, the aggressive enforcement actions taken by the
Environmental Protection Agency and the Department of Justice and the
resulting favorable settlement substantially increase the likelihood
that ASARCO will fund a major part of its clean-up obligations. While
other legal alternatives to this settlement were available, the EPA
determined that secure funds for environmental response actions were
the primary objective and the other options would be less productive.
Superfund
Question 3. In general, how does the EPA and the Administration
plan to maintain the integrity of the Superfund trust fund over the
long-term, without a means to replenish the Superfund trust fund?
Response. The Superfund Trust Fund is maintained by revenues from
several sources including annual appropriations from General Revenue,
interest on the ``unexpended'' balance remaining in the Trust Fund, and
collections from enforcement actions with responsible parties:
Resources appropriated by Congress for the Superfund
program from General Revenues are placed in the Superfund Trust Fund
along with funds from other sources. Funds appropriated for Superfund
remain in the Trust Fund until expended.
Due to the historical lag time in government outlays or
actual payment of bills, unexpended funds will remain in the Trust Fund
for many years. The unexpended balance projected in the fiscal year
2004 President's Budget for the end of fiscal year 2003 exceeds $2.9
billion. Interest accrues on the unexpended balance revenue for the
Trust Fund. Interest on the unexpended principal balance in the Trust
Fund has ranged from $110 to $350 million annually for the past 10
years.
Responsible Parties continue to provide funds to the
Trust Fund through cost recovery payments, fines and penalties.
Question 3a. Does the EPA have a long-term plan to replenish the
Superfund trust fund that is faithful to the principal that the
polluter should pay?
Response. Viable polluters cleanup or pay for the cleanup of their
sites. This accounts for approximately 70 percent of total Superfund
site cleanups. EPA cleans up ``orphan sites'' where there is no viable
polluter who can be forced to do the work or pay. If EPA cleans up a
site when a polluter refuses to, then EPA sues the polluter for triple
the cost of cleanup. Funding for EPA's Superfund program is provided by
congressional appropriation. The Trust Fund is replenished from several
sources. Congress appropriates General Revenues to the Trust Fund.
Also, the Trust Fund receives interest revenue on the unexpended
balance and the Trust Fund is the ongoing depository of funds derived
from responsible parties. Each year, the Trust Fund is credited with
revenue generated from (1) enforcement actions which recover prior
Trust Fund expenditures (i.e., ``cost recoveries'') ($181 to $320
million annually for the past 10 years), (2) fines and penalties paid
by responsible parties ($0.6 to $5.0 million annually for the past 10
years), and (3) the amount of corporate environmental taxes collected
by the Treasury ($2.6 to $320 million annually after the taxing
authority expired in fiscal year 1996). In addition to these sources of
revenue, the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, (CERCLA) (Sec. 122(b)(3)) authorizes the
Treasury to maintain a separate account in the Trust Fund for amounts
collected through settlements and retained by EPA to carry out such
settlement agreements (``Special Accounts''). By the end of fiscal year
2002, EPA had created 255 Special Accounts, collected over $1 billion
for cleanup work from responsible parties, accrued over $158 million in
site-specific interest, and disbursed, obligated or promised almost
$600 million for cleanup work.
Question 3b. If the Superfund Trust Fund completely dries up, how
will the EPA ensure that contaminated sites are cleaned-up, in a
reasonable amount of time, without letting that burden fall on the
average taxpayer or the local community?
Response. As a technical matter, the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, provides that the
Trust Fund shall receive such amounts appropriated or transferred for
the purposes provided in the statute. As a result, each year, Congress
appropriates resources from the general fund into the Trust Fund. As
long as the Congress continues to appropriate funds to the Trust Fund,
it will not ``dry up''.
Approximately 5 percent of Superfund's annual appropriation is
allocated to the enforcement function. EPA, using these resources,
achieved 71 percent of new remedial action starts at non-Federal
facility Superfund sites through private parties during fiscal year
2002. Looking at the enforcement program since the inception of
Superfund, EPA has achieved more than $8 in private party cleanup
commitments and cost recovery, for every $1 spent on Superfund civil
enforcement.
EPA has implemented the Superfund program to identify immediate
risk and take appropriate actions, assess sites and plan response
actions where such immediate actions are not required, and manage
ongoing cleanups with the goal of completing such sites as soon as
possible. Where it is unrealistic to complete site cleanups in the year
in which they are initiated, EPA has effectively and efficiently
managed these projects to avoid shut-downs and restarts, and plans and
schedules very large site projects (i.e., mega sites) based on
realistic financing and contracting capacities. EPA believes that this
methodical process best supports its responsibility to protect public
health, welfare and the environment.
Question 3c. How does the President's fiscal year 2004 budget
request bear on this issue?
Response. The President's fiscal year 2004 budget increases funding
for cleanup construction by $150 million (a 65 percent increase over
fiscal year 2003), which will allow the Agency to begin construction at
an additional 10 to 15 sites. The President's fiscal year 2004 budget
request reflects the funding level needed to maintain program progress
in protecting human health and the environment. The request proposes
apportioning the funding from the Trust Fund ($290 million) and from
General Revenue ($1,100 million). EPA will continue to aggressively
pursue viable responsible parties to conduct cleanups at Superfund
sites consistent with the polluter pays principle, and ensure that
funds made available to EPA through congressional appropriation are
used to support activities at sites where responsible parties have not
been identified or are not viable.
Libby, Montana
Question 4. Ms. Whitman, recent press reports have indicated that
EPA either did not know of, or ignored, studies that indicated
disturbing Zonolite could release high concentrations of asbestos
fibers. Other press reports have indicated that there is a link between
EPA's actions in Libby to remove contaminated insulation and other fill
material in Libby homes, and EPA's failures to warn the public about
any risks associated with Zonolite insulation.
Therefore, I am interested in any information the EPA may have
regarding the relationship between the removal of contaminated
materials from homes in Libby, and EPA's scientific understanding of
the health risks posed by Zonolite insulation, or other vermiculite
insulation manufactured from ore mined in Libby, Montana.
Response. The Agency for Toxic Substances and Disease Registry
(ATSDR) identified many different routes of asbestos exposure for the
residents of Libby. Insulation was one of the 16 pathways ATSDR
considered in its study. The ATSDR report found that four factors were
highly associated with the likelihood of having asbestos-related health
impacts, including working for the mine/processor, living in the same
house with a worker, playing on vermiculite or waste piles, and having
multiple exposure pathways. The study did not show that insulation, by
itself, could be linked with the health impacts found in Libby.
Question 5. Please tell me why the Agency has decided to leave
contaminated insulation in many homes in Libby, rather than remove it?
Response. EPA is working to remove contaminated vermiculite
insulation from many of the homes, businesses and public buildings in
Libby, Montana. The Agency is taking this unusual action due to the
unique nature of public health impacts exhibited in Libby, the
historical and widespread exposures by multiple pathways, the presence
of the mine and processor, and the unique fact that asbestos-
contaminated materials that came to be in Libby homes and yards may not
have been sold, packaged, labeled, inspected or warranted as a
``product.''
It is important to note that EPA did not decide to remove all
contaminated insulation from every home in Libby. For instance, in some
homes there is no access to the attic space for residents, and the
insulation is well-contained in sealed areas, which do not exhibit any
signs of deterioration or release of material. Similarly, contaminated
insulation in the wall spaces in many homes will probably remain in
place, when the walls are clearly intact and do not suffer obvious
signs of deterioration or release. Under such conditions, where the
likelihood of release or exposure is low, EPA may find that removal of
the material is not warranted.
Question 6. As you are aware, Ms. Whitman, there remains a lot of
work to be done in Libby to ensure that the community finally gets the
clean bill of health it so desperately needs. Working with Libby and
our Federal partners to see that the community gets all the needed
resources to achieve a clean bill of health remains my highest priority
as a Montanan and a Member of Congress. Please outline for me how your
agency plans to maintain momentum and focus in Libby, and what
resources you understand will be available to continue clean-up
activities in Libby over the next year.
Response. The Libby asbestos site has been, and will likely remain,
a top priority cleanup for EPA. To date, EPA has spent in excess of $75
million in Libby to address contaminated properties and to evaluate the
extent of human health impacts in the community. EPA is on track to
spend as much as $17 million in fiscal year 2003 to continue these
projects.
Question 6a. Please also indicate whether these resources will
allow you to meet established deadlines and targets for specific clean-
up activities.
Response. The funding and personnel which EPA has devoted to the
Libby cleanup have allowed us to maintain our momentum in identifying
and addressing contaminated residential properties, businesses and
public buildings associated with the Libby site. Our work plans include
completing cleanups at more than 200 residential properties and
businesses this year alone. EPA expects to maintain this pace of site
cleanup. However, the Agency cannot predict whether we will discover
additional contaminated properties which would extend the timeframe of
our cleanup.
Question 6b. If for any reason the EPA is falling behind on its
commitments in Libby, for whatever reason, I want to know why and how I
can help your agency get back on track.
Response. Thank you for your offer of assistance with this project.
EPA has accelerated the pace of site cleanups and is on track to
complete 200 properties per year. The Agency expects to maintain this
pace of work until we have completed addressing all contaminated
properties in Libby.
Question 7. During a hearing I held in June 2002, I challenged Ms.
Horinko to leave no stone unturned as we seek to provide opportunities
to Libby, Montana to recover from the devastating effects of the
asbestos contamination tragedy, and to specifically seek opportunities
to support the full recovery of the community. What resources does EPA
plan to make available to the community of Libby to assist in economic
development?
Response. The Environmental Protection Agency does not have
authority toward providing direct economic assistance. EPA's
contribution is to see that Libby is cleaned of asbestos contamination
such that properties can be returned to suitable use and the population
is protected, that is, to provide any economic recovery a safe
foundation to buildupon.
In addition, EPA has worked at length with the community to explore
options for economic redevelopment, land reuse, and worker job
retraining in order to assist with the economic hardships faced by
residents of Libby. In support of these efforts, the Agency has pursued
the Superfund Job Training initiative, local contract resources and
hiring, and the potential for economic redevelopment pilots to assist
in bringing work and businesses to the local area.
EPA also sponsored a workshop on economic revitalization for South
Lincoln County. The workshop was held on April 24-26, 2003, and
included participants from Lincoln County, the Town of Troy, the city
of Libby, local economic redevelopment agencies and staff from Senator
Baucus' office. The focus of this workshop was to facilitate
partnerships among local, State, Federal and private agencies with
economic revitalization interest, expertise and/or resources in order
to foster economic development efforts. The workshop included Stimson
Lumber Property revitalization, the Asbestos Research Center,
recreational uses (aquatic center, biking, hiking, parks), cultural
resources, and telecommunications. The outcome of these breakout
sessions were implementation strategies for the specific revitalization
goals. In addition to EPA, many Federal agencies which can provide
assistance toward the revitalization goals participated in the
workshop. The workshop was well received by the community, and will
provide a starting point for local leaders to pursue economic
revitalization.
Question 7a. As you may recall, I discussed with Ms. Horinko, and
my staff has had conversations with her office, about leveraging
Brownfield funds for this purpose. Where are we on this initiative?
Response. Although sites on the National Priorities List such as
Libby are not eligible for EPA brownfields grants, EPA has been working
closely with the communities to foster economic revitalization in other
ways. The workshop held on April 24-26 is an example of how the
brownfields model uses partnerships, incentives and technical
assistance to assist communities in reaching their revitalization
goals. Other Federal agencies may be able to offer more direct
assistance, such as through HUD's Community Development Block Grants
Program.
Question 8. Please discuss EPA's understanding of the differences
between tremolite asbestos and chrysotile asbestos in terms of the
relative toxicity of each form of asbestos, and in terms of the unique
health risks posed by tremolite asbestos as compared to chrysotile
asbestos.
Response. The differences between health risks posed by various
forms of asbestos are important to EPA. This includes the potential for
differences between chrysotile asbestos (from the serpentine family)
and tremolite asbestos (one of the forms from the amphibole family).
Fundamentally, mineralogical type, as well as fiber size, may influence
the toxicity of asbestos fibers (e.g., data suggest that longer,
thinner, fibers are generally more toxic than shorter, thicker,
fibers). In EPA's earlier asbestos assessments, sufficient data were
not identified to support different risk estimates for the different
types of asbestos fibers. Consequently, EPA's current IRIS assessment
(completed in 1986) does not provide different cancer risk estimates
for different forms of asbestos. The Agency is currently re-evaluating
the health effects of asbestos. One aspect of the evaluation will
examine the question of different risk estimates for different forms of
asbestos. There will be two different health profiles developed (one
for noncancer and one for cancer). The noncancer profile is expected to
be ready for external review in 1-2 years and the cancer profile will
follow. The total effort is expected to take about 3-4 years.
Both chrysotile and amphibole (including tremolite) fibers have
been found to be causally associated with asbestosis (a non-cancerous
fibrotic disease), pleural plaques, lung cancer, and mesothelioma.
Based on our current knowledge of the literature, no apparent
differences in toxicity of chrysotile versus amphibole (including
tremolite) have been reported for the non-cancer diseases (i.e.,
asbestosis and pleural plaques). Current data do suggest a need to
reexamine quantitative differences in cancer health risks from
chrysotile and amphibole asbestos (including tremolite). In terms of
unique health risks posed by the different forms of asbestos, a number
of researchers have reported that amphibole asbestos is substantially
more potent than chrysotile asbestos in causing mesothelioma, but this
pattern may not hold for induction of lung cancer. Tremolite asbestos
has previously been recognized as a contaminant present in vermiculite
from Libby, MT. Current information indicates that fibers of the
amphibole minerals, winchite and richterite, may also be important
contaminants vermiculite whose toxicity needs evaluation.
Question 8a. Please discuss in detail any studies conducted by,
currently being conducted by, or planned by EPA, or by any other
Federal agency working with EPA, to study tremolite asbestos and/or
``Libby fiber.''
Response. EPA has begun an update of its Integrated Risk
Information System (IRIS) file for asbestos as a result of the
activities occurring in Libby. This includes a complete update of the
scientific literature for asbestos, the carcinogenic and non-
carcinogenic effects, exposure pathways, and risk assessment
methodology. It is normally a three to 5-year process to complete this
type of review. However, EPA is expediting the process as much as
possible. EPA is able to expedite this process, in part, because of
ATSDR's work related to Libby and vermiculite processor sites around
the country, which has added significantly to our understanding of the
unique situation in Libby and has improved our understanding of
asbestos exposure and toxicity. In addition, EPA is regularly
consulting with ATSDR on other initiatives relating to asbestos
sampling, analysis and risk assessment. EPA has also actively met and
communicated with multiple Federal agencies on these issues, including
USGS, MSHA, CDC, NIST, NIOSH, and CPSC. These meetings should ensure
better coordination and understanding of our goals and needs regarding
asbestos and human health issues.
As part of this update and the establishment of differences between
tremolite asbestos and chrysotile asbestos, in May 2001, EPA sponsored
a Public Forum on asbestos minerals. Expert scientists, with years of
research experience, discussed the current literature base for asbestos
exposure, toxicity, and risk assessment. Additionally, EPA hosted a
Peer Consultation meeting on February 25-27, 2003, for a panel of
experts to discuss a revised risk assessment methodology for
distinguishing the risks of exposure to amphibole asbestos fibers
(Libby tremolite asbestos) and serpentine asbestos fibers. This
methodology uses the differences in fiber sizes and shape to
distinguish toxicologic hazards between the fiber types and provides a
differential in the slope factor for risk assessment between the fiber
types.
Question 8b. Please indicate how the presence of tremolite asbestos
and/or ``Libby fiber'' is a factor in the unique situation in Libby,
Montana.
Response. EPA funded ATSDR to review the health statistics for
Libby residents. This review found that the rate of asbestos-related
mortality in the community is 40 times higher than the average in
Montana and 80 times higher than the national average. ATSDR also
conducted an evaluation of the health of Libby residents, providing
chest X-rays, breathing tests, and interviews to characterize the
potential exposures and health of the population. The ATSDR study
concluded that a substantial segment of the population has asbestos-
related scarring, lung abnormalities or impaired breathing. Five
percent of these impacted residents could identify no potential route
of exposure, other than having lived in the Libby Valley.
In addition to these health impacts, Libby differs from other sites
with amphibole asbestos contamination for other reasons. The Libby mine
was the first and, for many years, the world's largest producer of
vermiculite ore. EPA estimates that vermiculite production may have
exceeded 6 million tons during the years that W.R. Grace owned the
mine. This ore was milled and processed in Libby, which means much of
the asbestos was removed from the product, and stayed in Libby. This
waste found its way into homes, school yards, gardens, road beds and
many other places in the community, where people continued to be
exposed for decades.
As a point of clarification, contrary to recent press reports, EPA
has gathered a large amount of information from W.R. Grace and other
sources in order to identify potential risks related to vermiculite
insulation. The Agency has used this data to pursue the cleanup work
underway at Libby and 22 contaminated processor sites which used Libby
ore.
Question 9. Please also discuss EPA's previous experience using a
declaration of a public health emergency as a means to garner specific
health care resources for a community like Libby, if such a declaration
has ever been made.
Response. The EPA has no experience in using the public health
emergency determination under Superfund. The Agency determined that the
multiple sources of potential asbestos exposure in Libby could all be
addressed under the single Superfund response authority, and that there
was no need or reason to use this approach, when the authority for
quick response action was so clear.
Question 9a. Please indicate the process for requesting that a
second declaration be declared in Libby for the separate purpose of
garnering health care resources in Montana.
Response. Declaration of such an emergency by EPA would not
increase available health care resources in Montana. Similarly, EPA is
not aware of other agencies having authorities under which added
resources would become available through the declaration of an
emergency of this type. For example, when the Secretary of Health and
Human Services declared a public health emergency after 9/11, that
declaration provided added flexibility in the use of funds Congress
appropriated specifically for the 9/11 response. The emergency
authorities did not, however, increase the amount of funding available
for response efforts. (In the case of HHS, Congress has authorized but
not funded an account to be used in public health emergencies.)
Question 9b. Please detail any communications EPA has had with
Agency for Toxic Substances and Disease Registry (ATSDR) regarding the
impacts of declaring a public health emergency on the provision of
health care resources to the residents of Libby, Montana.
Response. In the 23-year history of the provision, EPA has never
made a determination that a public health or environmental emergency
exists to invoke CERCLA's exception to the general ``product'' rule,
CERCLA Sec. 104 (a)(1)(4). In the part of the statute establishing
ATSDR, CERCLA separately provides that ATSDR may, ``in cases of public
health emergencies . . . provide medical care and testing to
individuals. . . .'', CERCLA Sec 104 (i)(1)(D).
EPA has worked closely with ATSDR and other parts of the Department
of Health and Human Services (HHS) regarding the health of Libby
residents, and has consulted with them on several occasions regarding
this particular provision of CERCLA. EPA and ATSDR agree that EPA's
decision to invoke the ``emergency'' provision of 104(a)(1)(4) to
support a removal action, would not pre-determine the exercise of other
CERCLA authorities related to public health emergencies under section
104(i)(1)(D) and (E). At the time the Action Memorandum Amendment was
signed in May 2002, ATSDR advised EPA, for reasons unrelated to any
perceived nexus between these two provisions, that the substantial
health screening and monitoring services being provided the residents
of Libby would not be affected by whether EPA invoked the emergency
removal authority. ATSDR already has the necessary authority to conduct
medical monitoring and the range of other activities it has been
undertaking in Libby.
Question 9c. Please discuss what EPA's understanding is of the real
resources that are available to a community like Libby, if such a
declaration could be granted.
Response. A declaration of an emergency by EPA would not increase
the amount of funding available from EPA, over and above the
significant amounts now dedicated to clean up in Libby. Similarly, EPA
is not aware of other agencies having authorities under which added
resources would become available through the declaration of an
emergency of this type. For example, when the Secretary of Health and
Human Services declared a public health emergency after 9/11, that
declaration provided added flexibility in the use of funds Congress
appropriated specifically for the 9/11 response. The emergency
authorities did not, however, increase the amount of funding available
for response efforts. (In the case of HHS, Congress has authorized but
not funded an account to be used in public health emergencies).
Tenmile, Montana, Cleanup
Question 10. Please give me an update on the status and progress of
the EPA's clean-up efforts at Tenmile, near Helena, Montana. In your
response, please indicate whether your the Agency has and/or will
receive adequate resources for this project?
Response. EPA Region 8 is making steady progress at the Upper
Tenmile Creek NPL Site. The Project Manager finalized the Record of
Decision for the site on June 28, 2002. EPA plans to remove and dispose
of contaminated soils, and conduct repair/reclamation work in 2003 at
the following locations: 8 residential properties in Lower Tenmile
Creek; Tenmile Road; Little Lilly and Lee Mountain Mines; and
residential properties in Rimini.
In support of these activities, EPA HQ has provided the Region with
$3.7 million for fiscal year 2003. EPA expects all work to proceed on
time, and within budget.
Clean Water and Safe Drinking Water SRF
Question 11. I am really trying to get my head around where and how
the EPA is proposing to fund water and wastewater projects in 2004, or
how they are planning to assist States and local communities with these
types of projects, particularly small, rural communities. I am very
concerned about the Administration's proposed cuts to the Clean Water
SRF program, and the Administration's proposed flat funding for the
Safe Drinking Water SRF program. Why did your agency propose this?
Response. The President's 2004 budget proposal actually increases
the Federal Government's investment in water and wastewater
infrastructure. Previous Administrations had only committed to funding
the CWSRF program at $1.212 billion in 2004 and 2005 (a total of $2.4
billion), with no funding thereafter. The President is proposing to
extend Federal capitalization through 2011--an additional 6 years, at
$850 million per year, for a total of $6.8 billion. Thus, the
President's proposal provides $4.4 billion more than previous plans.
These additional Federal funds, when combined with other CWSRF funding
sources, are projected to substantially increase the amount of
assistance provided by the CWSRF program in both the short-term and
long-term. That has allowed the Administration to increase the CWSRF
projected long-term target revolving level from $2 billion to $2.8
billion per year: a 40 percent increase.
The Administration is proposing to extend Federal support for the
Drinking Water SRF so it can revolve at $1.2 billion per year, an
increase of 140 percent over the previous goal of $500 million. To
realize this increased revolving level, the Administration is proposing
$850 million for fiscal year 2004 to fiscal year 2018. This proposal
extends the commitment for the DWSRF well beyond the fiscal year 2003
authorization period.
Question 11a. How can cuts and flat funding this year result in a
greater commitment from the Federal Government to the States over the
next several years? We should, at a minimum, maintain current funding,
and moving toward allocating more Federal funding to assist States and
local communities comply with Federal health, safety and security
requirements.
Response. By extending Federal capitalization of the CWSRF and
DWSRF programs through 2011 and 2018, respectively, at $850 million per
year, the President's 2004 budget proposal will significantly increase
the SRF programs' ability to help States and local communities to
comply with Federal health, safety and security requirements. The
budget proposal for extending Federal capitalization of the SRF program
recognizes that replacing the Nation's aging infrastructure requires a
long-term, sensible approach.
______
Responses of Administrator Christine Todd Whitman to Additional
Questions from Senator Lieberman
Climate Change Program
Question 1. The fiscal year 2004 EPA budget provides $15 million to
fund a new climate change program. Please describe EPA's plans for this
program.
Response. In total, the Environmental Protection Agency is
requesting $130 million for the Climate Change program in the fiscal
year 2004 President's Budget request--an increase of $5 million over
the fiscal year 2003 enacted level. No increase of $15 million is
requested to fund new climate change programs.
The President's Climate Change program reflects a new approach to
global climate change designed to harness the power of the markets and
technological innovation. The President has committed America to cut
greenhouse gas intensity by 18 percent over the next decade. This
approach supports vital climate change research and ensures that
America's workers are not unfairly impacted by climate change
strategies. As we learn more about the science of climate change and
develop new technologies to mitigate emissions, this annual decline can
be accelerated. Focusing on greenhouse gas intensity sets America on a
path to slow the growth of greenhouse gas emissions, and--as the
science justifies--to stop and then to reverse that growth.
New Source Review
Question 2. Please provide an update on the status of pending New
Source Review power plant litigation (on a case-by-case basis). Please
indicate what new actions have been filed in the past year.
Response. The chart below provides an update of pending and settled
New Source Review power plant litigation. In the past year, new actions
have been filed and settled for the United States vs. PSEG Fossil LLC,
United States vs. Virginia Electric and Power Company, United States
vs. Wisconsin Electric Power Company, and the United States vs. ALCOA,
Incorporated.
Status of Coal-fired Power Plants Judicial Cases
May 6, 2003
------------------------------------------------------------------------
Case Court Status
------------------------------------------------------------------------
United States v. Illinois Power Southern District Case pending--
Company, and Dynergy Midwest of Illinois. Trial scheduled
Generation, Inc.. June 2003.
United States v. Southern Southern District Case pending--
Indiana Gas and Electric Co.. of Indiana. Trial scheduled
June 2003.
United States v. AEP........... Southern District Case pending--
of Ohio. Currently in
Discovery
United States v. Ohio Edison... Southern District Case pending--
of Ohio. Trial concluded
in March 2003 and
parties are
awaiting a
decision
TVA v. EPA..................... 11th Cir. Court of Oral Arguments
Appeals. concluded in May
2002 and parties
are awaiting a
decision
United States v. Duke Energy Middle District of Case pending--
Corp.. North Carolina. Currently in
Discovery and
trial is
scheduled for
September 2003
United States v. Georgia Power. Litigation Stayed
by Court pending
TVA decision
United States v. Alabama Power. Litigation Stayed
by Court pending
TVA decision
United States v. Tampa Electric Middle District of Settled (February
Company. Florida. 2000)
United States v. PSEG Fossil District of New Settled upon
LLC. Jersey. filing of
complaint
(January 2002)
United States v. Cinergy Corp.. Southern District Currently in
of Indiana. discovery and
trial is
scheduled for
April 2004
United States v. Virginia Eastern District of Settled upon
Electric and Power Company. Virginia. filing of
complaint (April
2003)
United States v. Wisconsin Eastern District of Settled upon
Electric Power Company. Wisconsin. filing of
complaint (April
2003)
United States v. ALCOA, Inc.... Western District of Settled upon
Texas. filing of
complaint (March
2003)
------------------------------------------------------------------------
Water Trading Policy
Question 3. In February, EPA finalized its water trading policy.
Does EPA plan to issue guidance implementing the policy? If so, how
will EPA involve the public and interested community groups in guidance
development?
Response. At this time EPA has no plans to develop a water quality
trading guidance document. We intend to support implementation of
trading programs through continued outreach and education, facilitating
information-sharing among trading programs, and working on technical
issues such as estimation of nonpoint source pollution reductions.
Mountain Top Mining
Question 4. What is the status of Federal Government development of
the Environmental Impact Statement (EIS) addressing mountain top
mining? When will the EIS be issued in final?
Response. A general notice was placed in the Federal Registry that
the Draft Environmental Impact Statement (DEIS) would be available and
posted on the web on May 30, 2003. Hard copies and CDs were mailed out
on May 29, May 30, and June, 2, 2003. However, the Notice of
Availability (NOA) for DEIS in OECA's Office of Federal Activities
Weekly Federal Registry notice, which starts the official NEPA comment
period should go out in late June 2003.
There is no lead agency, rather the five co-leads include EPA, Army
Corps of Engineers, Fish and Wildlife Service, Office of Surface and
Mining, and the State of West Virginia. However, EPA and the Corps of
Engineers--with the assistance of all the co-leads--took the lead role
overseeing the print job, preparing the Federal Registry Notices and in
actually distributing the document.
Chemical Site Security
Question 5. We understand that in the last month EPA has completed
a review of whether more than 30 high-risk chemical facilities have
adopted adequate security measures. We also understand that EPA
Regional officials have conducted their own reviews at additional
chemical facilities. Please provide us with a copy of any reports or
summaries of the results of these reviews. Please describe EPA's
current program to ensure the security of chemical facilities from
terrorist attack.
Response. EPA visited a number of chemical facilities to learn more
about what is being done to protect such facilities against attack or
sabotage by terrorists or other criminals. The purpose of these visits
was not to judge the comprehensiveness, effectiveness or adequacy of
security assessments or upgrades at these facilities. Nor was it to
enforce EPA regulations or direct facilities to take particular
actions, such as resolving particular security vulnerabilities.
Instead, we discussed with facility representatives their ongoing and
post-9-11 efforts to secure hazardous substances, observed security and
hazard reduction measures in place to the extent practicable, and
discussed the available tools and measures for assessing and addressing
any vulnerabilities that may exist. In many cases, EPA Regional staff
have, and will continue to discuss chemical site security with other
facilities as part of their routine course of business.
It is important to emphasize that the facilities visited represent
only a very small fraction of the hazardous chemical facilities in the
United States. As such, EPA has been very cautious in any attempt to
extrapolate to broad conclusions about all U.S. chemical facilities
based on our brief discussions and observations. Further, the sites
visited voluntarily allowed our visit but requested that all
information be kept confidential. Consequently, no report or summaries
of these visits were prepared.
EPA's responsibilities are ``safety'' related and are designed to
prevent an accidental release of chemicals, not security measures
intended to prevent or deter a terrorist attack. The Office of Homeland
Security is the lead on security measures intended to prevent or deter
a terrorist attack. However, where appropriate EPA has undertaken
several activities with respect to chemical site security, including:
Collaboration with chemical trade associations on the
development of site security guidelines;
Support of the development and enhancement of the Sandia
Vulnerability Assessment Methodology;
Participation with the Center for Chemical Process Safety
(CCPS) in the development of their Security Vulnerability Assessment
Methodology and guidebook; we purchased and distributed this guidebook
to Local Emergency Planners and small and medium businesses throughout
the United States;
Initiated and sponsored several training sessions on the
Sandia VAM and CCPS SVA for State representatives, and small and medium
businesses; and
Development of an email outreach system to transmit
threat level and security advisory information directly to chemical
facilities.
Enforcement
Question 6. EPA's fiscal year 2004 budget proposes an increase of
about 100 positions for the enforcement program to the Administration's
fiscal year 2003 request. Doesn't this still translate into a reduction
of nearly 100 positions from fiscal year 2001 levels?
Response. The Agency's fiscal year 2004 Request includes 1,593.6
FTE for the enforcement program in the EPM appropriation. The fiscal
year 2004 Request reflects a reduction of 67.7 FTE from fiscal year
2001 enacted operating plan levels but includes an overall increase of
100 FTE over the fiscal year 2003 President's Budget Request.
----------------------------------------------------------------------------------------------------------------
FY 2003
Program FY 2001 FY 2003 Proposed FY 2004
Enacted Request Enacted Request
----------------------------------------------------------------------------------------------------------------
Compliance Monitoring........................... 510.0 419.3 487.7 464.4
Civil Enforcement............................... 954.8 848.2 930.6 915.1
Criminal Enforcement............................ 196.5 190.9 190.0 190.1
Homeland Security............................... 0.0 24.0 24.0 24.0
TOTAL....................................... 1,661.3 FTE 1,482.4 FTE 1,632.3 FTE 1,593.6 FTE
----------------------------------------------------------------------------------------------------------------
Question 7. How does EPA plan to deploy the 100 positions mentioned
in the previous question?
Response. The requested increase of 100 FTE will be used to enhance
inspection and enforcement coverage to better identify and address
persistent noncompliance in an expanding regulated universe.
The Office of Enforcement and Compliance Assurance is currently
conducting an analysis of work force-related challenges. OECA's
Assistant Administrator has appointed a Workforce Deployment Executive
Steering Committee, consisting of both OECA Headquarters and Regional
senior managers, to examine and provide specific recommendations
regarding the effective deployment of enforcement and compliance
resources. Based on recommendations from this committee, due out by
October 2003, OECA plans to target deployment of these resources to
ensure a holistic and integrated approach to compliance, serving as a
powerful deterrent to would-be violators.
Question 8. We understand that EPA is considering bolstering State
enforcement operations with Federal employees. Please comment on
whether EPA is considering this action and why. Please describe the
planned program. How will EPA ensure that the Federal enforcement role
is not further diminished by this program.
Response. Though EPA has discussed the possibility of making
Federal enforcement resources available to the States in the past,
there is currently no plan to do so in any systematic way. Through
existing mechanisms such as short-term assignments and
Intergovernmental Personnel Agreements (IPA), the Agency is able to
provide assistance to States that want and need it. The Agency will
address State requests for assistance on a case-by-case basis; ensuring
that Federal resources go to address significant environmental problems
or patterns of noncompliance, and that assistance provided to States
does not compromise EPA's ability to fulfill the Federal enforcement
role. EPA proposed in the fiscal year 02 and fiscal year 03 budgets a
State enforcement grant program to assist the States in their
enforcement efforts.
Question 9. A 2001 General Accounting Office report found that
EPA's work force deployment does not ensure consistent enforcement of
environmental requirements across regions. What steps has the Agency
taken to respond to this report?
Response. The Office of Enforcement and Compliance Assurance is
currently conducting an analysis of work force-related challenges as a
result of GAO's recommendation. OECA's Assistant Administrator has
appointed a Workforce Deployment Executive Steering Committee,
consisting of both OECA Headquarters and Regional senior managers, to
examine and provide specific recommendations regarding the effective
deployment of enforcement and compliance resources. The analysis, due
out by October 2003, will address GAO's concerns and other work force
deployment challenges.
______
Responses of Administrator Christine Todd Whitman to Additional
Questions from Senator Boxer
Question 1. Ms. Whitman, in your testimony before this committee on
February 26, 2003, and in the press you have stated that Environmental
Protection Agency's (EPA's) America's Children and the Environment
report is the first about mercury. This was alarming to me as there
have been numerous reports, studies and publications on mercury over
the last two decades, reports of which I was shocked to learn that the
EPA and its Administrator may be unaware. It was also alarming in that
it seemed to imply that until EPA did a report on the issue, there was
no good, scientific information on the issue.
Response. I did not mean to imply that there was no good scientific
information available or that we were unaware of such information. As I
said in my testimony and in the press, U.S. EPA's report on America's
Children and the Environment is the first such annual report from this
Agency's Office of Children's Health Protection that includes data on
exposure of children in the United States to mercury. I am aware of
CDC's reports, and EPA is pleased to be able to publicly highlight in
our report the most recent available national data from CDC on human
exposure to mercury in the United States.
Prior to the Children's Health report, EPA had issued a number of
documents including its Mercury Study Report to Congress, a
comprehensive investigation of various aspects of the mercury problem.
The Report concluded that a plausible link exists between human
activities that release mercury from industrial and combustion sources
in the United States and methylmercury concentrations in fish and
wildlife. The report also provided a quantitative risk assessment of
women of childbearing age (i.e., between the ages of 15 and 44 years).
The Report also concluded that mercury poses risks to wildlife,
including some birds and fur bearing animals such as loons, mink and
otters. This assessment reflected the Reference Dose evaluation
available at that time and was based on the older Iraqi dataset. Since
the Mercury Study Report to Congress, EPA has updated the Reference
Dose evaluation using three prospective cohort studies (Seychelles,
Faroes, and New Zealand). Although EPA is now basing its evaluation on
these newer studies, the Reference Dose has remained at 0.1 mg/kg-day.
Since the publication of EPA's Mercury Study Report to Congress,
the Agency has continued its efforts to better understand the
significance of methylmercury as a public health threat, as well as to
communicate the results of its assessments.
Issue 1: Centers for Disease Control, Second National Report on Human
Exposure to Environmental Chemicals, January 2003.
Question 2. Ms. Whitman, are you aware that the Centers for Disease
Control and Prevention has published two National Reports on Human
Exposure to Environmental Chemicals?
Question 3. Are you aware that the January 2003 report by the
Centers for Disease Control and Prevention that found that mercury
exposure during pregnancy results in over 300,000 babies born each year
at risk of neurological effects?
Question 4. Where you aware that this January 2003 report found
that 1 in 12 women of childbearing age has mercury levels above the EPA
safe health threshold (i.e., above 5.8 part per billion in blood)?
Question 5. Are you aware that, nationally, this translates into
nearly 4.9 million women of childbearing age with elevated levels of
mercury from eating contaminated fish, and approximately 320,000
newborns at risk of neurological effects from being exposed in utero?
(Number of newborns at risk derived by the Clean Air Task Force from
2000 census data and fertility data from the National Center for Health
Statistics.)
Question 6. If you are aware of these reports, why are you making
misleading statements that your study is the first on mercury and that
pathways of exposure are unknown? If you are not aware of these
studies, why not?
Response to Questions 2-6. We are aware of this report. As stated
above, EPA's report on America's Children and the Environment is the
first report from the Agency's own Office of Children's Health
Protection to include data on exposure of children in the United States
to mercury. This new CDC data on national exposure to mercury in the
United States was not available in prior years. As for pathways of
exposure, EPA has discussed publicly for many years that the primary
pathway of human and wildlife exposure to methylmercury in the United
States is through consumption of methylmercury-contaminated fish and
marine mammals.
Issue 2: Holloway, C., J.B. Adams, M. Margolis, X. Liu, ``Mercury
exposure and autism: a case-control study,'' 2001, presented at
International Meeting for Autism Research, November 2001, San
Diego, California.
Question 7. Ms. Whitman, are you aware of the 2001 San Diego study
of 50 autistic children primarily between the ages of 3 and 10, which
found that maternal consumption of seafood over 2 servings per month
led to a 3.5fold increased risk of having a child with autism?
Question 8. Are you aware that, in addition, researchers found that
in the first 3 years of life, children with autism had significantly
more ear infections (eight times more often than the control group),
likely due to weakened immune systems?
Question 9. If you are familiar with this study, what is this
Administration doing to publicize the risks from mercury consumption
and exposure to pregnant women and their developing infants? If you are
not taking any action to publicize this threat, why not? If you are not
aware of this study, why not?
Response to Questions 7-9. I am familiar with this study. EPA's
activities include significant efforts to communicate the risks of
methylmercury to those people most at risk, i.e., women of childbearing
age and their developing fetus, as well as infants and young children.
In addition, the Agency is providing information to other environmental
and health professionals who advise women of childbearing age. These
ongoing actions include:
(1) Support for State agencies and Tribes in their development of
fish consumption advisories for sports and subsistence anglers. EPA
also works with the public to help address the problem of
methylmercury-contaminated fish. The U.S. EPA has distributed outreach
materials to the U.S. medical community in multiple languages about
reducing exposure to contaminants in sport and subsistence caught fish.
The EPA has also maintained the National Listing of Fish and Wildlife
Advisories, which includes information on fish consumption advisories
in waters fished by sport and subsistence populations.
(2) Development of the Agency's new mercury web site as a major
resource for the lay public, as well as State and local professionals,
to use as a source of information on levels of mercury contamination in
fish.
(3) Presentations at numerous meetings of State and local
environmental and public health professionals on the significance of
mercury contamination and means to reduce mercury contamination and
exposure.
(4) Sponsoring national meetings in conjunction with the American
Fisheries Society hat have described the nature, extent and
distribution of mercury contamination in fish.
(5) Sponsoring a national meeting for representatives from States
and tribes to identify effective risk communication strategies to alert
people, especially women of childbearing age, to the risks posed by
consumption of methylmercury in excess of U.S. EPA's Reference Dose.
(6) Providing leadership in development of the scientific
evaluation and framework for the global mercury study conducted by the
United Nations Environment Programme (UNEP) during the past year. EPA
expects to continue working with UNEP as that organization develops
risk communication materials pursuant to the new global mercury program
it initiated in February 2003.
Issue 3: National Academy of Sciences, Committee on the Toxicological
Effects of Methylmercury, Toxicological Effects of
Methylmercury, National Academy Press, Washington, DC, 2000.
Question 10. Ms. Whitman, are you aware that the National Research
Council reaffirmed the risk of mercury exposure in utero to the
developing nervous system in 2000?
Question 11. Are you aware that in its study, the National Research
Council Committee on the Toxicological Effects of Methlymercury
reviewed the epidemiological and toxicology literature up to 2000?
Question 12. Are you aware that the committee estimated 60,000
newborns annually are at risk for neurodevelopment effects due to in
utero mercury exposure in the United States?
Question 13. Did you know that one potential effect noted by the
researchers included learning difficulties once the children reached
school age?
Question 14. Did you know that the report also reviewed evidence of
associations between dietary exposure to methylmercury and abnormal
cardiac function in both children and adults?
Question 15. If you are not aware of this study, why not?
Response to Questions 10-15. I am aware of the National Research
Council's work and the results.
Issue 4: Agency for Toxic Substances and Disease Registry (ATSDR), U.S.
Department of Health and Human Services, ``Toxicological
profile for mercury,'' Atlanta, GA, 1999.
Question 16. Are you aware that in 1999, the Agency for Toxic
Substance and Disease Registry (ATSDR) reaffirmed the neurotoxic
properties of methylmercury, confirming that children exposed in utero
are at greatest risk of neurological damage?
Question 17. Are you aware that in its Toxicological Profile for
Mercury, the ATSDR reported that mercury is a developmental toxicant,
with symptoms observed in offspring exposed in utero ranging from
delays in motor and verbal development to severe brain damage?
Question 18. Are you aware that the ATSDR found that while the
infant may be born apparently normal, the child later shows effects
that may range from being slower to reach developmental milestones,
such as first walking and talking, to more severe effects including
brain damage with mental retardation, incoordination, and inability to
move?
Question 19. Are you aware that the severity of these effects
depends upon the level of mercury exposure and the time of dose?
Question 20. Are you aware of this Federal Government analysis? If
you are not aware of the information being published by the Federal
Government on the effects of mercury on children's environmental
health, why not? If you are aware of these studies, why have you chosen
to downplay them and ignore them in your public comments?
Response to Questions 16-20. Yes, I am aware of ATSDR's activities
on mercury. EPA has never downplayed scientifically sound information
on the effects of mercury on children's health. As mentioned above, EPA
is pleased to be able to publicly highlight in our most recent
America's Children and the Environment report the best available
national data from the Centers for Disease Control on human exposure
(including children) to mercury in the United States.
Issue 5: Grandjean, P., et. al, Cognitive deficit in 7-year-old
children with prenatal exposure to methylmercury,
Neurotoxicology and Teratology 19(6) 1997: pp. 417-428.
Question 21. Ms. Whitman, are you aware of the 1997 epidemiological
study that found cognitive deficits in children with prenatal exposure
to methylmercury?
Question 22. Are you aware that in a large study of 1022 children
exposed to mercury via maternal consumption of pilot whale meat and
fish in the Faroe Islands in the North Atlantic, researchers observed a
number of neuropsychological deficits?
Question 23. Did you know that these mercury-related dysfunctions
were in the areas of language, attention, and memory, and to a lesser
extent in visual and/or spatial and motor functions?
Question 24. Did you know that the authors noted that these
deficits appear widespread, and are seen at mercury exposure levels
previously considered to be safe?
Question 25. If you are aware of this information, why is the Bush
Administration EPA stating that we need further study before we can act
to warn people of the risks from mercury emissions and exposure?
Response to Questions 21-25. I am aware of the study. As noted
above, EPA is, and has been, taking many actions to alert people of the
risks from methlymercury exposure, especially regarding the prenatal
exposures discussed in this specific report.
Issue 6: (Kjellstrom, T.P., et al., 1986, Physical and mental
development of children with prenatal exposure to mercury from
fish. Stage I: Preliminary tests at age 4; Kjellstrom, T.P., et
al., ``Physical and mental development of children with
prenatal exposure to mercury from fish,'' National Swedish
Environmental Protection Board Reports, Nos. 3080, 3642, 1989.
Cited in Committee on the Toxicological Effects of
Methylmercury, Toxicological Effects of Methylmercury, National
Academy Press, Washington, DC, 2000.
Question 26. Ms. Whitman, are you aware of the 1986 epidemiological
study from New Zealand that found developmental delays in children
exposed to mercury?
Question 27. Did you know that researchers studied a population of
935 New Zealand women who reported higher fish consumption during
pregnancy?
Question 28. Did you know that when comparing scores on a
development test at 4 years of age, 52 percent of children born to a
subgroup of women with the highest mercury exposures had abnormal or
questionable results, compared with 17 percent of control group
children?
Question 29. Did you know that in followup evaluations at 6 years
of age, the researchers found that maternal hair mercury was associated
with lower scores on full-scale IQ, language development, visual-
spatial skills, and gross motor skills?
Question 30. If you and the EPA are aware of this information, how
can you assert that an issue that we have been studying for two decades
is an ``emerging'' issue? If you are not aware of this information, why
not?
Response to Questions 26-30. I am aware of the study. In terms of
developing sound scientific information, two decades is a relatively
short period of time, and in that context mercury is still an emerging
scientific issue. Every year we continue to develop better data and
analysis on critical aspects of the problem, such as the extent and
effects of human exposure, especially low level exposure; and the fate
and transport of mercury pollution at every level, including locally,
regionally, nationally and globally.
Issue 7: Hightower, JM, ``Mercury Levels in High-End Consumers of
Fish,'' Environmental Health Perspectives doi:10.1289/ehp.5837,
2002. Online November 1, 2002.
Question 31. Ms. Whitman, are you familiar with the San Francisco
Bay area study that found mercury exposures high among health-conscious
urban residents?
Question 32. Did you know that a small-scale study of residents in
the San Francisco Bay Area found that people with high fish diets had
significantly elevated mercury levels?
Question 33. Did you know that of the 123 people tested (a mix of
physicians, Chief Executive Officers, internet executives, lawyers,
bankers and others), 89 percent had mercury levels exceeding the level
recognized as safe by the U.S. EPA and the National Academy of
Sciences?
Question 34. Were you aware that 63 had blood-mercury levels nearly
twice the recommended level, and 19 had blood-mercury levels nearly
four times the level considered safe?
Question 35. Did you know that 4 people had levels 10 times greater
than EPA's safe level? Patients who had high fish diets or who were
exhibiting symptoms of mercury exposure, including fatigue, headache,
joint pain, and reduced memory and concentration, were selected to
participate in the study?
Question 36. Did you know that mercury levels fell dramatically in
67 patients that were being followed closely after recommendations to
eliminate or greatly reduce their fish intake, with a particularly
significant drop in the first 3 weeks?
Question 37. Were you aware that some patients were still above the
EPA safe level 20 weeks and more after curtailing their fish
consumption?
Question 38. If you were aware of this study, why has this
Administration been downplaying the effects and threats of eating
mercury-contaminated fish? If you were not aware of this and other
studies demonstrating the elevated levels of mercury in people with
high fish diets, why not?
Issue 8: Choy, CM, et. al, BJOG: an International Journal of Obstetrics
and Gynecology. 109, 2002: pp. 1121-5.
Question 39. Ms. Whitman, are you aware of the 2002 study that
shows high mercury levels measured in infertile men and women?
Question 40. Did you know that the study of 157 infertile couples
and 26 fertile couples in Hong Kong compared blood mercury levels and
evaluated possible sources of mercury exposure in couples with high
levels?
Question 41. Did you know that researchers found that infertile
couples had higher mercury levels than fertile couples; infertile males
with abnormal semen and infertile females with unexplained infertility
also had higher blood mercury levels than their fertile counterparts?
Question 42. Did you know that blood mercury concentrations in
infertile couples also increased with seafood consumption?
Question 43. If you were aware of this study, why has this
Administration been downplaying the effects and threats of eating
mercury-contaminated fish? If you were not aware of this and other
studies demonstrating the elevated levels of mercury in people with
high fish diets, why not?
Response to Questions 30-43. I am familiar with these studies. EPA
has recognized that adults consuming high intakes of fish may have
excessive exposure to methylmercury. The Agency has sponsored studies
among high-fish consuming populations along a number of coasts in
America to identify sources of pollution, to document the extent of
mercury contamination of fish and shellfish, and to assist State and
local government in communicating the dangers posed by excessive
exposures to methylmercury. EPA scientists have also been highlighting
the results of the Hightower study in recent conferences of health
professionals. In January 2001, EPA published a new methylmercury water
quality criterion that describes the concentration of methylmercury in
fish that should not be exceeded to protect consumers of fish and
shellfish among the general population. This is the first time EPA has
used this approach, a direct result of the scientific consensus that
consumption of contaminated fish and shellfish is the primary route of
exposure to methylmercury.
Superfund
Question 44. Ms. Whitman, the Administration's fiscal year budget
for Superfund proposes increasing funding to $1.39 billion, a $117
million increase over fiscal year 2003 when inflation is not included.
Of this, EPA asserts that $150 million in additional funds will go to
remedial action. It is unclear from where within the Superfund program
the additional moneys will come.
Ms. Whitman, could you please detail for us from what other
Superfund activities this money will come. Investigations? Clean up
design? Removal actions? Long-term operation and maintenance?
Response. The President's budget request for Superfund for fiscal
year 2004 is $1.39 billion, an increase of $117 million over the fiscal
year 2003 request. This increase will provide $150 million in
additional funding for Superfund cleanup construction projects. The
President's fiscal year 2003 request included a one-time $75 million
add for building decontamination research related to homeland security
that is not being requested in fiscal year 2004. The fiscal year 2004
request slightly increases investigations, cleanup design, removal
actions, or long-term operation and maintenance.
Question 45. According to a Resources for the Future Report to
Congress, funding Superfund at 1.39 billion will result in a short fall
of $200 million. Likewise, an October 2002 IG report documented that
EPA did not fund approximately $200 million of Regional requests. Seven
sites EPA identified as high priority by EPA because of the risks to
human health and the environment received no funds, while 48 others
were underfunded. Ms. Whitman, what is EPA doing to ensure that
communities get the money they need to clean up these toxic sites?
Response. For fiscal year 2004, the Administration has requested an
increase to the Superfund budget that would provide an additional $150
million for Superfund construction funding. In addition to simply
requesting more money, EPA continues to:
Pursue responsible parties to conduct the cleanup work;
Manage all available Superfund resources by deobligating
resources from prior years that are not being put to use;
Prioritize funding to clean up construction projects that
are currently underway and need additional resources to complete work
to ensure that contamination is not left exposed and to avoid
unnecessary shut-down and startup costs;
Review sites with the EPA National Risk-based Priority
Panel to assess their relative risk and establish priorities for
allocating resources. Priority is given to sites that present the
highest risk to human health and to those sites that are nearing
completion; and,
Use emergency response or removal actions to mitigate the
immediate threats to people if we identify immediate threats to people
living near a site.
Question 45a. Ms. Whitman, what is EPA doing to ensure that
communities get the money they need to clean up these toxic sites? If
EPA no longer designates these seven sites as high priority, please
explain the rationale for the changed designation and summarize the
information that EPA received in support of, and in opposition to, this
change.
Response. EPA established the National Risk-based Priority Panel in
1995 to review and evaluate Superfund cleanup construction projects
that are expected to be ready to proceed during a given fiscal year.
The Panel evaluates projects based on their relative risk to human
health and the environment, and other factors including the site
schedule for achieving construction completion and the potential that
the work could be accomplished by responsible parties. Sites are
selected for funding based on their actual readiness to proceed to
construction, their relative risk to human health, the site completion
schedule, and the results of the enforcement screening process.
The seven projects that were not funded during fiscal year 2002
while remaining a priority were not among the highest priority sites
considered for funding during fiscal year 2002 and they were not near-
term candidates for construction completion. These sites remain on the
Superfund National Priorities List and EPA will continue to assess
their relative risk along with cleanup construction projects at other
sites that are expected to be ready to proceed in subsequent fiscal
years.
Question 45b: If they are still listed as high priority sites,
please explain why they received no funding from EPA in fiscal year
2002.
Response. EPA used the results of the National Risk-based Priority
Panel to identify the sites that posed the highest risk to human health
and those sites that were nearing completion, and selected those sites
for funding. The seven sites that were not funded ranked lower in terms
of their relative risk to human health when compare to sites selected
for funding and they were not near term completion candidates. These
sites remain a priority for EPA and we will continue to assess their
relative risk along with cleanup construction projects at other sites
that are expected to be ready to proceed in subsequent fiscal years
until they receive the required resources for construction.
Question 46. Ms. Whitman, in your opening statement you state that
the Administration has a ``long-standing commitment to clean-up
contaminated sites.'' However, your budget proposes to flat line
cleanups at 40 per year, down significantly from your estimate of 75
for 2001, and less than half the average of 87 cleanups completed per
year in the last 2 years of the Clinton Administration.
Ms. Whitman, can you please explain to us how cutting in half the
number of clean-ups completed translates into a commitment to cleaning
up contaminated sites?
Response. EPA remains committed to completing cleanups at Superfund
sites. As of October 1, 2002, EPA has achieved construction completion
at 846 of 1498 NPL sites (56 percent) and had taken substantial cleanup
action at over 90 percent of NPL sites.
In the early years of Superfund, it was difficult to show cleanup
progress and the program had to respond to legitimate complaints that
the program did not seem to be working. To show outputs, EPA developed
and put a premium on achieving ``Construction Completions''. This has
been a very beneficial metric of forward progress.
The NPL sites that are currently not construction complete are
typically larger, more complex and more time consuming than the ones
that have been cleaned up in the past. Many more of the sites on the
National Priorities List that are not construction complete are
``megasites''. In short, there are few low hanging fruit left.
The Administration is concerned about the declining number of sites
that are finishing construction and has requested an additional $150
million in fiscal year 2004 targeted toward an additional 10-15
construction starts, with a projected 7 to 10 additional completions
during the 2-year period of fiscal year 2005/6.
EPA has begun to develop measures that may lead to a better
understanding of the actual benefits to human health and the
environment from cleanups. For instance, EPA's new metric for sites
where EPA has eliminated exposure pathways (human exposures and
migration of contaminated groundwater under control) will show that
people are not being exposed to site contaminants from certain sites.
Exposure reduction has a strong intuitive link to better health
outcomes. EPA continues to explore ways to link construction progress
outputs (e.g., construction completion) to human health and
environmental protection outcomes to help focus our resource allocation
decisions. EPA is sponsoring the National Advisory Council on
Environmental Policy and Technology (NACEPT) that is having a public
dialog on, among other things, measuring program performance that will
have outcome elements.
Question 47. Ms. Whitman, the Administration frequently asserts
that site cleanups underway are more complex sites than previous site
cleanups. However, EPA has been cleaning up extremely complex sites for
decades and I am unaware of any evidence indicating that the complexity
of sites has changed radically over the last 2 years.
Please provide a detailed explanation of what constitutes a more
complex site. In addition, please summarize the information that your
Agency has received that indicates such a radical change in site
characteristics has occurred over the last 2 years and provide such
information to this committee.
Response. Many factors are included in complexity, which affect the
duration and cost of cleanups. Examples of some such factors include:
contaminant characteristics, presence of multiple contaminants, area
and volume of contamination, multi-media contamination, ecological
issues, groundwater issues, remedial technology(ies) necessary, site
location, proximity to populations, PRP cooperation, presence of
multiple PRPs, and other stakeholder interests (States, Tribes,
communities, natural resource trustees). While we have not attempted to
assess all the interrelated characteristics that describe complexity on
a site-specific basis, we have a few surrogate measures that
demonstrate how the current universe of non-construction complete NPL
sites is more complex than NPL sites that are construction complete.
For example, at the end of fiscal year 2001, 21 percent of the
remaining non-construction completed universe of final NPL sites were
Federal facility sites. The nature of contamination at these sites and
their vastness defines these sites as complex. At the end of fiscal
year 2001, only 4 percent of construction completed sites were Federal
facilities. Second, we observed that, of 124 sites identified as mega-
sites in fiscal year 2001, 75 percent were not construction complete.
Mega-sites are non-Federal facility sites with total cleanup costs
estimated at $50 million or more. Finally, we noted in fiscal year 2001
that the number of operable units per non-construction complete site
was more than 1 to more than 2 times greater than at sites that had
achieved construction completion. An operable unit is a means by which
EPA may divide a site into smaller scale components to address the
multiple aspects of site cleanup.
Question 49. Ms. Whitman, in April 2002, Marianne Horinko,
Assistant Administrator for the Office of Solid Waste and Emergency
Response, testified before this committee under oath. During that
testimony she indicated that if the Fund were not ``robust'', the
Administration would revisit reinstating the polluter fees. Her exact
quote was:
``I'm certainly not ruling out the tax. The Administration this
fiscal year felt that in the 2003 budget we still had a relatively
robust funding source in the remaining trust funds, that we did not
have to propose the Superfund tax, but we will look at that again in
2004 and see if we need to revisit that position.''
As we can see from your own budget documents, there is so little
money left in the Trust Fund that taxpayers would be picking up more
than 79 percent of cleanup costs, while polluters only pay 21 percent,
in fiscal year 2004. As you know, this was exactly the reverse in 1995,
when taxpayers paid 18 percent of the costs and polluters 82 percent.
Ms. Whitman, as the Trust Fund clearly is no longer ``robust,'' did
the Administration reconsidered reinstating the polluter fees? If not,
can you please explain Ms. Horinko's comments? If reinstating the fees
was considered, why was it not included in the President's budget
request?
Ms. Whitman, does EPA support reinstating the polluter fees or do
you support shifting the full burden of the federally funded portion of
the program to the general taxpayer?
Response. Viable polluters pay for their share of Superfund
cleanup, either through cost recovery or by cleaning up the sites
themselves. This results in responsible parties cleaning up
approximately 70 percent of Superfund sites. Private party settlement
commitments typically range more than $1 billion annually for Superfund
cleanup. EPA cleans up the remaining 30 percent of sites, which are
``orphan sites' where the polluter is no longer in existence or unable
to pay for cleanup.
As you know, the President's Fiscal Year 2004 Budget Request
includes an increase of $150 million in construction cleanup funding,
and does not recommend imposing new taxes. As in past years, we are
confident that Congress will appropriate the correct mix of trust fund
and general fund resources that will ensure adequate funding for this
vital program.
EPA strongly supports the polluter pays principle and continues to
make all viable polluters pay for or perform the cleanup of their
sites. Approximately 70 percent of Superfund cleanups are performed by
the parties responsible for hazardous waste sites. The remaining sites
either have no identified parties responsible for the cleanup, or the
parties responsible for the cleanup are bankrupt or otherwise
financially unable to contribute to the cost of cleanup. Decisions on
whether to fund the Superfund program from Trust Fund or General
revenues are made by Congress in the annual congressional
appropriations process.
Historically, there is no relationship whatsoever between the
balance in the Superfund Trust Fund and the level of congressional
appropriations. For the past 5 years, Congress has provided relatively
steady appropriations at $1.3 to $1.5 billion for the program. In fact
the U.S. Senate, under both Republican and Democratic leadership in the
last session of Congress, funded Superfund at approximately the same
level and largely out of general revenues. The President's Budget
anticipated that Congress would continue to provide appropriate funding
for the Superfund Program.
Children's Environmental Health
Question 50. Ms. Whitman, one of my greatest concerns is ensuring
that we protect children's environmental health. Information on the
state of children's health and the threats they face is critical to
protecting them and determining our funding priorities. As you know, I
have been trying to get EPA to release their report on the state of
children's health since June 2002, when OMB asked to review it. We were
happy to see EPA finally release the report on Monday after the media
leaked a portion of it. My office has been told repeatedly that the
reason the report was delayed was that it had to undergo an interagency
review that went beyond OMB.
Ms. Whitman, please explain the review process the report underwent
from June 2002 until its release on February 24, 2003, including the
agencies that reviewed the report.
Was the interagency review part of the peer review? If so, why
aren't the additional reviewers listed in the report? If not, was there
any external, independent peer review of the final report?
Question 51. Although we were glad to see the America's Children
and the Environment report, we were disturbed by the information in it.
The statistics on the state of children's health are alarming. Here are
a few of the facts:
Childhood asthma has doubled since 1980.
Children's cancer incidence has increased more than 20
percent since 1975.
Nearly one million children live within one mile of a
Superfund toxic waste site.
Kids' risk of cancer from hazardous air pollutants is 1-
in-100,000, 10 times higher than EPA's benchmark cancer rate of 1-in-
1,000,000.
Eighteen percent of children, more than 1.3 million
children, live in counties where their risk of cancer from hazardous
air pollutants in greater than 1-in-10,000.
EPA believes that there is ``essentially no `safe' level
of lead.''
In 1999-2000 the median concentration of concentration of
lead in blood was 2.2 micrograms per deciliter.
There is no safe level of mercury in the blood.
About 50 percent of women of childbearing age in the
United States have at least 1 part per billion of mercury of in their
blood.
In 2001, 44 States issued one or more advisories to warn
people about elevated concentrations of mercury in noncommercial fish.
6 out of every 1000 children have been diagnosed with
mental retardation.
Please detail the actions the Administration is taking to decrease
children's exposure to pollution in each of these areas?
Response. The Administration is involved in a number of activities
to protect children from environmental health risks. Children's
environmental health is a priority of this Administration. The
President has a task force that focuses solely on environmental health
risks and safety risks to children. The task force provides the
President with recommendations on Federal policy based on an
interagency collaborative process. Examples of such activities
supported by the Administration include:
asthma
The U.S. Environmental Protection Agency (EPA) and the Centers for
Disease Control (CDC) co-chair the Asthma Workgroup of the President's
Task Force on Environmental Health Risks and Safety Risks to Children.
In 1999, the Task Force issued Asthma and the Environment: A Strategy
to Protect Children to develop further understanding of how
environmental factors relate to the onset of asthma and exacerbation of
asthma symptoms. This report serves as the framework for collaboration
among the Department of Health and Human Services (HHS), EPA and other
Federal agencies.
The report made four recommendations for action:
1. Strengthen and accelerate focused research into the
environmental factors that cause or worsen childhood asthma.
2. Implement public health programs that improve use of scientific
knowledge to prevent and reduce the severity of asthma symptoms by
reducing environmental exposures.
3. Establish a coordinated nationwide asthma surveillance system
for collecting, analyzing, and disseminating health outcome and risk
factor data at the State, regional and local levels.
4. Identify the reasons for and eliminate the disproportionate
burden of asthma among different racial and ethnic groups and those
living in poverty.
The Administration is addressing these recommendations through a
variety of activities:
EPA funds intramural and extramural research into the environmental
factors that cause or worsen asthma.
In addition to funding independent investigators, EPA and the
National Institute of Environmental Health Sciences (NIEHS) established
12 Centers for Children's Environmental Health and Disease Prevention
Research dedicated solely to the study of children's environmental
health hazards. Several of the Centers are looking at the relationship
between environmental contaminants and asthma. The Centers translate
scientific findings into effective intervention and prevention
strategies for communities to reduce the burden of asthma in
disproportionately impacted populations.
EPA commissioned the National Academy of Sciences to
convene an expert panel to assess the state of the science surrounding
the relationship of indoor environments to the development and
exacerbation of asthma. The panel's report, Clearing the Air: Asthma
and Indoor Air Exposures, issued in 2000 has informed the scientific
basis for the Agency's public heath outreach and education program.
In response to the growing asthma problem, EPA created a national,
multi-faceted asthma education and outreach program. This comprehensive
program stresses the importance of incorporating environmental
management into asthma education, outreach and management strategies
with special emphasis on disproportionately impacted audiences. EPA
implements comprehensive asthma management programs through
partnerships with national organizations and in collaboration with the
National Asthma Education and Prevention Program (NAEPP), the primary
vehicle for coordinating asthma activities across the Federal
Government.
The components of EPA's national asthma education and outreach
program to fight childhood asthma include:
Through a national awareness campaign, EPA is working to
raise awareness and prompt community action about asthma through a
comprehensive, research-based, public service, media campaign launched
in collaboration with the Ad Council in March 2001. The campaign seeks
to raise public awareness about asthma and encourage parents of
children with asthma to take steps to prevent asthma attacks EPA is
developing an assessment of the media campaign to measure its effects
on the frequency of asthma attacks. EPA launched the second wave of the
campaign in June 2003.
EPA provides funds to national organizations in the
health care community to raise awareness of environmental asthma
management and incorporate environmental controls into clinical
practice and standards of care. Activities to date include:
American Respiratory Care Foundation educated 600
pediatric patients and their families and trained 2,400 respiratory
therapists, ultimately educating up to 15,000 asthma patients.
Bureau of Primary Healthcare trained over 150 health care
providers in health clinics nation-wide, reaching approximately 25,000
asthma patients.
Asthma and Allergy Foundation of America trained 360
health care professionals to provide integrated environmental trigger
control and asthma management education to patients.
EPA provides funds to national organizations to support school and
daycare programs that teach children, staff, and parents about asthma
management, including the control of indoor environmental triggers.
EPA's Indoor Air Quality Tools for Schools program aims
to improve indoor air quality and asthma education in the nation's
schools. The program helps school personnel assess, resolve, and
prevent indoor air quality problems and reduce exposure to asthma
triggers in schools.
New guidance on school design has been developed and will
soon be available to the public. The IAQ Design Tools for Schools web
resource complements the existing program, encouraging schools to use
high performance building goals, and addresses the importance of
healthy school environments.
To educate families about how to control indoor environmental
triggers including allergens and secondhand smoke in their homes, EPA
manages a national competitive grants program for community based in-
home asthma education. In addition, EPA developed a national Smoke-Free
Home Campaign to educate and motivate parents to make their homes and
cars smoke-fre Data from the CDC indicate that cotinine values at the
90th percentile, representing the most highly exposed 10 percent of
children, declined by 18 percent between 1988-1991 and 1999-2000.
Continine blood levels are a measure of exposure to second-hand smoke.
EPA continues to promote Air Quality Index (AQI)
forecasting by State and local air agencies as a way to help people
with asthma plan their outdoor activities to reduce exposure to air
pollution, which can be a significant asthma trigger. AQI forecasts are
carried on the AIRNOW Web site (http://www.epa.gov/airnow), and in USA
Today and on The Weather Channel, as well as, local media across the
country.
EPA, in collaboration with other Federal Agencies, is
supporting the Environmental Council of States (ECOS) and the
Association of State and Territorial Health Officials (ASTHO) to
develop and implement with State health and environmental agencies a
national asthma action agenda to reduce environmental triggers of
childhood asthma. Forty-one States have participated in the process.
In 2003, EPA plans to request proposals from State health
and environmental agencies to support demonstration projects that will
use existing asthma surveillance data to design and implement
strategies and actions to minimize environmental factors that
contribute to asthma in children.
In addition, HUD's Healthy Homes program is conducting research to
uncover the conditions in housing that may contribute to childhood
asthma.
By integrating sound science, effective public health education and
outreach programs, and better measurement of health outcomes, the
Administration is committed to improving the quality of life for
children with asthma.
childhood cancer
The President's Task Force on Environmental Health Risks and Safety
Risks to Children has been involved in a number of successful projects
related to childhood cancer:
The National Cancer Institute is the lead agency for
developing the Childhood Cancer Research Network. The proposed network
will establish a national cohort of children with cancer in order to
study the etiology of cancers in children and participate in childhood
cancer research projects.
EPA proposed Supplemental Guidance for Assessing Cancer
Susceptibility Resulting from Early Life Exposure to Carcinogens to the
Draft Guidelines for Carcinogen Risk Assessment describing possible
approaches that could be used to assess risks resulting from early life
exposure to potential carcinogens. Public comment on the draft
Supplemental Guidance and the draft Guidelines for Carcinogen Risk
Assessment ended on June 2, 2003.
superfund
The Superfund program is making significant progress at protecting
children by:
routinely identifying immediate threats to people living
near a site.
conducting emergency response or removal action (such as
removing containers of hazardous waste or providing safe drinking
water) to address immediate threats, and
relocating people, if necessary.
Significant progress has been made in cleaning up sites, and today
57 percent of the sites on the National Priorities List (NPL) are
construction complete. Over 90 percent of the NPL sites have already
had significant cleanup work completed.
Children are always considered a separate, sensitive population for
risk assessments conducted at sites and for determining site cleanup
levels. If the most significant risks are determined to be those risks
posed to children, the site remedies are designed to protect those
children. As part of the risk assessment process, we ensure the
toxicity values used are protective of children's increased
sensitivity.
If children are present near a site, extra efforts at community
outreach and education are taken. These efforts often involve visiting
schools to inform children of ways to reduce exposures and distributing
informational fact sheets to the community on ways to protect
children's health.
In addition, EPA, the Agency for Toxic Substances and Disease
Registry (ATSDR), and the Association of Occupational and Environmental
Clinics worked together to develop the Pediatric Environmental Health
Specialty Unit (PEHSU) Program, which is a national resource for
pediatricians, other health care providers, Federal staff, and the
public to reduce environmental health threats to children, improve
access to expertise in pediatric environmental medicine, and strengthen
public health prevention capacity. The key focus areas of the PEHSUs
are medical education and training, telephone consultation, and
clinical specialty referral for children who may have been exposed to
environmental hazards. Eleven of these units are operating in the
United States.
An example of Superfund's work are the significant reductions in
children's blood lead levels resulting from the cleanup of the Oronogo/
Duenweg Mining Belt Site. In 1991, the Missouri State Health Department
and ATSDR determined that over 14 percent of children in the area had
blood lead levels greater than or equal to 10 mg/dL. After cleanup at
over 2,500 homes, blood lead levels in children living in the same area
that were greater than or equal to 10 mg/dL had declined to 2 percent
in 2000.
hazardous air pollutants
According to the 1996 National Air Toxics Assessment (NATA), 6
percent of children or 2.4 million children live in counties where the
risk of cancer from hazardous air pollutants is one in 10,000. The risk
to the average child nationally is 53 in a million. People exposed to
hazardous air pollutants at sufficient concentrations and durations may
have an increased chance of getting cancer or experiencing other
serious health effects. These health effects can include damage to the
immune system, as well as neurological, reproductive (e.g., reduced
fertility), developmental, respiratory and other health problems.
Children and the elderly are especially susceptible to many of these
health effects.
Under the Clean Air Act (CAA) the Agency is involved in a number of
activities to reduce the potential exposure of children to hazardous
air pollutants. These activities include:
1. Issuing regulations that impose source-specific standards
limiting emissions of hazardous air pollutants. Existing source-
specific standards that have been promulgated to date have reduced air
toxic emissions by nearly 2.1 million tons--a reduction of nearly 35
percent from pre-clean air act estimates.
2. National, regional, and community-based initiatives that are
multi-media and that focus on areas where people are at the greatest
risk. These activities support State, local and tribal activities and
include:
Encouraging and supporting area-wide strategies developed
by the State, tribal or local air pollution control agencies.
Support local and State activities consistent with the
Integrated Urban Air Toxics Strategy.
Addressing multi-media aspects of air toxics exposure
(e.g., the Great Waters program).
3. The NATA is helping the Agency identify areas of concern,
characterize risks, and track progress toward meeting the air toxics
program goals. The NATA activities include:
developing and expanding air toxics monitoring,
improving and periodically updating emissions
inventories,
multi-media and exposure modeling,
continuing research on health effects,
determining exposure to both ambient and indoor air
toxics, and
improving exposure and risk assessment tools.
4. Education and outreach activities. In light of the scientific
complexity inherent in air toxics issues, the Agency recognizes that
the success of the overall air toxics program depends, in part, on the
Agency's ability to communicate effectively with the public about air
toxics risks and activities necessary to reduce those risks. Much of
EPA's outreach material can be found on the Agency's Air toxic website
(http://www.epa.gov/ttn/atw/)
lead poisoning
The Administration's efforts to reduce lead hazards include
collaboration and coordination among Federal agencies (EPA, HUD, HHS,
and DOJ), development of regulations when necessary, and public
education. Such collaborative efforts have resulted in a great success
in this area. Recent estimates by CDC show that the number of children
with blood lead levels of 10 mg/dL or greater declined from 890,000 in
1991-1994 to 434,000 in 1999-2000 (please refer to the Second National
Report on Human Exposure to Environmental Chemicals (CDC), National
Health and Nutrition Examination Survey (1999-2000), and www.cdc.gov/
nceh/lead/research/kidsBLL.htm.)
In January 2002, EPA and Department of Housing and Urban
Development (HUD) announced the broadest lead disclosure settlement
ever with one of the nation's largest property management firms, the
Denver-based Apartment Investment and Management Co. (AIMCO). AIMCO
agreed to test and cleanup lead-based paint hazards in more than
130,000 apartments in 47 States and Washington, DC.
The President's Task Force on Environmental Health Risks and Safety
Risks to Children, co-chaired by EPA and HHS, published Eliminating
Childhood Lead Poisoning, A Federal Strategy Targeting Lead Paint
Hazards in 2000. Its recommendations include 1) target grants for low
income housing and leverage the private sector to control lead paint
hazards; 2) improve early intervention by expanded blood screening; 3)
conduct research to improve prevention and promote innovative ways to
bring down lead hazard control costs; 4) implement monitoring programs.
The Administration has requested increased funding for lead hazard
control programs at HUD, now at its highest level ever, which will
protect more children than ever before. The Administration has also
proposed a new $25 million Innovative Lead Hazard Reduction Grant
program in 2004 for HUD. In addition, the Administration has proposed
an additional $10 million for HUD's regular lead hazard control grant
program in 2004, which is $10 million more than requested in 2003.
Operation Lead Elimination Action Program (LEAP), developed by HUD
and consistent with the President's Task Force's strategy, leverages
additional private sector resource for local lead hazard control
activities. In 2002, Congress appropriated $7 million for this program,
which will leverage an additional $17 million in private sector funding
for local lead hazard control programs. In 2004 the Administration has
requested an additional $4 million for a total of $10 million for this
program.
In October 2002, HUD awarded $94.7 million in grants to State and
local governments and others to fund programs to eliminate lead-based
paint hazards and other health threats in low-income housing. The
grants will also be used to leverage additional private sector
resources, promote educational and training programs and conduct
research on innovative methods of lead hazard identification and
control.
Most recently, EPA launched a Lead Poisoning Awareness Campaign
along with the National Council of La Raza (NCLR) to raise awareness
among Latino parents of the importance of routine lead screenings for
their children.
mercury
U.S. EPA is concerned about the seriousness of the threat of
mercury pollution to the environment, and the seriousness of health
damage resulting from human exposure to mercury. Under the Clear Skies
proposal, mercury emissions from coal-fired power plants would be
capped by almost 50 percent by 2010 and by nearly 70 percent in 2018.
The Agency has also modified water quality criterion to incorporate new
scientific information about mercury. EPA has been in the forefront of
establishing health-protective recommendations based on the most recent
scientific evaluations of the toxicity of methylmercury to the
developing brain, as well as evaluations of other adverse effects on
both children and adults.
EPA is currently regulating mercury emissions from municipal waste
and medical waste incinerators. EPA regulations require that these two
types of sources reduce their emissions by over 90 percent. These two
sources were once the largest sources in the United States after coal
fired electric utility boilers.
mental retardation
EPA and the National Institute of Environmental Health Sciences
established 12 Centers for Children's Environmental Health and Disease
Prevention Research dedicated solely to the study of children's
environmental health hazards. These unique centers perform targeted
research in children's environmental health and translate scientific
findings into intervention and prevention strategies by working with
communities. Several of the Centers are looking at the relationship
between environmental contaminants and developmental disabilities.
Question 52. I was particularly shocked to see language in the
report America's Children and the Environment that appeared to
backtrack on the accepted fact that children are especially vulnerable
to the effects of environmental contaminants due to children's
behaviour and their developing physiology. Your report, America's
Children and the Environment, states that children ``may be more
vulnerable to the effects of contaminants''. Of course, in many other
places in the report, EPA acknowledges that children are particularly
vulnerable to these threats.
Ms. Whitman, does this EPA accept that children are especially
vulnerable to the effects of contaminants, or has its position on this
changed?
If EPA's position has changed, when was this decision made and with
what input? Did you consult with physicians, scientists, industry,
environmental and public health organizations? Please provide the
committee with a list of the parties with which EPA consulted.
If EPA's position has changed, please provide us with the
scientific evidence that supports EPA's new position.
enforcement
Question 53. Ms. Whitman, I understand that because of the recent
passage of the Omnibus Appropriations bill that EPA has not had a
chance to detail how it will spend those funds, so it is difficult to
pin down many funding issues. One that I am particularly concerned
about is Enforcement. The fiscal year 2004 request cut a total of 71
positions in the enforcement program, from 3482 FTE in fiscal year 2002
to 3411 FTE in fiscal year 2004. However, it is unclear how these
resources will be distributed within the Agency for enforcement
activities, such as inspections, compliance monitoring, investigations,
and pollution control. It is also unclear how these figures relate to
fiscal year 2003 funding levels.
Please provide the committee with a detailed break down of enacted
fiscal year 2003 enforcement funding activities.
Department of Defense Request for Exemptions from Environmental Laws
Question 54. Recently, the Department of Defense proposed numerous
exemptions from environmental laws--including RCRA, the Clean Air Act
and the Clean Water Act--to facilitate training activities. Our
environmental laws have been on the books for many years--unfortunately
during these same years we have faced military conflict. Yet, I am not
aware of proposals in the past to exempt military training activities
from our environmental laws. The need for exemptions is not clear to
me.
One proposal is to exempt used or fired munitions on operational
ranges from the definition of solid waste in RCRA. Ms. Whitman, would
you support eliminating the authority of your Agency, as well as that
of the States, to order the abatement of an imminent and substantial
endangerment of health or the environment caused by the handling of
these munitions?
Question 55. Do you believe that the defense agencies should be
exempt from current requirements to obtain Clean Water Act permits
before they discharge pollutants into waters of the United States as
part of military training and testing exercises?
Response. No, I do not believe such an exemption is warranted at
this time.
Question 56. Another proposal would exempt military activities from
clean air act requirements despite the fact that there are currently
several exemptions for the military. Do you believe that defense
agencies should not be required to do their share to clean up our air?
No response.
Question 57. If there are certain instances for which a waiver
would be appropriate, why aren't the exemptions contained in current
law for national security purposes sufficient? Have they been used in
the past?
No response.
______
Responses of Administrator Christine Todd Whitman to Additional
Questions from Senator Clinton
Question 1. Administrator Whitman, I was very pleased that EPA
released its report last month on children's environmental health. This
is an area that we must focus on if we want to improve our nation's
health overall, because an ounce of prevention can mean the difference
between a long healthy life and one that is filled with chronic health
problems and diseases.
In the report, EPA states that ``at present, available data do not
allow scientists to determine the role that environmental contaminants
play in the prevalence of some childhood diseases.'' I find that
statement very troubling.
We need to be doing more to educate ourselves about the
environment's impact on children's health, which will ultimately help
us raise healthier children and reduce health care costs. According to
a recent Mount Sinai School of Medicine study, childhood diseases of
environmental origin cost Americans nearly $54.9 billion annually.
One way to do this is through continued support for the EPA/NIEHS
Centers for Children's Environmental Health and Disease Prevention
Research, which you mention in the forward to the report. These Centers
are addressing environmental factors that may cause or contribute to
childhood illnesses such as asthma, or that can interfere in the proper
growth and development of our nation's children. We have two such
Centers in New York--one at Columbia and one at Mount Sinai--and they
are doing great work.
Can you tell us what the Administration has proposed in terms of
funding for these Centers in FY04 and how it compares to current
funding levels for the Centers? If the funding for these Centers is
going down as we have heard that it is, I strongly urge the
Administration to rethink these proposed cuts in funding for the
Centers.
Response. In 1998, EPA and the National Institute for Environmental
Health Sciences (NIEHS) established eight Centers of Excellence for
Children's Health and Disease Prevention Research. In 2001, EPA and
NIEHS expanded the Children's Centers program to twelve.
The centers established in 1998 were funded for 5 years with the
expectation that in 2002 they would re-compete for continued funding.
The re-competition would be open to the existing eight centers, whose
funding is due to expire in 2003, and new institutions and consortia
wishing to establish new Centers. Both agencies are currently
collaborating on administering the re-competition.
The EPA's Science Advisory Board (SAB) recommended in 2002 that the
Agency achieve a balance between center-based research and
solicitations for individual grants. In response to this
recommendation, EPA will maintain a consistent level of funding for
children's environmental health research, and redirect some funds from
the centers to other funding mechanisms that effectively address high-
priority children's health issues. The redirected resources will be
used to support EPA solicitations for individual Science to Achieve
Results (STAR) grants related to children's health. Topics under
consideration for these solicitations include childhood cancer, genetic
markers of environmentally induced childhood illness, and dose-response
assessment methods for developing organisms.
The proposed funding levels are shown below:
----------------------------------------------------------------------------------------------------------------
Children's Research Children's Research
Fiscal Year Centers Grant Solicitations Total
----------------------------------------------------------------------------------------------------------------
2002................................. $ 9.0 million.......... $ 0.0 million.......... $ 9.0 million
2003................................. $ 7.5 million.......... $ 1.5 million.......... $ 9.0 million
2004................................. $ 6.0 million.......... $ 3.0 million.......... $ 9.0 million
----------------------------------------------------------------------------------------------------------------
The centers focus on research to elucidate the role of
environmental exposures in asthma and developmental disorders among
children and provide scientists with an opportunity for collaboration
on research programs addressing environmental contributions to
children's health and illness. They also facilitate the translation of
basic scientific knowledge into strategies that are aimed at reducing
the incidence of environmentally related childhood illness. The intent
of these centers is to establish a national network that fosters
communication, innovation, and research excellence with the ultimate
goal of reducing the burden of morbidity among children as a result of
exposure to harmful environmental agents.
Individual grants are another highly effective mechanism to pursue
research into children's health. Grant awards can be made to a larger
number of scientists from across a broader number of institutions, all
of whom are working in a variety of ways toward addressing specific
uncertainties related to children's exposures to environmental
contaminants. Research from individual grant awards usually allows
greater depth of investigation in a particular area instead of the
highly complex, multi-disciplinary, but less in depth, research
associated with centers. The key is to have a diverse research
portfolio--some research conducted via centers and other research
conducted via individual grants--to ensure that the widest expertise of
investigators are contributing to the children's health research
program and to provide opportunities for collaboration among centers
and other individual investigators.
For example, through our solicitations for individual grants, we
have funded scientists who are providing detailed, valuable information
on targeted key areas of uncertainty, including understanding the
extent of children's exposures to pesticides and possible associated
health effects; finding innovative, non-invasive ways to measure levels
of toxic substances in children; and understanding how chemical
exposures interact with children's genetic make-up to possibly produce
adverse health outcomes.
Long Island Sound Funding
Question 2. Administrator Whitman, in addition to the concerns
raised by Senator Jeffords with respect to funding for Lake Champlain,
which I would like to echo, I am very concerned about the
Administration's request for the Long Island Sound--which once again
has been reduced to less than half a million dollars in the
Administration's fiscal year 2004 budget.
Where as funding requests for other geographic initiatives such as
the Gulf of Mexico, the Great Lakes, Chesapeake Bay, and the Florida
Everglades all have gone up from last year's request, the request for
the Long Island Sound remains flat and terribly low--substantially
lower than what is currently authorized and what has traditionally been
appropriated by Congress.
I know my colleague on the committee, Senator Lieberman, shares my
concerns on this issue.
The Long Island Sound is a tremendous natural resource that is also
under tremendous strain--and it needs our help. Like other estuaries,
Long Island Sound abounds in fish, shellfish, and waterfowl. It
provides feeding, breeding, nesting, and nursery areas for diverse
animal and plant life. And there are more than 8 million people living
within the Sound's watershed as well.
As a result, like many other estuaries, the Long Island Sound is
plagued by low dissolved oxygen levels and high nitrogen loads. Over a
billion gallons of treated effluent are discharged each day from sewage
treatment plants into the Long Island Sound--contributing over 150,000
pounds of nitrogen per day into the Sound.
This is a costly problem in many ways--costly to the environment,
costly to the economy, and frankly, costly to solve. The $477,000
included in the Administration's fiscal year 2004 budget would not even
make the smallest dent in the needs of the Long Island Sound.
Will you commit to work with my colleagues and me to find ways to
direct much needed Federal resources to the Long Island Sound in fiscal
year 2004?
Response. I share your views regarding the importance of the Sound
and want you to know that it continues to be a priority for this
Administration. In addition to the $477,000 requested explicitly for
the Long Island Sound, our request also includes $310,000 for the Long
Island Sound through our Coastal Watersheds/National Estuary Program.
Preparedness and Response to Disasters
Question 3. Administrator Whitman, the draft report, ``Exposure and
Human Health Evaluation of Airborne Pollution from the World Trade
Center Disaster,'' released by the Agency acknowledges that:
``(1) Persons exposed to the extremely high levels of ambient
particulate matter and its components during the collapse of the World
Trade Center towers and for several hours afterwards were likely to be
at risk for immediate acute (and possibly chronic) respiratory and
other types of symptoms.''; and
``(2) The first measurements of some of the contaminants were on
September 14, while other contaminants were not measured until
September 23. . . . . . . Because there are only limited data on these
critical few days, exposures and potential health impacts cannot be
evaluated with certainty for this time period.''
The New York Daily News also pointed to findings in the report
regarding very high levels of dioxin.
What is the EPA doing to ensure our ability to properly respond to
disasters of this size and scope in a way that is protective of human
health, should they unfortunately occur again in the future? How is
this reflected in the Agency's budget for fiscal year 2004?
Response. Over the past year and a half EPA has made considerable
progress toward building the capacity to respond to large-scale
incidents; however, we have not achieved the capacity to respond to
five simultaneous large-scale incidents. The fiscal year 2002 homeland
security supplemental resources provided a significant boost to the
Agency's emergency preparedness and response program. These funds
permitted the program to hire additional response personnel (On-Scene
Coordinators (OSCs)) and provide them and existing OSCs with
specialized equipment and basic training necessary to respond to
chemical and biological agents. During this period the program also
established the Environmental Response Team West (ERT-W), which
complements the ERT East, to provide technical expertise to our field
response personnel for incidents that may occur in the western part of
the country. Recently enacted fiscal year 2003 congressionally directed
funds enable the Agency to continue these efforts.
In addition to response activities, EPA is also taking actions that
will reduce casualties and property damage through simple yet effective
preparedness actions. In the past year, as Executive Secretariat of the
Office of Homeland Security Building Air Protection workgroup, EPA
developed guidance for release by DHS on how the public can reduce
their exposure during an attack (Protect Your Family), and assisted
with the development of two documents that reduce the vulnerability of
buildings (Protecting Buildings from Airborne Chemical, Biological, and
Radiological Attacks and Improved Building Air Filtration).
EPA is working with the Department of Homeland Security to
implement a biological contaminant monitoring network. This work is
funded by the Department of Homeland Security. We are now exploring
potential additional work on biological monitoring in fiscal year 2004.
EPA requested $123.1 million in the fiscal year 2004 budget for
Homeland Security responsibilities. This request includes resources to
establish a National Decontamination Team and to provide immediate
response capabilities to safely and effectively support decontamination
activities related to chemical, biological, and radiological events.
The request also includes funding for equipment and training of our
OSCs, which will continue to advance EPA's capacity to respond to
multiple large-scale events. EPA's fiscal year 2004 budget request also
includes an increase to the Environmental Radiation Ambient Monitoring
System (ERAMS) that will provide system improvements to expand and
upgrade the system by increasing reliability and population coverage.
Question 4. Administrator Whitman, I was very pleased that EPA
released its report last month on children's environmental health. This
is an area that we must focus on if we want to improve our nation's
health overall, because an ounce of prevention can mean the difference
between a long healthy life and one that is filled with chronic health
problems and diseases.
In the report, EPA states that ``at present, available data do not
allow scientists to determine the role that environmental contaminants
play in the prevalence of some childhood diseases.'' I find that
statement very troubling.
We need to be doing more to educate ourselves about the
environment's impact on children's health, which will ultimately help
us raise healthier children and reduce health care costs. According to
a recent Mount Sinai School of Medicine study, childhood diseases of
environmental origin cost Americans nearly $54.9 billion annually.
One way to do this is through continued support for the EPA/NIEHS
Centers for Children's Environmental Health and Disease Prevention
Research, which you mention in the forward to the report. These Centers
are addressing environmental factors that may cause or contribute to
childhood illnesses such as asthma, or that can interfere in the proper
growth and development of our nation's children. We have two such
Centers in New York--one at Columbia and one at Mount Sinai--and they
are doing great work.
Can you tell us what the Administration has proposed in terms of
funding for these Centers in FY04 and how it compares to current
funding levels for the Centers? If the funding for these Centers is
going down as we have heard that it is, I strongly urge the
Administration to rethink these proposed cuts in funding for the
Centers.
Response. In 1998, EPA and the National Institute for Environmental
Health Sciences (NIEHS) established eight Centers of Excellence for
Children's Health and Disease Prevention Research. In 2001, EPA and
NIEHS expanded the Children's Centers program to twelve.
The centers established in 1998 were funded for 5 years with the
expectation that in 2002 they would re-compete for continued funding.
The re-competition would be open to the existing eight centers, whose
funding is due to expire in 2003, and new institutions and consortia
wishing to establish new Centers. Both agencies are currently
collaborating on administering the re-competition.
The EPA's Science Advisory Board (SAB) recommended in 2002 that the
Agency achieve a balance between center-based research and
solicitations for individual grants. In response to this
recommendation, EPA will maintain a consistent level of funding for
children's environmental health research, and redirect some funds from
the centers to other funding mechanisms that effectively address high-
priority children's health issues. The redirected resources will be
used to support EPA solicitations for individual Science to Achieve
Results (STAR) grants related to children's health. Topics under
consideration for these solicitations include childhood cancer, genetic
markers of environmentally induced childhood illness, and dose-response
assessment methods for developing organisms.
The proposed funding levels are shown below:
----------------------------------------------------------------------------------------------------------------
Children's Research Children's Research
Fiscal Year Centers Grant Solicitations Total
----------------------------------------------------------------------------------------------------------------
2002................................. $ 9.0 million.......... $ 0.0 million.......... $ 9.0 million
2003................................. $ 7.5 million.......... $ 1.5 million.......... $ 9.0 million
2004................................. $ 6.0 million.......... $ 3.0 million.......... $ 9.0 million
----------------------------------------------------------------------------------------------------------------
The centers focus on research to elucidate the role of
environmental exposures in asthma and developmental disorders among
children and provide scientists with an opportunity for collaboration
on research programs addressing environmental contributions to
children's health and illness. They also facilitate the translation of
basic scientific knowledge into strategies that are aimed at reducing
the incidence of environmentally related childhood illness. The intent
of these centers is to establish a national network that fosters
communication, innovation, and research excellence with the ultimate
goal of reducing the burden of morbidity among children as a result of
exposure to harmful environmental agents.
Individual grants are another highly effective mechanism to pursue
research into children's health. Grant awards can be made to a larger
number of scientists from across a broader number of institutions, all
of whom are working in a variety of ways toward addressing specific
uncertainties related to children's exposures to environmental
contaminants. Research from individual grant awards usually allows
greater depth of investigation in a particular area instead of the
highly complex, multi-disciplinary, but less in depth, research
associated with centers. The key is to have a diverse research
portfolio--some research conducted via centers and other research
conducted via individual grants--to ensure that the widest expertise of
investigators are contributing to the children's health research
program and to provide opportunities for collaboration among centers
and other individual investigators.
For example, through our solicitations for individual grants, we
have funded scientists who are providing detailed, valuable information
on targeted key areas of uncertainty, including understanding the
extent of children's exposures to pesticides and possible associated
health effects; finding innovative, non-invasive ways to measure levels
of toxic substances in children; and understanding how chemical
exposures interact with children's genetic make-up to possibly produce
adverse health outcomes.
Question 5. Administrator Whitman, the Consumer Product Safety
Commission recently released a report documenting the increased risk of
bladder and lung cancer for children who play on playground equipment
made from arsenic-treated wood. Recently, EPA announced an agreement
with manufacturers to phaseout consumer use of arsenic treated wood by
the end of this year. Can you update the committee on the progress
being made under this voluntary phaseout? I understand that EPA is in
the process of conducting a risk assessment for arsenic treated wood.
Can you tell us when this risk assessment will be completed?
Response. Registrants of the pesticide requested voluntary
cancellation of most residential uses of chromated copper arsenate
(CCA) in February 2002. The Agency requested public comment on these
requests and after evaluating nearly 7000 comments, the Agency issued
final cancellation orders on March 17, 2003. Product labels must be
amended which will state that treatment of wood for virtually all
residential uses of wood must stop after December 30, 2003, i.e., it
will be illegal to treat wood for these residential uses after this
date.
Even though the Agency reached an agreement with industry to
phaseout the uses of CCA for treating wood used in residential
settings, we are continuing the children's risk assessment process as
well as our review of those remaining uses that are not part of the
voluntary cancellation/use termination. It is important to note also
that EPA has not concluded that CCA-treated wood poses unreasonable
risks to the public for existing structures made with CCA-treated wood.
We are continuing to evaluate potential risks from structures already
in place and will continue to evaluate those remaining uses that are
not included in the voluntary actions.
We are moving forward with our probabilistic assessment of
potential cancer risks to children from exposure to CCA in residential
settings and we are enhancing the information upon which we will base
our decision about such risks. In particular, just recently three
studies have been completed that will greatly benefit our understanding
of the levels of exposure that may be possible from treated wood. The
first study, a ``surface residue bioavailability study,'' examined the
surface residues of arsenic on wood and estimated how much of that
residue can be absorbed by the body from the wood surface. The second
study is a ``soil residue bioavailability study,'' which estimates the
potential arsenic dose absorbed from soil contact and incidental
ingestion through the mouth by children. Those results are being
evaluated. The third study of importance is a ``hand wipe study'' which
estimates the potential exposure to arsenic when the hand comes in
contact with treated wood and correlates this physical activity with
potential exposure to arsenic. Results from these studies have been
submitted to the Agency. These data will be fully evaluated in
developing a draft children's risk assessment which we intend to take
to our Scientific Advisory Panel (SAP) for comment in December. We
expect to release the draft children's risk assessment publicly several
weeks prior to the SAP meeting. We intend to fully consider any
recommendations made by the SAP in finalizing the risk assessment. An
additional study that we are collaborating on with the Commission and
our Office of Research and Development is to develop data on the
effectiveness of sealants in preventing exposure to residues of CCA on
treated wood.
EPA expects to evaluate those uses that are not part of the
voluntary cancellation through the standard 6-phase public
participation process established for pesticide reregistration. This
public process ensures active stakeholder participation throughout and
the Agency intends to include the Commission in our evaluation process.
-