    [Senate Hearing 108-500]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 108-500

                      NOMINATIONS OF THE 108TH CONGRESS,
                                 SECOND SESSION

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

                                    HEARING

                                   before the

                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                          ONE HUNDRED EIGHTH CONGRESS

                                 SECOND SESSION

                                       ON

      STEPHEN L. JOHNSON, TO BE DEPUTY ADMINISTRATOR, U.S. ENVIRONMENTAL
                               PROTECTION AGENCY

      ANN R. KLEE, TO BE GENERAL COUNSEL, ENVIRONMENTAL PROTECTION AGENCY

          CHARLES EDWIN JOHNSON, TO BE CHIEF FINANCIAL OFFICER, U.S.
                        ENVIRONMENTAL PROTECTION AGENCY

      BENJAMIN H. GRUMBLES, TO BE ASSISTANT ADMINISTRATOR FOR WATER, U.S.
                        ENVIRONMENTAL PROTECTION AGENCY

    GARY L. VISSCHER, TO BE A MEMBER OF THE U.S. CHEMICAL SAFETY AND HAZARD
                              INVESTIGATION BOARD

                                   __________

                                 MARCH 31, 2004

                                   __________

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

                        U.S. GOVERNMENT PRINTING OFFICE
    94-600                      WASHINGTON : 2005
    _____________________________________________________________________________
    For Sale by the Superintendent of Documents, U.S. Government Printing Office
    Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800
    Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001

                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                          one hundred eighth congress
                                 second 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, Texas                   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

                                C O N T E N T S

                                  ----------
                                                                       Page

                                 MARCH 31, 2004
                               OPENING STATEMENTS

    Bennett, Hon. Robert, U.S. Senator from the State of Utah........     4
    Bond, Hon. Christopher S., U.S. Senator from the State of
      Missouri.......................................................     7
    Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....     8
    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..     3
    Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......     5
    Wyden, Hon. Ron, U.S. Senator from the State of Oregon...........     6

                                   WITNESSES

    Grumbles, Benjamin H., nominated to be Assistant Administrator
      for Water, U.S. Environmental Protection Agency................    13
        Committee questionnaire......................................    85
        Prepared statement...........................................    84
        Responses by Stephen Johnson to additional questions from:
            Senator Inhofe...........................................    93
            Senator Jeffords.........................................    94
            Senator Cornyn...........................................   107
            Senator Lieberman........................................   107
    Johnson, Charles Edwin, nominated to be Chief Financial Officer,
      U.S. Environmental Protection Agency...........................    11
        Committee questionnaire......................................    75
        Prepared statement...........................................    73
    Johnson, Stephen L., nominated to be Deputy Administrator, U.S.
      Environmental Protection Agency................................     9
        Committee questionnaire......................................    33
        Prepared statement...........................................    31
        Responses by Stephen Johnson to additional questions from:
            Senator Clinton..........................................    56
            Senator Inhofe...........................................    51
            Senator Jeffords.........................................    51
            Senator Lieberman........................................    54
    Klee, Ann R., nominated to be General Counsel, Environmental
      Protection Agency..............................................    10
        Committee questionnaire......................................    59
        Prepared statement...........................................    56
        Responses by Anne R. Klee to additional questions from
          Senator Jeffords...........................................    72
    Visscher, Gary L., nominated to be a member of the U.S. Chemical
      Safety and Hazard Investigation Board..........................    14
        Committee questionnaire......................................   114
        Prepared statement...........................................   112
        Letter, U.S. Chemical Safety and Hazard Investigation Board..   124

               NOMINATIONS OF THE 108TH CONGRESS, SECOND SESSION

                                  ----------

                           WEDNESDAY, MARCH 31, 2004

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
         The committee met, pursuant to notice, at 9:30 a.m. in
    room 406, Senate Dirksen Building, Hon. James M. Inhofe
    (chairman of the committee) presiding.
        Present: Senators Inhofe, Jeffords, Wyden, Thomas, Bond,
    and Crapo.
        Also present: Senator Bennett.

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

        Senator Inhofe. The hearing will come to order.
        We have a policy of starting on time, and it has just
    revolutionized things around here. We are delighted to have all
    of you here. The purpose of today's hearing is to consider the
    President's nominees for four positions at EPA and one Chemical
    Safety Board and Hazard Investigation Board.
        The committee is quite familiar with some of the nominees
    here, including one who is a former EPW staffer, Ann Klee. It
    is nice to have you here. It is nice to know that there is room
    at the top for these people here.
        Stephen Johnson has been nominated as Deputy Administrator
    for the EPA. He has been the Acting Deputy for several months
    now. Mr. Johnson is a longtime EPA employee, both in the career
    role and a political nominee. Three years ago, this committee
    reported Mr. Johnson's nomination to be the Assistant
    Administrator for the EPA's Office of Prevention, Pesticides,
    and Toxic Substances. We are very familiar with Stephen
    Johnson.
        Ann Klee has been nominated by the President to be the
    General Counsel for EPA. Ann is a very familiar face to us.
        She has been around for a long time. We are just delighted
    to have her here.
        Charles Johnson has been nominated to be the Agency's new
    Chief Financial Officer. We have two Johnsons working here,
    unrelated, I think. Mr. Johnson comes to us from Utah where he
    has had a distinguished public and private career. He served as
    the Chairman of the Utah Board of Regents and is a member of
    both the Economic Development Corporation of Utah and Utah's
    Sports Commission. He was Governor Leavitt's Chief of Staff in
    the mid-1990's, and most recently has been the President of the
    Huntsman Cancer Foundation. We welcome you here, Mr. Johnson.
        Ben Grumbles has been nominated for the Assistant
    Administration for the EPA's Office of Water. He is currently
    the Acting Assistant Administrator of that office. He has been
    the Deputy of that office and was the acting head of the
    congressional office at EPA last fall. We have been with each
    other on the tour of Tar Creek, which is the most devastated
    superfund site in America. He took his life into his hands by
    going with us to that place. We have his full commitment to
    seeing that we get things done.
        I also might add that we go way back to the mid-1980's in
    the House Committee. I spent 8 years, as Senator Jeffords and
    Senator Wyden did, in the House of Representatives. I was on
    the Transportation Committee at that time. We got to know each
    other quite well.
        Gary Lee Visscher is before us as the President's nominee
    to be a member of the U.S. Chemical Safety and Hazard
    Investigation Board. Mr. Visscher is currently the Deputy
    Assistant Secretary at the Department of Labor at OSHA, and a
    longtime staffer on the House side working for Congressman Paul
    Henry, then as policy counsel on the committee.
        We welcome all of you to this nomination hearing.
        [The prepared statement of Senator Inhofe follows:]

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

        Good morning. The purpose of today's hearing is to consider the
    President's nominees for four positions at EPA and one for the Chemical
    Safety Board and Hazard Investigation Board. The committee is quite
    familiar with some of the nominees here, including one who is a former
    EPW staffer (Ann Klee). I want to extend a welcome to both you and your
    families here today.
        Steve Johnson has been nominated to be the Deputy Administrator for
    EPA--He has been the Acting Deputy for several months now. Mr. Johnson
    is a long-time EPA employee, both in a career role and as a political
    appointee. Three years ago, this committee reported Mr. Johnson's
    nomination to be the Assistant Administrator for EPA's Office of
    Prevention, Pesticides and Toxic Substances. He was confirmed without
    any opposition. He has strong management experience and a scientific
    background--both of which should serve him well as Administrator
    Leavitt's Deputy.
        Ann Klee has been nominated by the President to be the General
    Counsel for EPA. Ann is a very familiar face to this committee having
    been Chief Counsel to the full committee for both Chairmen Chafee and
    Smith and prior to that serving as Senator Kempthorne's Environment
    Counsel for EPW. She was a very well respected and well liked member of
    the EPW family. We lost her 3 years ago when she left to become
    Counselor and Special Assistant to the Secretary of Interior. She has a
    strong legal background both in the public and private sectors. I am
    pleased to welcome her back to the committee today.
        Charles Johnson has been nominated to be the Agency's new Chief
    Financial Officer. Mr. Johnson comes to us from Utah where he has had a
    distinguished public and private career. He has served as the Chairman
    of the Utah Board of Regents, and as a member of both the Economic
    Development Corporation of Utah and the Utah Sports Commission. He was
    Governor Leavitt's Chief of Staff in the mid-90's and most recently has
    been the President of the Huntsman Cancer Foundation. Mr. Johnson spent
    the first 30 years of his professional life in the accounting industry,
    a very good background to have for a CFO.
        Ben Grumbles has been nominated to be the Assistant Administrator
    for EPA's Office of Water. He is currently the Acting Assistant
    Administrator of that Office. He has been the Deputy of that office and
    was the acting head of the congressional office at EPA last fall. Ben
    has had the pleasure of accompanying me on a tour a of Tar Creek--when
    he joined Administrator Leavitt and myself in northeast Oklahoma last
    Fall. Prior to EPA, Mr. Grumbles was counsel on the House
    Transportation and Infrastructure Committee.
        Gary Lee Visscher is before us as the President's nominee to be a
    Member of the U.S. Chemical Safety and Hazard Investigation Board. Mr.
    Visscher is currently the Deputy Assistant Secretary in the Department
    of Labor at OSHA. Mr. Visscher was a long-time staffer on the House
    side working for Congressman Paul Henry and then as a Policy Counsel on
    the Committee on Education and Workforce.
        Again, I welcome you here today and thank you for your willingness
    to serve.

        Senator Inhofe. Senator Jeffords.

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

        Senator Jeffords. Thank you, Mr. Chairman. Good morning,
    and thank you for all for being here today and for your
    willingness to serve our Nation in these very important
    position at this important time in our history.
        The Chemical Safety and Hazard Investigation Board's
    mission of promoting chemical safety has always been an
    important one. But in the wake of September 11th, we are
    looking at our homeland safety and security with heightened
    scrutiny. The responsibility of the Chemical Safety Board
    members are challenging. I look forward to hearing from you,
    Mr. Visscher, and how you plan to meet these challenges.
        The Environmental Protection Agency has an even broader
    mission of protecting the environment. As each of you are
    looking toward assuming these new challenges, I want you to
    know that there is a major challenge that I have been faced
    with in dealing with your Agency, and that challenge is access
    to information. It is our duty to inquire from time-to-time
    about the Agency's conduct of its mission, the Agency's
    expenditures of funds and the Agency's implementation of
    statutes in his purview, including the development of
    regulations under those statutes.
        I have never been encountered with such bizarre reasons for
    withholding information from Congress as I have encountered
    with this Administration. You may know that I requested
    information on Clean Air Act regulations back in 2001 when I
    was chair of the committee. After numerous discussions about
    the request, which included promises to provide some of the
    information, the Agency suddenly sent a letter to me in 2003
    claiming that I could not have the information because I was no
    longer the committee chair.
        This is what I mean by bizarre. A delay of over 2 years,
    and then a novel and baseless assertion that my party's status
    is the determining factor as to whether I may obtain
    information from the committee for my constituents.
        Again, I want to thank Chairman Inhofe for joining me in
    writing to Administrator Leavitt to express our commonly held
    position that the Agency is obligated to respond to the
    requests from the Chair and Ranking Member, but despite a
    promise from Administrator Leavitt during the EPA budget
    hearing in early March, we have had no response from the Agency
    to either this letter or the outstanding request. This is an
    affront to every member on this committee.
        It is my hope that each of you will help this Senator and
    the committee to fulfill our obligations to the American people
    for complete information regarding the health and safety of our
    environment.
        I look forward to working with you as we go forward into an
    important part of our history in these important areas.
        Thank you, Mr. Chairman.
        [The prepared statement of Senator Jeffords follows:]

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

        Good morning, and thank you all for being here today and for your
    willingness to serve our country in these important positions.
        The Chemical Safety and Hazard Investigation Board's mission of
    promoting chemical safety has always been an important one, but in the
    wake of September 11th, we are looking at our homeland safety and
    security with heightened scrutiny. The responsibilities of the Chemical
    Safety Board members are challenging and I look forward to hearing from
    you, Mr. Visscher, on how you plan to meet those challenges.
        The Environmental Protection Agency has an even broader mission--
    protecting the environment. As each of you are looking toward assuming
    these new challenges, I want you to know that there is a major
    challenge that I have been faced with in dealing with your agency, and
    that challenge is access to information.
        It is our duty to inquire from time-to-time about the Agency's
    conduct of its mission, the Agency's expenditure of funds, and the
    Agency's implementation of statutes in its purview, including the
    development of regulations under those statues. I have never before
    encountered such bizarre reasons for withholding information from
    Congress as I have encountered from this Administration.
        You may know that I requested information on Clean Air Act
    regulations back in 2001 when I was Chair of this committee. After
    numerous discussions about this request which included promises to
    provide some of the information, the Agency suddenly sent a letter to
    me in 2003 claiming that I could not have the information because I was
    no longer a committee Chair. This is what I mean by bizarre a delay for
    over 2 years, and then a novel and baseless assertion that my party
    status is the determining factor as to whether I may obtain information
    for this committee and for my constituents.
        Again, I want to thank Chairman Inhofe for joining me in writing to
    Administrator Leavitt to express our commonly held position that the
    Agency is obligated to respond to requests from each the chair and the
    ranking member. But despite a promise from Administrator Leavitt during
    our EPA budget hearing in early March, we have heard no response from
    the Agency to either this letter or the outstanding requests. This is
    an affront to every member on this committee.
        It is my hope that each of you will help this Senator and this
    committee fulfill our obligations to the American people for complete
    information regarding the health and safety of our environment.
        I look forward to hearing from you this morning.

        Senator Inhofe. Thank you, Senator Jeffords.
        I know that Senator Bennett is here and wanted to introduce
    Charles Johnson; is that correct, Senator Bennett?
        Senator Bennett. Yes.
        Senator Inhofe. I do not know if there will be other
    opening statements. If so, we are going to confine them to 3
    minutes apiece. Would you rather wait for that?
        Senator Bennett. I am obviously at your mercy.
        Senator Inhofe. That is not what I asked you.
        [Laughter.]
        Senator Inhofe. Besides that, we know better.
        Go ahead and introduce him right now.

     STATEMENT OF HON. ROBERT BENNETT, U.S. SENATOR FROM THE STATE
                                OF UTAH

        Senator Bennett. Mr. Chairman, I appreciate your courtesy
    and that of the committee in allowing me to intrude in this
    fashion. You have Charlie Johnson's biography before you. I
    will not read through it again and tell you all of the things
    that he has done.
        I sat here at this table when Governor Leavitt was
    nominated to be the Administrator of EPA and described what an
    excellent Administrator he was and what a superb Governor he
    had been. One of the reasons he was so successful as Governor
    is because Charlie Johnson was his Chief of Staff. He brings a
    calmness, a sense of maturity, a sense of stability, and an
    aura of ``We can get this done. Do not panic, I will take care
    of it. Yes, we can work this through.'' He brings that kind of
    aura to his position.
        He left Governor Leavitt to go to work for the Huntsman
    Foundation which is one of the leading philanthropic
    organizations in the State of Utah, took that same kind of
    calm, professional, ``We can get it done,'' ability with him
    into that position.
        I believe Charlie thought that he was out of the maelstrom
    of political activity and into the somewhat more tranquil
    waters of philanthropy and good works when Governor Leavitt
    decided that he desperately needed Charlie's ability and
    expertise back here in Washington. Charlie has answered the
    call and has given up the tranquillity of that kind of life to
    be thrown into life here in Washington again to give the kind
    of stability and wisdom that I think any Administrator of EPA
    would be delighted to have at his elbow.
        I want to share that with the committee to let you know
    that this is not just a very competent man with a strong resume
    and great abilities. He brings a particular flavor to public
    service that I am sure that Governor Leavitt, now Administrator
    Leavitt, will very much appreciate, and that the country will
    benefit from.
        I give this committee my highest personal recommendation to
    Charlie's nomination and ask you to give it every possible
    consideration in terms of both time, as well as support in
    getting it through in an expeditious way as possible.
        Senator Inhofe. Thank you very much for that excellent
    introduction, Senator Bennett. You may be excused if you would
    like to be.
        Senator Bennett. I will relinquish my seat.
        Senator Jeffords. May I just say that I really appreciate
    the comments that you have given me, and as my seat-mate for
    many years, I have come to know you and admire all you have
    done. I now look forward with great enthusiasm to Mr. Johnson
    being in that office.
        Senator Bennett. Thank you, Senator Jeffords. I appreciate
    that tremendously.
        Senator Inhofe. Thank you very much, Senator Bennett.
        I am not encouraging opening statements, but if anyone
    would like to have an opening statement, confine it to 4
    minutes, if you would. Proper order would be Senator Thomas.

     OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
                            STATE OF WYOMING

        Senator Thomas. Thank you, Mr. Chairman. I can beat the 4
    minutes.
        I appreciate all of you being here and what you are willing
    to do. I have just a couple of general comments.
        One, we need to find ways to make this system work more
    quickly and work better, not necessarily to change the rules,
    but to be able to accomplish it in less time. I hear that
    constantly in Wyoming.
        We need local input in these decisions, as we do in any
    other Federal Government decisions because that is very
    important. I think one of the other things that we find often
    happens is BLM will make their study and complete their study,
    and then suddenly EPA has to do it over again. They ought to be
    done simultaneously so that when it is over and there is a
    decision, all the agencies ought to be prepared to let that go
    forward.
        Finally, I hope that we do not move into the area of
    managing based on threats and lawsuits. Lawsuits are going to
    be there, but that should not affect the decisions we make.
        As a matter of fact, we have a bill in now that is going to
    have something to do with venue shopping. Maybe these lawsuits
    can be in the venue where the problem exists. We hope that can
    happen.
        Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Thomas.
        Senator Wyden.

      OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM THE
                            STATE OF OREGON

        Senator Wyden. Thank you, Mr. Chairman.
        Mr. Chairman and colleagues, I do not think there are many
    tasks around here that are more important than our ability to
    do bipartisan, responsible oversight of programs that we have
    enacted that we have passed into law.
        I regret to say, and it touches on what Senator Jeffords
    has talked about, I think the Administration has shut down the
    capacity to do responsible, bipartisan oversight over the
    programs at the Environmental Protection Agency. For several
    years, the Agency has claimed that it can ignore requests for
    information from Senators on the committee unless the
    information is requested by the Chairman. Basically it is as if
    every request has to be made under the Freedom of Information
    Act.
        I cannot find any precedent for this position. I cannot
    find any basis in law for the Agency's position. In fact,
    legislative history makes clear that the Freedom of Information
    Act was never intended to justify withholding information from
    Congress. Controlling Court decisions have ruled that all
    Members of Congress have constitutionally recognized rights to
    seek information from executive branch agencies.
        I think we are in a very unfortunate position this morning.
    We have five nominees. They are all, as far as I can tell, very
    decent people. They have loving families.
        They are anxious to be able to go on with their business.
        But I cannot support the nominees that are here today until
    we work this out on a bipartisan basis. I am interested in
    working with my friend of almost 20 years, Chairman Inhofe, to
    get this resolved. Congress cannot do oversight here.
        That is just a fact. We have to get to the bottom of this.
        We have to find out what the precedent is. I do not believe
    there is any. I certainly have not seen anything like this in
    my time in serving in both the other body and in this body.
        I regret to say that I cannot support the nominees that are
    before us today until we resolve this issue which I believe for
    all practical purposes has shut down the capacity of this
    committee to do bipartisan oversight of Government programs. My
    constituents do not want us to pass new laws and new programs.
    They want us to take out a sharp pencil and make the programs
    that are on the books work. We cannot make programs work if, in
    effect, we are getting stonewalled constantly in our requests
    for information and basically are in a position of not getting
    unless anything unless you file a Freedom of Information Act
    request.
        I want to repeat again, Mr. Chairman, my desire to work
    with you so that on a bipartisan basis we get this solved. I
    asked Ms. Klee yesterday, who I know to be a very capable
    person, whether given her history with Senator Chafee, for
    example, whether there was any precedent for this. I cannot
    find any. I think we have to address this issue. It cannot be
    allowed to linger any longer.
        I thank you for the opportunity to speak.
        Senator Inhofe. Thank you, Senator Wyden. I am sure you
    will get any information that you desire that is appropriate.
        We will be working together on that.
        Senator Bond.

      OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, U.S. SENATOR
                       FROM THE STATE OF MISSOURI

        Senator Bond. Thank you very much, Mr. Chairman.
        I appreciate your holding the hearing. The President's
    nominees for the EPA's Deputy Administrator, General Counsel,
    Chief Financial Officer, and Assistant Administrator for Water,
    and a member of the Chemical Safety Board, I think is a fine
    slate of nominees. One is a career employee of the EPA since
    1979. Two have devoted their entire career to environmental
    protection and water quality, and two others have extensive
    backgrounds that will assure their success in their new
    positions.
        I have had the pleasure of working with several of them,
    talking about the need for water infrastructure, talking about
    the whole range of EPA programs, and knowing that one had the
    experience on this committee of shepherding through what would
    have been a very productive improvement in the Endangered
    Species Act, perhaps she can give us some guidance on getting
    that long overdue and badly needed job done.
        I think the best thing we can do for the environment is to
    get these EPA nominees confirmed. The Agency needs the
    leadership they can provide and any delay in confirming these
    will only hurt the environment.
        So I hope my colleagues will join with us to approve the
    nominations without delay and remove any roadblocks that may be
    place and vote to confirm the nominations at the earliest
    possible time.
        I thank you, Mr. Chairman.
        [The prepared statement of Senator Bond follows:]

         Statement of Hon. Christopher S. Bond, U.S. Senator from the
                               State of Missouri

        Thank you, Mr. Chairman, for holding this hearing to review the
    President's nominees for EPA's Deputy Administrator, General Counsel,
    Chief Financial Officer, Assistant Administrator for Water, and Member
    of the Chemical Safety Board.
        This is a fine slate of nominees. One is a career EPA employee
    since 1979. Two have devoted their entire career to environmental
    protection and water quality. Two other have extensive backgrounds that
    will ensure their success in their new positions.
        The best thing we can do for the environment is get these nominees
    confirmed. EPA needs the leadership it deserves. The environment
    deserves a fully staffed and aggressive EPA. Any delay in confirming
    these nominees will only hurt the environment.
        So, I urge my colleagues to approve these nominations without
    delay, remove any roadblocks which they may have in place, and vote to
    confirm these nominations at the earliest point possible. Thank you.

        Senator Inhofe. Senator Crapo.

     OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM
                           THE STATE OF IDAHO

        Senator Crapo. Thank you very much, Mr. Chairman. I will be
    brief.
        I think we have a very strong and capable group of nominees
    before us today. I have met with them. They are very capable of
    doing the job that the President has asked them to do. I
    believe it is important for us to move ahead expeditiously with
    their nominations and with the confirmation.
        I look forward to the hearing today. Thank you.
        Senator Inhofe. Thank you, Senator Crapo.
        First of all, I know there are families here. Mr. Johnson,
    I think your grandson has already gone, but if any of you at
    this point would like to introduce your families, you are
    certainly welcome to do that.
        Mr. Stephen Johnson. Thank you, Mr. Chairman.
        I would like to introduce a number of members of my family
    who were able to be here today. My mother-in-law and father-in-
    law, John and June Jones; a close family friend for many years,
    Zona Chapman; my father, Bill Johnson; my wife, Debbie; our
    son, Matthew; our daughter Carrie; our son-in-law, Jeremy
    Jenkins; and, as you noted, Mr. Chairman, the most important
    person in our entire family, our one and only grandchild, our
    grandson, Carter Paxton Jenkins.
        Senator Inhofe. Good. Thank you very much.
        Ann.
        Ms. Klee. Thank you, Mr. Chairman.
        Compared with Mr. Johnson, I feel like I have a very small
    family. I have brought my husband, John Macleod, with me.
        Senator Inhofe. Good.
        Mr. Charles Johnson.
        Mr. Charles Johnson. Mr. Chairman, I have my wife, Susanna
    Johnson. She is my biggest cheerleader, and I am delighted to
    have her with me today.
        Senator Inhofe. Thank you very much. It is nice to have her
    here.
        Mr. Grumbles.
        Mr. Grumbles. Mr. Chairman, my wife, Karen Grumbles, is
    here as well.
        Senator Inhofe. All right, good.
        Mr. Visscher.
        Mr. Visscher. Mr. Chairman, my family was not able to be
    here.
        Senator Inhofe. I see. All right. That is fine.
        Let us go ahead and start with opening statements. We would
    ask you to try to confine them to 5 minutes. Your entire
    statement will be made a part of the record.
        We will start with you, Mr. Johnson.

        STATEMENT OF STEPHEN L. JOHNSON, NOMINATED TO BE DEPUTY
          ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

        Mr. Stephen Johnson. Thank you, Mr. Chairman.
        It is certainly an honor and a privilege to be here today.
    I enjoyed the opportunity to meet with many of you over the
    past number of weeks.
        As I introduced my family members, it is always exciting
    for all of us and certainly for them to enjoy with me the honor
    and privilege of being able to be here today.
        I want to make a special note of my father who spent over
    30 years of public service to the Department of Navy. At the
    time I did not realize, but he was instilling in me an
    important legacy of the importance and the significance of
    public service in which I am eternally grateful. I find myself
    sitting here, a capstone of my career and our family's
    commitment to public service.
        These are indeed exciting times at EPA. We are thrilled to
    have Administrator Leavitt. We are all excited to work with him
    as we deal with the challenges of the Environmental Protection
    Agency. As he joined the Agency, he identified four
    cornerstones toward a better way of improving environmental
    protection--that of collaboration, harnessing technology,
    market incentives, and focusing on results.
        Those cornerstones are all ones that through my experience
    through the years, and certainly my own philosophy, that I
    highly support.
        I believe that by using those cornerstones we can increase
    the velocity of environmental progress, while maintaining our
    economic competitiveness, an important feature.
        Having spent 20-plus years both in industry and government,
    I think that my experiences make me well suited for this
    particular position. My operating philosophy, along with these
    cornerstones, includes the importance of sound science, the
    importance of communication and involvement of all stakeholders
    in our process, the importance of building and maintaining
    relationships, and looking at our work force, making sure that
    we have a strong, professional, and diverse work force at EPA.
        Throughout my career and as the Assistant Administration of
    the Office of Prevention, Pesticides, and Toxics, I certainly
    worked hard to do all of those things. I certainly look forward
    to working with you, Mr. Chairman, and members of the committee
    on a bipartisan basis to advance the mission of protecting the
    environment on behalf of the American people.
        Thank you, Mr. Chairman. I would ask that my full statement
    be placed in the record in its entirety.
        Senator Inhofe. Without objection, so ordered.
        Thank you, Mr. Johnson.
        Ms. Klee.

      STATEMENT OF ANN R. KLEE, NOMINATED TO BE GENERAL COUNSEL,
                    ENVIRONMENTAL PROTECTION AGENCY

        Ms. Klee. Thank you, Mr. Chairman, Senator Jeffords, and
    members of the committee. I want to thank you for providing me
    the opportunity to appear before you today. It is a tremendous
    honor for me to be here as the President's nominee for General
    Counsel of the Environmental Protection Agency.
        On a personal note, it is a great pleasure to be back at
    Counsel table.
        I know that I will face a daunting set of challenges should
    I be confirmed by the Senate. EPA deals with any number of very
    complex and contentious policy, legal, and practical issues
    every day. The Office of General Counsel plays a critical role
    in fulfilling the Agency's mission of protecting human health
    and safeguarding the environment by ensuring that its
    environmental policies and programs are supported by the law
    and are fully and fairly implemented.
        That is an awesome responsibility, and one that I would
    take very seriously.
        I am looking forward to joining Administrator Leavitt and
    his team as he leads the Agency in exciting new directions,
    using technology, markets and collaborations to get better
    environmental progress done more quickly.
        I believe that my experience over the past 18 years as an
    environmental lawyer in private practice, as a staffer on the
    Hill, and most recently in the Administration at the Department
    of Interior, will allow me to provide Administrator Leavitt and
    the program offices with sound, unbiased, legal analysis to
    achieve the Agency's mission. Throughout my career I have
    strived to think independently, respect the rule of law, act in
    accordance with the highest ethical standards, and use sound
    judgment and common sense.
        I have represented companies; I have sued polluters; and I
    have negotiated complex settlements with multiple parties.
        I know from this experience that the issues that we are
    dealing with today, and that this committee is dealing with,
    are complex. They have nuances. They are not black and white.
    It pays to listen to and respect those who have differing
    views.
        Let me give you a couple of examples. My experience on the
    Hill underscored for me the importance of collaboration and
    seeking consensus-based solutions. I was lucky enough to work
    on the Safe Drinking Water Act Amendments while I was staffing
    Senator Kempthorne and had an opportunity to work with many of
    the staff who are here in the room today.
        That bill was passed by the Senate in 1995 by a vote of 99-
    0, and signed into law a year later by President Clinton.
        That law improved public health; it reduced unnecessary
    costs; it encouraged voluntary measures to prevent
    contamination of drinking water supplies; and it incorporated,
    for the first time, benefit cost principles. It was innovative
    and it addressed real problems. To my mind, that law
    demonstrated that dialog, partnerships, and innovative thinking
    are really the path to better environmental protection.
        If I am confirmed, I would hope to continue a collaborative
    relationship with the committee and its staff as we work
    through the challenging legal issues that we face today.
        For the past 3 years, I have had the great pleasure of
    serving at the Department of the Interior as Counselor to
    Secretary Gale Norton. I saw every day how collaboration and
    partnerships can achieve real results on the ground. I was
    lucky enough to lead the Department's Everglades Team, a team
    to restore the Florida Everglades, and I am particularly proud
    of what we were able to accomplish in just the past 3 years by
    working with the State and local governments, environmental
    organizations, and the private sectors.
        As a result, we now have a legal framework in which to
    implement individual restoration projects, we acquired and
    preserved thousands of acres of Everglades habitat; and we
    began construction this past year on the first Everglades
    Restoration Project.
        I use these examples from my previous lives because I think
    they illustrate how I approach environmental issues. I think
    that is important for you to understand. I believe strongly in
    the framework of our environmental laws and in their
    enforcement. At the same time, though, I really believe that we
    should always look for opportunities to do better, to go beyond
    what the law requires.
        My experience has always been that communities, businesses,
    and individuals, if given the chance and a little bit of
    encouragement, will step up to the plate and come up with a
    better way of protecting the environment. My job as a lawyer is
    to help make that happen.
        Finally, I would like to acknowledge that I know that if I
    am confirmed I will not be alone in helping advance the
    Agency's mission within the Office of General Counsel. I have
    only been at EPA a week, but I have already seen that I will be
    surrounded by dedicated, talented, and creative lawyers in the
    office. I look forward to having the opportunity to working
    with them, as well as the rest of the members of Administrator
    Leavitt's team.
        Thank you, Mr. Chairman, and members of the committee. I
    would be happy to answer any questions. I would ask that my
    full statement be placed in the record in its entirety.
        Senator Inhofe. Without objection, so ordered.
        Thank you, Ms. Klee.
        Mr. Charles Johnson.

       STATEMENT OF CHARLES EDWIN JOHNSON, NOMINATED TO BE CHIEF
        FINANCIAL OFFICER, U.S. ENVIRONMENTAL PROTECTION AGENCY

        Mr. Charles Johnson. Thank you, Mr. Chairman, Senator
    Jeffords, and members of the committee. I am delighted to have
    this privilege. Let me publicly thank Senator Bennett first,
    for appearing on my behalf, and thank each of you for allowing
    me to appear here today.
        I consider this a rare privilege, and if the nomination
    continues as set forth by President Bush, it will be a real
    pleasure for me to again join Michael Leavitt, the present
    Administrator, in this position. I am in your hands, and I
    understand that.
        Let me also thank you and your staff. I have had meetings
    with each of you, and I have been treated very well.
        I want you to know that I will reciprocate that if, indeed,
    my nomination goes forward and I am confirmed.
        The Office of the Chief Financial Officer is a very
    fundamental office for the success of the Agency. This is all
    about trust. It is about respect. It is about fairness. It is
    about planning. I consider the office to be an office that is
    essential for future planning that will aid management in any
    plans that this Agency will set forth.
        I have had 31 years in the practice of public accounting.
        I served as a member of the Board of Directors of one of
    the largest CPA firms in the world. I think I have demonstrated
    my financial capabilities and also my leadership capabilities.
        I joined the State of Utah as the Director of the Office of
    Planning and Budget, and then subsequently as Mike Leavitt's
    Chief of Staff. I have great respect for the role of government
    and its functionings in our world.
        I have learned much from these past experiences. I think I
    have developed my financial skills and leadership abilities
    from my work in public accounting. From my time in government,
    I have learned that you have to be up-front, you have to
    provide the information that you are asked for, and you have to
    be transparent in your dealings.
        From my service as chair of the Board of Regents in Utah, I
    have learned that you must continually put money into projects
    and into research and guard against excessive administrative
    costs. From my day-to-day dealing with citizens, I have learned
    that taxpayers will allow us to use their funds only if they
    believe that we are doing it to promote the common good and to
    help citizens. We are all taxpayers. We all recognize our
    accountability to taxpayers.
        So the past has been an excellent preparation for appearing
    before you today. That being said, I know that the broad array
    of financial issues confronting EPA are more than just
    complicated financial questions. They are the fundamental
    questions about the stewardship of our air, our land, and our
    water. I believe that our fiduciary responsibility and that
    stewardship link hand-in-hand. I intend to continue to make
    sure that we link them.
        It is clear to me from my short period of time with EPA
    that we have some very large and complex financial issues. It
    is also clear to me that these issues will not be solved by EPA
    alone, but it will take the collaboration of the
    Administration, the collaboration of Congress, and the
    collaboration of EPA to solve these very large financial
    issues. I want to serve the President, to serve the
    Administrator, and to serve the American people in a
    collaborative role. I want to work with you and your staffs in
    that collaboration.
        I would also like to say what a pleasure it will be to
    serve with the men and women that I have met at EPA. They are
    remarkable. It has truly been an amazing experience to meet the
    people. They are hard working. They are dedicated. They are
    passionate. This is a group of people that I want to spend some
    time with. I am grateful for this opportunity.
        In the grand scheme of things this is just a very small
    moment in time. But, Mr. Chairman, I have spent a lifetime
    building trust, confidence, and respect just for moments like
    this. I want you to know that if I am fortunate enough to have
    this nomination go forward, and if I am confirmed, I look
    forward to serving the people of the United States.
        I again thank you and the members of this committee for
    this opportunity. I will be happy to answer questions. I would
    ask that my full statement be placed in the record in its
    entirety.
        Senator Inhofe. Without objection, so ordered.
        Thank you, Mr. Johnson.
        Mr. Grumbles.

     STATEMENT OF BENJAMIN H. GRUMBLES, NOMINATED TO BE ASSISTANT
     ADMINISTRATOR FOR WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY

        Mr. Grumbles. Thank you, Mr. Chairman. As a former
    committee staffer, I learned early on the wisdom of submitting
    full and complete statements for the record. I will briefly
    summarize the major points.
        The most obvious point is how honored and privileged I am
    to be able to appear before you Chairman Inhofe, Senator
    Jeffords, and distinguished members of the committee to
    describe who I am and talk about the priorities, the
    opportunities, and the challenges in serving as Assistant
    Administrator for the Office of Water.
        As you noted, I have a background that begins working on
    Capitol Hill in water and infrastructure, working on a
    bipartisan basis, forging together sustainable solutions--Clean
    Water Act, the Safe Drinking Water Act, and the Water Resources
    Development Act--all with the goal of protecting the Nation's
    waters, providing for infrastructure and jobs, and doing so in
    a way that protects the competitiveness of this country and
    also meets the fundamental objective and desire to keep
    America's waters clean, safe, and secure.
        I joined EPA in February 2002, and what an honor and
    education that has been so far. I joined as the Deputy
    Assistant Administrator for the Office of Water. I have been
    working in that capacity. I did have the opportunity to step in
    for 4 months and serve as the Acting Associate Administrator
    for the Congressional Affairs Office, which has also been a
    great experience. Now I am Acting Assistant Administrator in
    the Office of Water.
        Mr. Chairman, and Senator Jeffords, you all know full well
    of the great progress that has occurred on the waterfront, so
    to speak, in this country over the last 30 years, and you also
    know full well the many challenges that remain. We all know
    that many of them relate to not so much the low-hanging fruit,
    but the more complex issues associated with non-point source
    pollution associated with wet weather flows. There is also the
    objective of providing regulations under the Safe Drinking Act
    that protect human health, yet are also affordable and
    achievable.
        I look forward to carrying out Administrator Leavitt's
    vision in his 500-Day Plan which focuses on increased
    monitoring for water, ensuring no net loss of wetlands, and
    restoring impaired watersheds and coastal waters. One area of
    particular emphasis for me with respect to conservation is
    water conservation. I know full well that EPA does not have the
    statutory authority, nor does it seek that authority, to
    regulate water quantity issues.
        But what I am talking about is the ability to provide
    voluntary information and leadership to give the tools to help
    encourage water use efficiency and water conservation to help
    reduce the infrastructure funding gap when it comes to water
    and waste water facilities. One of the areas that gives me
    great pride and interest is pursuing a Water Star program
    modeled on the Energy Star program where we provide, on a
    voluntary basis, standards for water efficient plumbing and
    appliances to help reduce the costs, protect the environment,
    and save jobs.
        The last thing I would simply say, Mr. Chairman, is that I
    feel indebted to my family and friends for all of the support
    they have given over the years, and continue to give. Managing
    water is a team effort. I really hope that I have the
    opportunity to serve as the Assistant Administrator for the
    Office of Water.
        I look forward to any questions you or your colleagues may
    have. Thank you. I would ask that my statement be placed in the
    record in its entirety.
        Senator Inhofe. Without objection, so ordered.
        Thank you, Mr. Grumbles. I will look forward to working
    with you, as we have done for the last 18 years.
        Mr. Visscher.

    STATEMENT OF GARY L. VISSCHER, NOMINATED TO BE A MEMBER OF THE
          U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

        Mr. Visscher. Thank you, Mr. Chairman, Senator Jeffords,
    and members of the committee. I appreciate very much this
    opportunity to testify and to appear before your committee
    today.
        If confirmed by the Senate, I look forward to serving on
    the Chemical Safety Board. I believe I can help the Board to
    play an effective role in the continued improvement of chemical
    safety in this country. I believe in the Chemical Safety
    Board's mission, which is to prevent chemical accidents and to
    save lives through the thorough investigation of accidental
    chemical accidents, research into hazards that are related to
    releases or potential releases, and recommendations and
    interactions with government agencies, industry and labor, and
    others to prevent future individual chemical accidents from
    occurring.
        I might mention the presence in the room today of several
    people from the Chemical Safety Board, including Chairperson
    Carolyn Merritt, and well as Member John Bresland. I appreciate
    their coming.
        Since 2001, I have served as Deputy Assistant Secretary for
    the Occupational Safety and Health Administration at the U.S.
    Department of Labor. As Deputy at OSHA, I have been involved in
    the full range of occupational safety and health issues that
    come before the Agency, including numerous issues involving
    chemical processing and chemical plant safety.
        Prior to my current position, I served as Vice President
    for Employee Relations at the American Iron and Steel
    Institute, where I worked with our member companies on a
    variety of safety and health issues.
        From 1999 through 2000, I served as one of three
    Commissioners on the Occupational Safety and Health Review
    Commission, for which I was confirmed by the Senate in 1999.
    Prior to that, I worked for about 15 years in congressional
    staff positions, first as Legislative Director to former U.S.
    Representative Paul Henry, and subsequently on the staff of the
    House Committee on Education and the Workforce.
        As happens to many of us who work in congressional staff
    positions, my long-term interest and involvement in workplace
    safety and health came, to some extent, as a result of the
    involvement and expertise of the Member of Congress on whose
    staff I began working. Senator Jeffords may particularly
    recall, because I think you were instrumental in Congressman
    Henry assuming the position, Representative Henry served as
    ranking member on the subcommittee with jurisdiction over
    workplace safety and health issues, a position he held from
    1987 to the year in which he died in 1993.
        Through helping to prepare him and other subcommittee
    members and committee members for hearings and working on the
    issues that came before the subcommittee, I gained a level of
    expertise in many of the technical as well as policy issues.
        If getting involved in the area came by way of
    congressional staff duties, I also have found that working in
    workplace safety and health to be both challenging and
    rewarding, and if confirmed by the Senate, I look forward to
    serving on the Chemical Safety Board in order to continue to
    contribute in some small way, at least, to the effort of making
    our workplaces and our communities safer.
        A major role and function of the Chemical Safety Board is
    the investigation of chemical releases and incidents in order
    to identify what happened and, as much as possible, why it
    happened, and to recommend steps that might prevent such
    accidents from happening again.
        To carry out these functions, one must be not only well
    versed in the technical and legal aspects of chemical safety
    but also be fair and objective. Each of the jobs and positions
    I have had in the safety and health area has involved oversight
    and review of workplace accidents. I believe I have a
    reputation for being both thorough and fair. I certainly will
    carry these values with me in carrying out my responsibilities
    on the Chemical Safety Board.
        Mr. Chairman, I appreciate very much this opportunity to
    testify before you and for your consideration of my nomination.
    I look forward to answering any questions you may have. I would
    ask that my full statement be placed in the record in its
    entirety.
        Senator Inhofe. Without objection, so ordered.
        Thank you, Mr. Visscher, for an excellent opening
    statement.
        First, I have two questions to ask each one of you. We will
    start with Stephen Johnson and go down individually. These are
    required.
        No. 1, are you willing to appear at the request of any duly
    constituted Committee of Congress as a witness?
        Mr. Stephen Johnson. Yes.
        Ms. Klee. Yes.
        Mr. Charles Johnson. Yes.
        Mr. Grumbles. Yes.
        Mr. Visscher. Yes.
        Senator Inhofe. No. 2, do you know of any matters which you
    may or may not have thus far disclosed which might place you in
    any conflict of interest if you are confirmed to this position?
        Mr. Stephen Johnson. No.
        Ms. Klee. No.
        Mr. Charles Johnson. No.
        Mr. Grumbles. No.
        Mr. Visscher. No.
        Senator Inhofe. Thank you very much.
        Mr. Stephen Johnson, as I discussed in our concerns, there
    are some concerns that I have. The Spill Prevention Control and
    Countermeasures Rule that was finalized last year and extended
    for 18 months, my concern has been for groups such as airports,
    farmers, and others, by using the collective amount of fuel
    being stored. It is something that has really distressed me. I
    had occasion to talk with the American Farm Bureau yesterday.
    They are also concerned about it.
        I guess the question I would have is this. I had sent you a
    letter asking: Would you delay the compliance deadline until we
    can address these problems so that we can work on them?
        Mr. Stephen Johnson. Mr. Chairman, yes, with regard to the
    Spill Prevention Control and Countermeasures Rule, in fact
    today we are hosting a public meeting with interested parties
    to get feedback about the issues and discuss the
    implementation.
        We, too, share your concerns, making sure that the affected
    parties can move in an appropriate way and a time for
    implementation. We are committed to working with you and other
    members of the committee, Senator Jeffords and others, to make
    that happen.
        Senator Inhofe. Or if that could not happen, maybe to
    consider a new rulemaking process.
        Mr. Stephen Johnson. Certainly we will take that into
    consideration. I should note that it is certainly my
    understanding that an agreement has been reached. I believe you
    are certainly aware that there was a lawsuit and that we have
    entered into an agreement with the American Petroleum
    Institute, the Marathon Oil Company, and the Petroleum
    Marketers Association of America to resolve all issues, except
    for one during the litigation. That one remaining issue will
    continue.
        But more importantly, as your question indicated, we are
    committed to working with you and the major stakeholders to
    make sure that it can be done in an effective and appropriate
    way.
        Senator Inhofe. Good. Thank you very much.
        Mr. Charles Johnson, you are probably aware, and maybe you
    even watched some of the transcript of our hearing that we had
    concerning some of the discretionary grants. We really want to
    look at those. I would observe that as long as I have been
    here, and that is for 10 years on this committee, this subject
    has come up and nothing has been done. We made it very clear
    during this hearing that we plan to do something.
        In looking at the discretionary grants, can we have your
    assurance and of your full cooperation in helping us resolve
    these problems that have not been resolved in the last few
    decades?
        Mr. Charles Johnson. I think there are two issues with
    grants. One is the awarding of grants, and the other is the
    management of grants after they are awarded. Both need
    attention. The Chief Financial Office has been involved more in
    the management of grants rather than the awarding of grants.
    But I think we need a better link between those two functions.
    It is an item that I have noted for followup, if indeed I am
    confirmed.
        Senator Inhofe. But one of my concerns is the legal
    compliance, which I think has not been adhered to, and also the
    fact that we had a commitment in our previous hearing that full
    disclosure would be very helpful in two ways: No. 1, in what
    grants are available, and No. 2, to whom these grants were
    given and for what purpose, actually to be displayed on a
    website. Do you have a problem with that?
        Mr. Charles Johnson. Not a problem. I think the more that
    we can be forthcoming and open about process and allow people
    to have that privilege, the better off we all are.
        Senator Inhofe. That is all I would ask.
        Ms. Klee, what, in your background do you have that you
    think that you can draw on to help you in this position?
        Ms. Klee. Senator, I think if I were confirmed, I would
    bring three qualities to the job. First of all, 18 years of
    experience as an environmental lawyer, and because of that
    experience I feel entirely comfortable thinking independently
    and expressing my views. I think anyone who knows me will say
    that no one has ever accused me of being a shrinking violet.
        I think the second thing is that I understand the
    importance of the relationship between Congress and the
    Administration. We need to work together. I think I could help
    on that front as well.
        Then third, I would say that my experience has given me a
    broader perspective on environmental issues. I have worked on a
    number of issues and seen different perspectives and different
    views. That has made me a better advocate for my client, which
    in this case would be EPA, particularly in a D.C. environment.
    But it has also made me more open-minded.
        Senator Inhofe. Thank you, Ms. Klee.
        Senator Jeffords.
        Senator Jeffords. Thank you, Mr. Chairman.
        Steve Johnson, the United States reportedly is lobbying
    aggressively against an European Union Chemical proposal that
    is expected to save thousands of lives each year by addressing
    the lack of basic safety data, and about the vast majority of
    chemicals in use today.
        The U.S. position mirrors the concerns raised by the
    chemical manufacturers. You personally voiced some of these
    concerns during an official visit to Europe in December 2002.
    In developing the U.S. position, did EPA evaluate the potential
    health and environmental benefits of gathering this hazard
    data?
        Mr. Stephen Johnson. Senator Jeffords, did we do a complete
    or thorough evaluation of the potential benefits?
        No, we did not. What led me to make the comments that I did
    is this. At that point it was called the European White Paper,
    which is now referred to as the Reach Regulatory Program for
    Existing Chemicals.
        There were really several aspects of the proposal that were
    troublesome to those of us in the United States and from a
    science standpoint. One was the full reach of the then-called
    White Paper, including chemicals such as one of the examples of
    the polymers that are in this pen. My concern, both from the
    United States standpoint, and from a worldwide standpoint, is
    that we really did not spend our precious time and energy and
    resources focusing on polymers. There were other chemicals that
    we needed to draw our attention to. That is just an example of
    one of the problems.
        Since that time, they have corrected and are focusing on
    what we believe are the more appropriate chemicals of concern.
        The second is that depending upon how you count them, in
    the European arena, there are some 64,000 industrial chemicals
    on the market. In the United States there is approximately
    90,000 industrial chemicals on the market, part of the
    inventory. We have to start someplace. What should we focus on?
        In the United States we decided to focus on the 2,000 high
    protection volume chemicals, those that are produced in excess
    of a million pounds, as well as those that may have a high
    exposure to children, some 20-something. So our principal
    message was that we think that worldwide that we need to focus
    on those high-priority chemicals. Worldwide companies have
    already committed to developing these data. We ought to be
    focusing our worldwide attention on evaluating those rather
    than requiring data for such things as polymers.
        So it was really a prioritization on the focus on the
    world's limited resources.
        Senator Jeffords. There was also a comment on the role of
    the EPA in developing the U.S. position and the extent to which
    environmental and public health groups were consulted during
    this process.
        Mr. Stephen Johnson. In fact, I did meet both domestically
    as well as internationally with several of the public interest
    groups to share the same concerns which I have just raised with
    you, and to make sure to focus our resources to ensure that we
    are providing public health and environmental benefit, and we
    think focusing on those that are producing high volumes, those
    that may have exposure to children, are the right focus of our
    resources. In fact, we really did not get any disagreement
    among the environmental public interest community.
        Senator Jeffords. Ms. Klee, imagine that you are defending
    the EPA in a judicial appeal of a rule. The Petitioner has
    pointed out that large chunks of the Agency's Rulemaking Notice
    was lifted verbatim from submission of 2(b) regulated
    industries, or for that matter, from the environmental
    community.
        Do you think that the revelation would make your job more
    difficult?
        Ms. Klee. Senator, that is a very hard hypothetical
    question to answer because it would depend largely on the
    specifics of the situation, whether this was material that was
    in the administrative record, to what extent it influenced the
    scope of the substance of the rule, to what extent it was
    otherwise independently supported or consistent with the
    direction in which the Agency was going.
        It is a very difficult question to answer in the absence of
    those kinds of details.
        Senator Jeffords. Does not that kind of an occurrence make
    it look as if the Agency is not independently interpreting its
    statutory mandate? Would it not motivate the courts to
    scrutinize the record much more carefully?
        Ms. Klee. Senator, if I were confirmed, my job in the
    office of General Counsel would be to make sure that we
    evaluate and review rules before they go both to the Federal
    Register and to litigation. I would hope that we would not have
    that kind of situation. We would address those issues before we
    ever finalized a rule.
        Senator Jeffords. You are concerned about that development.
    What do you plan to do about it, if confirmed?
        Ms. Klee. If confirmed, I would plan to do an excellent job
    in reviewing rulemakings before they go to the Federal
    Register. I am very confident that the EPA General Counsel
    staff can do that.
        Senator Jeffords. The Chairman has asked me not to proceed
    further.
        Senator Inhofe. The gentleman's time has expired.
        Senator Wyden.
        Senator Wyden. Ms. Klee, no hypothetical. The Mercury
    decision, you look at it, and the proposal has whole paragraphs
    lifted from industry's proposal. Are you bothered by that?
        Ms. Klee. Senator Wyden, I am not familiar with the
    specifics of that rule. I have read accounts of some of it in
    the newspapers, but that is really the basis of my knowledge.
        I have not reviewed the rule. I do not know what the facts
    are.
        Senator Wyden. Are you bothered by what you read in the
    paper? That is not a hypothetical situation. That is a real
    situation, where you took the industry stuff and basically it
    was a cut-and-paste job. That is not hypothetical. Are you
    bothered by that?
        Ms. Klee. Senator Wyden, my experience has been that
    newspaper reports frequently do not get facts completely
    accurate. So I would not base my evaluation of a situation
    based on a report in the Washington Post.
        Senator Wyden. Mr. Grumbles, you told me yesterday in the
    office that when you wrote to Senator Jeffords last October,
    refusing to provide the documents that we requested, you did so
    at the direction of the White House counsel and the Justice
    Department.
        I would like to begin by asking you to tell me who told you
    to write the letter on October 27th, claiming that EPA could
    refuse to provide documents to a member of the committee by
    claiming that they were exempt from disclosure under the
    Freedom of Information Act?
        Mr. Grumbles. Senator, I would like to restate what I said.
    What I told you was that when we were providing documents and
    information, and also claiming privileges for documents that we
    could not provide, in my capacity I was asking General Counsel
    for their view because I was being told by Counsel's office,
    since I am not an expert on documents or FOIA, or privileges,
    what is the current situation, of what is the policy and
    practice that this Administration and prior Administrations
    have followed.
        I was told that was the case. Now what I also said was that
    the Department of Justice, they were the key in terms of having
    a statement, a 1980 policy, laying that out, and that also CEQ
    Counsel was involved. We had some conversations and it was
    primarily in the context of the President's nominee was trying
    to make it through the process. They were very much on a daily
    basis being kept abreast and up-to-speed on any potential
    issues. This was, as we all remember, one of the key areas of
    concern.
        When I spoke with them, it was in the sense of reaffirming
    existing policy and that is, when a request is coming from
    someone other than the Chairman, then consistent with the 1980
    policy from the Department of Justice, the approach is if
    exemptions from FOIA would apply, then you assert those.
        Senator Wyden. Again, who told you from the Justice
    Department and from the White House to write the letter? You
    did not come up with that idea on your own. Who told you to
    write it?
        Mr. Grumbles. The letter was my letter.
        Senator Wyden. It was your idea to write the letter?
        Mr. Grumbles. It was definitely my idea to write the
    letter. There were a series of letters. My objective when I
    came into the congressional office was twofold. One was to
    reach out to every member on the committee and in the Senate
    and to see what needs they had and to operate in a full
    bipartisan fashion.
        The second one was to make sure that when sensitive issues
    or requests for information were coming, was to make sure that
    I followed the procedures that were in place and the policies
    that had continued to be in place. I do not remember the name,
    honestly, Senator, of the person I spoke with at Justice. It
    was more of staff working for me consulting Justice and CEQ to
    confirm that this was the approach that has been followed in
    the past.
        Senator Wyden. Well, since it was your idea to write the
    letter, and you have said that this is an approach that was
    followed in the past, can you provide us a similar letter that
    was written like the one that you wrote on October 27th? I
    cannot find anything close to this in my experience.
        Mr. Grumbles. I know I----
        Senator Wyden. If I could finish. I would like for you to
    give us a similar letter to the one you wrote on October 27th
    that came sometime in the past when Congress tried to do
    oversight. We cannot find that. Do you have such a letter?
        Mr. Grumbles. I have sent three letters, I believe. The
    whole purpose of the letters was to lay out for the committee
    and Senator Jeffords, with a copy to Chairman Inhofe, all of
    the different things we were doing. We all felt it was helpful
    working with the Minority Staff to have a specific road map to
    keep track of all the requests, questions, and also the
    documents they have.
        I sent, I believe, three letters. The basis for each of
    those, when we did need to assert a privilege and say that we
    could not provide an item to the Senator's staff based on
    enforcement-related or attorney-client privilege, was because
    we were taking the view articulated, and continues to be
    articulated from the Justice Department, that providing
    information to Congress, if you are going to follow the FOIA
    approach, that applies when the requestor is not the Chairman
    of the committee or the subcommittee.
        Senator Wyden. Mr. Chairman, I have asked twice. I will ask
    it a third time.
        I would like to see somebody who wrote a letter in the
    past, like the one you wrote on October 27th. I do not think it
    exists, Mr. Grumbles. I am going to oppose your appointment
    until I see some evidence that there is precedence for this. I
    just think it is not there. I asked you yesterday for it.
        Mr. Grumbles. Senator, I can certainly provide you with
    lengthy memos and discussions from the Justice Department
    articulating the position, which is the position we followed
    with respect to enforcement sensitive or other privileged
    information.
        Senator Inhofe. Senator Wyden, we will return to you.
        Senator Wyden. We will have another round?
        Senator Inhofe. Yes, you will have another round. You will
    have ample opportunity, but I do want to keep regular order
    here, if you do not object.
        Senator Wyden. Fine.
        Senator Inhofe. I would like to followup on that.
        It was suggested I think both by Senator Jeffords and by
    Senator Wyden, that perhaps there was language that came from
    stakeholders or from industry. In the rulemaking process, there
    are comment periods. You receive comments from many different
    sources. I would suggest that there could very well be language
    that came from stakeholders, as well as environmentalist
    groups. Do any of you think that this is unusual?
        Mr. Stephen Johnson. No.
        Ms. Klee. No.
        Mr. Charles Johnson. No.
        Mr. Grumbles. No.
        Mr. Visscher. No.
        Senator Inhofe. All right. This brought up something when
    Senator Jeffords was talking about it and that is I would hope
    that you folks in each one of your capacities would not be
    unduly influenced by either industry or the environmentalist
    groups, or as was brought up by Senator Jeffords, the European
    Union. I have had experience there with Margo Waldstrom, the
    Minister of Environment. I certainly do not think that we
    should put ourselves in the position to be overly influenced by
    anything that comes out of the EU.
        I would like to hear a response to that.
        Mr. Stephen Johnson. Senator Inhofe, I certainly agree with
    you. As I said in my opening statement, I also value the input
    of all stakeholders. I think we have to have an open ear. I
    think we need to hear all of the views, but again we are
    charged with the responsibility as EPA, to make an independent
    assessment following the laws and the regulations to make sure
    that we are protecting the public health and the environment,
    and the people of the United States.
        So I certainly agree.
        Senator Inhofe. I appreciate that. Are there any other
    comments in terms of that position?
        [No response.]
        Senator Inhofe. Mr. Visscher, I would like to ask you what
    you consider to be the most important aspects of this Board for
    which you will be hopefully confirmed, and what you bring to
    the table.
        Mr. Visscher. Thank you. I think what the Board
    contributes, or the role of the Board is to be a transparent
    entity. It covers some areas that are also within the
    jurisdiction of EPA and OSHA. The Chemical Safety Board is not
    regulatory. It is not enforcement-oriented, and as a result of
    that, I think it can provide a level of transparency for
    investigations to reassure communities and workers that things
    are being thoroughly looked it. Also by its focus on chemical
    safety, the Board works not only with the Federal agencies, but
    often with local governing bodies to take another look at
    issues involving chemical safety.
        I know that just recently the Board announced some
    successes in New York City in getting the City Council to look
    at building code issues there. Because the Board has a fairly
    broad role, it can provide that.
        I think what I bring is a long history of experience in the
    safety and health area, a long history of evaluating and
    analyzing accident investigations. I have had accident
    investigation experience with the Committee on Education and
    the Workforce, as well as the OSHA Review Commission, and
    currently in my position at OSHA.
        I also have a familiarity with the other agencies and
    entities involved in safety and health. So I think I can
    contribute much there.
        Senator Inhofe. That's good. Thank you, Mr. Visscher.
        Mr. Grumbles, I would ask you the same question I asked Ms.
    Klee. I remember working with you many, many years ago,
    starting in the middle 1980's on the House side in the
    Transportation Committee. You have an abundance of experience.
    How do you think that can best be used?
        I might add that you have always been a nonpartisan and
    bipartisan individual in your past life. I am sure you will
    continue to be. What do you think you will bring to the table?
        Mr. Grumbles. Thank you, Mr. Chairman.
        From an expertise standpoint, I have had the pleasure of
    being able to be right in the middle of the policy-level
    discussions, not only here in the Capitol but the ones that
    reflect what the State water managers and local water managers
    are dealing with. I have seen the formulation of the policies
    to implement the Clean Water Act and the Safe Drinking Water
    Act.
        As you mentioned, I understand very well and appreciate the
    critical need for and the sustainability of bipartisan
    solutions. That is something that I think that has been a
    hallmark of my experiences in the water arena and addressing
    water quality issues.
        Senator Inhofe. Thank you, Mr. Grumbles. I have no doubt
    that will be the case.
        Senator Jeffords.
        Senator Jeffords. Thank you, Mr. Chairman.
        This is a question for Ms. Klee and Mr. Grumbles.
        One of EPA's most important responsibilities is protecting
    the Nation's water supply. Since the Clean Water Act was passed
    in 1972, we have made much progress. Over 45 percent of the
    Nation's waters still are not safe for fishing, swimming,
    drinking supply, and other uses.
        The Clean Water Act's main program for cleaning up these
    waters is the Total Maximum Daily Load Program. Do you support
    this approach for cleaning up water pollution from point
    sources and non-point sources?
        Mr. Grumbles. Senator, I absolutely support the approach of
    the Total Maximum Daily Load Program. That is a program that is
    a planning tool to help reduce the amount of loadings to
    impaired water bodies.
        We have seen that the number of TMDLs has gone from only
    1,000 or so over the last 6 years to approximately 10,000
    today. We not only support the implementation of that program,
    but we understand that this is just the beginning developing
    the pollution budget.
        The key is finding ways to accelerate the progress in
    cleaning up those impaired water bodies. That is why we say
    that, in addition to implementing the TMDL Program, which
    addresses point sources and non-point sources, we need to look
    for smarter and better ways such as water quality trading,
    keeping the accountability, but moving forward on reducing the
    number of impaired waters.
        Senator Jeffords. Ms. Klee.
        Ms. Klee. Senator, if I were confirmed, my primary role
    would be in ensuring that we were fully and fairly implementing
    the TMDL Program, but beyond that is a pure philosophical
    matter. I also strongly support it.
        Senator Jeffords. This is for both of you again.
        Would you be willing to develop a protocol concerning the
    sharing of budget and other financial information with this
    committee?
        Ms. Klee. Senator, I have only been at EPA for 4 days.
        Senator Jeffords. I am sorry. That is for Mr. Johnson.
        Ms. Klee. OK. That is well beyond my scope of my knowledge.
        [Laughter.]
        Senator Jeffords. I am sorry for giving you that angst.
        Ms. Klee. That is OK.
        Mr. Charles Johnson. Senator, I think I described my
    philosophy as being open and forthcoming. I intend to bring
    that to the position, if confirmed. I believe that you should
    set forth protocols because the anticipation of events and
    release of information should be anticipated, not handled one
    at a time.
        It would be my desire to do that. Once information is
    factual, we know it is right, we know it is timely, the release
    of information as far as I am concerned, if it is within my
    purview, it will be released promptly.
        Senator Jeffords. Mr. Grumbles, in 2002 the President
    signed into law the Great Lakes and Lake Champlain Act. In this
    year's budget the President asked for a funding increase to
    implement the Act. This is the second year in a row that the
    President has managed to ask for funds to implement the Great
    Lakes section of this Act, but has not managed to find any
    funds for our Lake Champlain.
        I extend a permanent invitation to you to come to visit
    Lake Champlain and to see the excellent work that is being
    completed there by the Lake Champlain Basin Program.
        Do you believe that protecting Lake Champlain is a
    priority? If so, how would you implement this as Assistant
    Administration for Water for EPA?
        Mr. Grumbles. Senator, I know the importance of Lake
    Champlain to you, to the region, and to the country. I know
    that there is great work that is going on and a number of
    challenges that are there. I know there are many great water
    bodies throughout the country that do not have specific set-
    asides or earmarked provisions in the budget or the budget
    request.
        I can tell you that I have a great interest in Lake
    Champlain and also in other watersheds. We do have in the
    President's request funding of $25 million for a targeted
    watershed program. We also have additional funds for State and
    tribal innovative grants to help advance environmental
    restoration. The criteria for that need to be further
    developed.
        There are various tools and funds in the budget to help get
    funds toward important water bodies. I look forward to working
    with you and your staff and through the various programs that
    we have. I know full well that that is an important water body
    and the legislative background as well.
        Senator Jeffords. Thank you.
        Mr. Visscher, 2 years after we discovered that Al-Qaeda was
    interested in targeting U.S. chemical plants, reporters from 60
    Minutes were able to wander unimpeded with their cameras into
    numerous chemical facilities.
        If confirmed, would you encourage the Chemical Safety Board
    to be more proactive on chemical security concerns? For
    example, investigating and making recommendations on how to
    prevent or reduce the threat and consequences of terrorist
    release in chemical facilities?
        Mr. Visscher. The 2004 Appropriations Conference Report
    calls on the Chemical Safety Board to enter into an agreement
    with the Department of Homeland Security for providing
    technical assistance and other means of assisting in that
    effort. I hope that that agreement would take shape soon,
    pursuant to congressional direction.
        I think that that is the right way to go. I am not sure at
    this point what procedures are in place. Obviously it would be
    necessary for those to be highly confidential in any technical
    assistance role. But I think pursuant to congressional
    direction, that the agreement with the Department of Homeland
    Security would address those issues. The Board has much
    technical knowledge about chemical safety. So I think that
    would be the way to approach it.
        Senator Jeffords. Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Jeffords.
        Senator Thomas.
        Senator Thomas. Thank you, Mr. Chairman.
        Mr. Johnson, obviously there is never enough money for
    agencies, but we are faced overall in Government with perhaps
    better management of our money, as opposed to just more money.
        Do you have any ideas? I know you are new at it, but how
    would you approach business plans or some kinds of things that
    perhaps would make us more efficient with the dollars that are
    spent?
        Mr. Charles Johnson. I would begin with some of the future
    planning, the long-term thinking. It is very obvious to me that
    there are funding gaps in several areas. We had better capture
    that to see trends and where we are going. I would start with a
    look at where we are.
        Then second, where do we want to be? How do we get from
    here to there? That is a fundamental business plan. But we need
    to capture this on a longer period of time than 1 year at a
    time. It would be my intent to add a great deal of future
    planning to the Office of the CFO and to sincerely analyze
    these potential funding gaps so that we all have the same
    information--the Administration, Congress, and the EPA--will
    have that same information. We can only address it if we have
    the facts.
        I have always said that where an agency spends its money
    indicates its true priorities. So we need to make sure that we
    are matching priorities with where our funds are being spent.
        I think there is a lot of analysis to be done. Again, I do
    not want to speak as an expert at this point, but I can tell
    you philosophically I believe more future planning is very
    appropriate at this time.
        Senator Thomas. That is good.
        I know it is difficult when implementing the law. It is
    your responsibility. But there should be priorities, should
    there not be, as to what the major efforts ought to be?
        Mr. Charles Johnson. Absolutely. Budgets are all about
    comparisons. I have never met a budget request that was not
    valid. But somebody has to make hard decisions and set
    priorities. It has to start with us. Certainly this body is
    heavily involved in that.
        It is a collaborative effort. Priority setting is
    fundamental to it.
        Senator Thomas. Ms. Klee, do you think there is a
    possibility of reducing the legal activity or the court
    activity by working more closely with other groups,
    particularly local groups prior to going to court?
        Ms. Klee. Senator, I think you got it right in your opening
    statement. I think we will never get rid of litigation
    altogether, but if we do a better job of working in a
    collaborative way, involving local communities and local
    groups, environmental organizations, the private sector, and
    industry, we have a better chance at the end of the day of
    reducing litigation, but never getting rid of it entirely.
        Senator Thomas. I am sure that is true.
        Mr. Stephen Johnson, I am sure that you agree that most of
    your decisions have to be based on science. However, there are
    often a number of views as to what the science is.
        How do you have defensible decisions with regard to science
    when there are different views within the scientific community?
        Mr. Stephen Johnson. Well, Senator Thomas I think you have
    certainly hit the critical issue of science. The first is that
    the Agency needs to make sure that our decisions are based on
    and have a foundation in sound science. In fact, I am very
    proud of the dedicated professionals at EPA and the scientific
    staff. I think we have some of the world's leading scientists,
    both in our regulatory programs and in our research and
    development office.
        I think to help ensure that we find that appropriate
    foundation, I think there are a number of steps that we have
    and expect to continue to take. One is that as we release our
    scientific analyses, that they have the appropriate references,
    that they have the appropriate range of uncertainties that we
    have identified, and what the uncertainties are in our science
    assessment.
        And probably one of the most pivotal issues is making sure
    that our science is subjected to peer review, both inside the
    Agency and inside and across all of the scientific community
    within the Government, as well as the outside community, and
    are armed with an open and transparent science progress, and
    open with overseeing with peer review. I think that in the end
    we get the best science that we have available.
        Senator Thomas. In Wyoming's case the Department of
    Environmental Quality can really have jurisdiction. Are you
    comfortable with that? Then what do you do? Oversee to see that
    Federal laws are enforced but let the State actually do it?
        Mr. Stephen Johnson. Absolutely. For many of our programs
    at EPA, these are State-delegated programs. I am certainly
    supportive of that. That is the way the legal framework is set
    about.
        But more importantly, my experience across EPA is that it
    is important in our role to set the national standard. But
    really when it comes down to it, we need a neighborhood
    solution. That is certainly, I would say, a philosophy that
    Administrator Leavitt from his own experience as Governor, and
    certainly my experience at EPA rings true as well.
        Senator Thomas. I am glad to hear that.
        Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Thomas.
        Senator Wyden.
        Senator Wyden. Thank you, Mr. Chairman.
        I have a question for you, Mr. Grumbles, and for you Ms.
    Klee.
        The controlling case with respect to the right of Members
    of Congress to access information is Murphy v. Army Department.
    This is a U.S. Court of Appeals case. I want to read it to you.
    I want to read you the key findings:
        ``We find no basis in the statute or in public policy for
    distinguishing between a congressional committee and a single
    member writing in an official capacity. All members have a
    constitutionally recognized status entitling them to share in
    general congressional powers and responsibilities, many of them
    requiring access to executive information.''
        So it seems to me what is being done by Mr. Grumbles--and I
    want to ask you this, Ms. Klee, because you are going to be
    counsel--is, in effect, Mr. Grumbles is saying, that some
    internal Justice Department opinions ought to take precedence
    over the controlling court case.
        Mr. Grumbles, first your response to that. How does it come
    to be that some internal Justice Department opinion should take
    precedence over the controlling U.S. Court of Appeals case?
        Mr. Grumbles. First of all, Senator, I do not know if it is
    internal or not. I know it has been published and provided to
    agencies since 1980. Then it was subsequently revised in 1984.
    Again, I would just have to say at the outset that I have not
    read through the Murphy case. I did not pretend to become, and
    never came close to being, a FOIA expert.
        Senator Wyden. You did not read the controlling case before
    you issued the October 27th letter?
        Mr. Grumbles. I read parts of it. I read in detail the
    Justice Department guidance which went through some level of
    detail explaining that the position is that the Murphy case is
    distinguishable in various ways. It laid out arguments.
        Senator what I did was to rely on the advice of counsel and
    the understanding that the Agency's position has been, and was
    in the previous Administration, that notwithstanding the Murphy
    case, there was detailed guidance from the Justice Department
    that spelled out, ``Well, here are the ways that it is
    interpreted. This is what this means and what that does not
    mean.''
        I never personally became more involved in that issue from
    that level. I basically was told and understood that the Murphy
    case is distinguishable. The guidance that has been controlling
    across the agencies and the Justice Department in 1980 and 1984
    is that when a Member of Congress is seeking information, our
    approach at EPA and the congressional office, and not just my
    personal bias, but the institutional position toward providing
    information to Members of Congress, whether they are a chairman
    or members at large, to always be as responsible as possible.
    And when issues come up as to potentially sensitive documents,
    then look to what the Justice Department guidance is and what
    the policy is.
        That is what I did. It was referenced in my letter to
    Senator Jeffords and staff as a way to explain the basis upon
    which the determination was made for not providing all of the
    information. That letter also accompanied information that we
    had been gathering and had probably a couple dozen people
    working on to gather air-related issues and other issues.
        Senator Wyden. Mr. Grumbles, I just find this more and more
    curious with each one of your answers. You have told us that
    this was your idea, No. 1. You did not read the controlling
    case, which is not at all ambiguous. And you seemed to have had
    some conversations with people at various parts of the
    executive branch, whether it is the Justice Department or the
    White House, but you are not going to tell us whose name it is.
        I just find this exceptionally irresponsible and, in
    effect, you are all saying that these various positions from
    some parts of the executive branch would take precedence over a
    U.S. Court of Appeals decision, which is unambiguous.
        My question to you is the same one, Ms. Klee. As I told you
    yesterday, I was going to ask you your opinion of the October
    27th letter. I want to give you that opportunity to offer it if
    you choose to do so.
        But tell me what you think of the practice of saying that a
    U.S. Court of Appeals decision that is unambiguous should have
    less weight than these various apparently ruminations within
    the executive branch on giving Members of Congress information?
        Ms. Klee. Senator, let me start by stating that as a former
    congressional staffer, I understand and appreciate how
    important the congressional oversight role is, and in order for
    this committee, or any committee to do its oversight function,
    it has to have access to documents. So I understand that very
    important principle and I support it.
        As I mentioned to you last night, I have not reviewed any
    of the case law, including the case that you cited, nor have I
    have had a chance to review the DOJ guidance documents that
    are, as I understand it, interpreting those cases. Those
    guidance documents have been in place since 1980 and updated
    periodically. But I have not reviewed them.
        If I were to be confirmed as General Counsel, I would
    anticipate that one of my very important functions would be to
    work through these issues with the committee to ensure that the
    committee gets access to the documents that it needs to fulfill
    its oversight responsibility.
        Senator Wyden. I am not going to belabor this point, but
    again, Ms. Klee, I just think that to have no opinion on this
    issue, which is unprecedented and never took place when you
    were doing fine work for this committee, makes it impossible
    for me to support your nomination.
        People ought to have opinions. They ought to know at least
    a modest amount about the controlling case on an issue that has
    clearly dominated this committee over the last couple of weeks.
    All members on this side of the aisle have expressed their
    concern about it.
        I just think that the positions that we have heard today
    leave me with many more questions than answers.
        Mr. Chairman, I again want to say how important it is that
    I think on a bipartisan basis we change this policy of non-
    cooperation with respect to information requests. I think that
    is what it is. I think it will shut down the oversight process.
    I think it sets a precedent that will be regrettable for both
    sides of the aisle.
        Senator Inhofe. Senator Wyden, let me suggest something
    here. We were going to have another 5-minute round. You are
    already three-fifths of the way through the second round.
        Go ahead and continue and take yours now.
        Senator Wyden. All right. I appreciate that, Mr. Chairman.
    I know that Senator Thomas had a number of questions as well.
        I want to ask Mr. Stephen Johnson one additional question.
        Mr. Johnson, if I might, for you, we have had extraordinary
    difficulty getting information about Portland.
        My questions that were asked on September 15th to Tracy
    Mahan, the responses arrived last night. Basically whenever I
    have the good fortune of Chairman Inhofe of scheduling a
    hearing, there are months and months of delay, and we get a bit
    of information. It somehow goes by the board.
        I would like to know whether you are going to change this
    policy and if it is going to be possible for us to get answer
    within 6 or 8 weeks rather than going through what seems to be
    bureaucratic water torture to try to get these kinds of
    documents. What is going to change on your watch?
        Mr. Stephen Johnson. Senator Wyden, certainly I understand
    and share your frustration. I think that we need as an Agency
    to be responsive to your needs and to the committee's needs. We
    clearly need to improve.
        As we had the opportunity to meet and talk about the
    Portland situation, I was not aware of the specifics of it and
    what was certainly a lack of responsiveness on the Agency's
    part. Charlie Johnson and I went back immediately. I know that
    we have been literally delivering boxes of information, as well
    as responding to specific questions.
        What I intend to change and to work toward is to improve
    the responsiveness of the Agency so that you have the kinds of
    information that you need. That is certainly what I want to
    work toward.
        With regard to the issue that I have been talking with Mr.
    Grumbles and Ms. Klee, I think it certainly is important.
        You certainly have my commitment to work with you, Senator
    Jeffords, and Chairman Inhofe to find a path forward. I am
    certainly not an expert. I have watched this in one sense from
    afar through the years. I certainly understand the need of the
    committee and all committees for oversight. You need to have
    information to do that. You certainly have my commitment to
    work with you, Senator Jeffords, and Chairman Inhofe to try to
    find a way forward.
        Senator Wyden. My time is up. I would only say, Mr.
    Johnson, it is not just the committee. This is about individual
    U.S. Senators. We get election certificates and our
    constituents expect us to dig into these programs and to make
    them work.
        I felt that your comment about meeting to improve was
    constructive. But understand this has to run with respect to
    individual members of the Senate.
        I thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Wyden.
        Let me just announce that it would be the intent a week
    from tomorrow for this committee to have a business meeting and
    hopefully to have a quorum present. We would ask that all
    followup questions be submitted by noon tomorrow. I know there
    will be followup questions from members of the committee.
        Without objection, so ordered.
        I had to step out while Senator Thomas was presiding and
    asking questions.
        Mr. Johnson, the question he asked about sound science,
    there is not a person at the table there or this table here who
    is not aware that when I first became Chairman of this
    Committee that was one of the things that I said we were going
    to have to have. The notion that we will are going to be
    relying on sound science is outrageous in some people's minds.
        But nonetheless we are going to do that. I am sure that all
    of you would agree with the responses of Mr. Johnson, that that
    is not unreasonable to assume.
        That goes with your Board that you will be on, too, Mr.
    Visscher.
        Mr. Visscher. Certainly.
        Senator Inhofe. Good. Senator Jeffords.
        Senator Jeffords. Thank you, Mr. Chairman.
        I would like to talk about a serious problem in the
    District of Columbia. Mr. Grumbles, yesterday when we met in my
    office we discussed the Washington, DC. lead contamination
    issue.
        When Administrator Leavitt was here at the budget hearing,
    I offered him a drink of water. We have D.C. water.
        I would offer you the same, all of you to take a nice sip
    of this lead-loaded water. I would ask you this.
        [Laughter.]
        Senator Jeffords. One of the many failures in the
    Washington, DC. situation is the complete failure of the public
    communications apparatus to accurately and effectively
    communicate the appropriate level of health risk in this
    situation. One of the most frustrating for parents and pregnant
    mothers is the feeling of ``if they had only known, they would
    have been able to take action to protect their children.''
        Do you feel that this situation has been rectified in
    Washington, DC.? How is the Agency ensuring that this event
    will not happen again?
        Mr. Grumbles. Senator, I would say that EPA is fully
    engaged in overseeing vigorously the efforts in terms of
    compliance with the Safe Drinking Water Act, and also the
    critically important aspect you are mentioning, and that is the
    communications, the public outreach, and restoring consumer
    confidence.
        The Region 3 administrator is the primary EPA entity that
    is overseeing the day-to-day efforts to comply. They are
    currently working with the District government to improve the
    outreach and have more meetings.
        I can tell you from a national perspective, if there is a
    lesson to be learned from this experience, it is that across
    the Nation, as we look at the 1991 lead and cooper rule, we
    feel that it is even more important to emphasize that the
    communications to the users, the consumers of water in the
    communities across the country, get the most helpful and robust
    information possible.
        One of the items that we are very much engaged in is not
    just working with the District on their outreach campaign of
    communicating to the public directly or indirectly, but it is
    also to see how other communities across the country are doing.
        You hit it right on the head that a key aspect of consumer
    confidence under the Safe Drinking Water Act and the lead rule
    is that once these exceedances occur, you must shift into high
    gear and let people know the risks and what steps they can take
    to minimize those risks and to completely prevent the risk.
        Senator Jeffords. I am concerned because of the lack of
    information that is available. For instance, we are now buying
    bottled water, but I find out that no one knows whether the
    bottled water has lead in it or not. You cannot find that out.
        When can you be sure that the water you are drinking is
    what it ought to be?
        Mr. Grumbles. With respect to the District of Columbia, I
    think the key players involved in that, the key agencies and
    governmental entities, EPA Region 3, the City, and WASA are
    working hard on that front. I think it is critically important
    that the advisory that the Mayor issued was done at the time he
    did it, to address certain groups such as pregnant moms and
    parents of young children, that they should not be drinking
    water from their taps if they have lead surface lines.
        I know on a daily basis the key is to get the information
    out to the public. I think we are very much in the midst of
    figuring out and trying to solve the riddle over what
    contributed to the increase in the corrosive nature of the
    water. We have a technical work group on that front that is
    reaching conclusions. We have an independent peer group that is
    reviewing those conclusions to try to help solve that problem.
        But you are right. The key is to be able to say with
    confidence that the water is safe to drink. I can say, even
    though I am not the primary EPA official involved, that the
    data that we have received to date, really the Public Health
    officials' data, is that this is not a public health crisis, it
    is a very important public health concern. We still do not know
    what has caused it, however and we do not know the extent of
    the contamination.
        The blood testing for lead levels has not indicated that it
    is at levels that some might have thought several weeks ago.
        Senator Inhofe. Senator Jeffords, I know you are aware of
    it, but some of the rest may not be aware, that we are holding
    a Subcommittee hearing next week from Thursday on this very
    subject. I know many of our other colleagues are equally
    interested in this.
        Senator Jeffords. Thank you, Mr. Chairman.
        Senator Inhofe. First of all, I thank you very much for
    your being here today.
        Our meeting is adjourned.
        [Whereupon, at 11:04 a.m., the committee was adjourned, to
    reconvene at the call of the chair.]
        [Additional statements submitted for the record follow:]

     Statement of Stephen L. Johnson Nominated to be Deputy Administrator,
                      U.S. Environmental Protection Agency

        Mr. Chairman and distinguished members of this committee, I
    have the honor and pleasure to appear before you today to seek
    your confirmation to serve as the U.S. Environmental Protection
    Agency's Deputy Administrator. Since joining the
    Administration's team at EPA, I have had the opportunity to
    visit with many of you to discuss your environmental priorities
    and to share with you my vision for environmental progress. I
    thank you for your time. It has been an enlightening and
    rewarding experience, and I hope to continue to work closely
    with the committee, should I be confirmed as EPA's Deputy
    Administrator.
        Now is an exciting time to work at EPA. Administrator
    Leavitt has quickly demonstrated an extraordinary grasp of
    today's leading environmental issues, and his vision has
    already become an inspiration for our employees and management
    team. I am excited by the prospect of working with
    Administrator Leavitt in advancing his four cornerstones toward
    a ``better way'' for the environment. They include facilitating
    collaboration, harnessing technology, creating market
    incentives--and a commitment to measuring progress, not
    process. Administrator Leavitt has two emerging themes echoing
    throughout the agency--increasing the velocity of improvement
    and implementing ``a better way.'' The Administrator is
    challenging EPA to reach new levels of environmental progress,
    and to do it in less time. I am proud to be nominated by the
    President to work with Administrator Leavitt at such a pivotal
    time in the Agency's history.
        The American people trust EPA to protect their families,
    communities, and the land, air, and water where they live. I
    understand the enormous responsibility that comes with that
    trust, and I will do everything in my power to make sure those
    responsibilities are met. I have learned that the best way to
    fulfill our responsibility is to promote transparency in our
    work and base our decisions on sound science. While serving as
    Assistant Administrator of EPA's Office of Prevention,
    Pesticides, and Toxic Substances (OPPTS), one of my top
    priorities was implementation of the landmark Food Quality
    Protection Act of 1996. The FQPA added new protections against
    pesticides, especially for children, and established statutory
    milestones for progress. During my 2 years at the helm, EPA met
    the law's rigid deadlines for reviewing the safety of existing
    pesticides. How did we do it? We conducted extensive outreach
    to stakeholders to improve our decisionmaking and to ensure
    broad support. We collaborated to ensure that EPA's actions not
    only reduced risks from pesticides, but provided the
    agricultural community with the products they needed to control
    pests. To support the process, we ensured expeditious and
    scientifically sound testing and registration of new lower risk
    pesticides, especially products of biotechnology. We were able
    to meet the ambitious goals of FQPA through a powerful
    combination of extensive collaboration, sound science, and new
    technology. It is a success that I believe we can replicate in
    other programs across the Agency.
        In my experience, these approaches can apply to a broad
    range of environmental policy. For example, in the area of
    industrial chemical regulation, I worked to ensure the
    introduction of safe new chemicals as well as the protection of
    citizens against hazards posed by lead, mercury, asbestos, PCBs
    and other existing pollutants used in industry and homes. We
    moved the voluntary High Production Volume Chemical Challenge
    (HPV) from concept to reality. This program ``challenged''
    chemical companies to voluntarily generate and make public for
    the first time basic health effects information on the 2,800
    industrial chemicals produced in the greatest quantities in the
    United States. Today hundreds of companies are submitting that
    data, which is posted on EPA's Web site. The collaboration
    brought together EPA, industry and the environmental community
    in an unprecedented partnership to inform and protect the
    American public.
        As I address these and other priority issues, I want to
    mention my personal operating philosophy and principles I will
    follow if confirmed as the Deputy Administrator. They include:
    advance the best science to support our regulatory decisions;
    foster open communication and regular consultation with our
    stakeholders; build strong and trusting relationships with all
    our customers, including Congress, States, tribes, industry,
    the scientific community, other government agencies, the
    international community, and the consumer advocate community;
    and finally, promote professionalism, dedication and diversity
    in the Federal work force.
        These principles serve us well for the challenges we know
    are before us, but serve even better for challenges we may
    never imagine. In the wake of September 11, 2001, we were able
    to focus the efforts of staff from various EPA offices on the
    additional goal of chemical and food safety from terrorist
    threats, as well as anthrax cleanup. EPA staff joined forces
    with several other Federal agencies and even other levels of
    government to effectively decontaminate anthrax at the Senate
    Hart Office Building and the Brentwood Post Office in
    Washington, DC. We were able to quickly step up to these new
    challenges precisely because at EPA we have fostered a culture
    of collaboration, internally and externally, and we had the
    existing relationships and networks necessary to succeed.
        The success of our leadership team at EPA is inextricably
    linked to the productivity and creativity of the Agency's
    staff. EPA has an exceptionally talented and diverse work
    force. As the designee for Deputy Administrator, I believe I
    have a responsibility to invest in our people, promote
    professionalism and diversity, and prepare our work force for
    the future. This has been a longstanding interest of mine. In
    1998 I became a charter member of EPA's newly reconstituted
    Human Resources Council. I actively participated in the HRC
    even while serving as Acting Deputy Administrator. Over the
    years I have remained actively involved in a number of HRC-
    sponsored activities including direct participation in
    supporting the Senior Executive Service Candidate Development
    Program. I promoted agency-wide human resources programs such
    as the Workforce Planning Strategy both in OPPTS and in the
    Office of the Administrator. During my tenure at OPPTS, a
    number of progressive human resource programs were implemented
    to make OPPTS a ``model'' employer. For example, OPPTS
    pioneered an innovative employee rotation program that allows
    mid-level employees the opportunity to compete for special
    assignments that stretch and develop them professionally. I
    have been involved in EPA's effort to meet the objectives of
    the President's Management Agenda, including the Strategic
    Management of Human Capital.
        I would like to close with two personal observations. My
    family has a strong commitment to public service. My father
    served in the Department of the Navy for more than 30 years. In
    fact, he and other family members are with me today in the
    audience. I'd like to thank all of them for making the trip to
    support me. Growing up, I always admired my father's government
    service. During college in the early 1970s, I began my public
    service as a GS-4 intern, and I am proud to have worked in
    public service for more than 20 years. This experience has led
    me to have a deep appreciation and abiding respect for the
    importance of reaching for excellence in government.
        On another personal note, I have been fortunate to be able
    to devote the majority of my career to environmental
    protection. For me, serving in the government, with the goal of
    helping all Americans and their families, has been a distinct
    privilege. When I reflect on my past service and consider the
    future, I know that I will face difficult, complex, and serious
    issues. I have confidence that sound science and collaboration
    will lead to successful outcomes and best serve the American
    people. If confirmed as Deputy Administrator, I pledge to work
    toward national goals with a keen sense of the needs and
    realities of our individual families and communities. I hope
    that my service will reflect positively on my children, their
    everyday choices, and the community that each of us live in.
        I appreciate your consideration of my nomination, and I
    look forward to working with you on a bipartisan basis to
    advance the mission of protecting the environment.

    [GRAPHIC] [TIFF OMITTED] T4600.001

    [GRAPHIC] [TIFF OMITTED] T4600.002

    [GRAPHIC] [TIFF OMITTED] T4600.003

    [GRAPHIC] [TIFF OMITTED] T4600.004

    [GRAPHIC] [TIFF OMITTED] T4600.005

    [GRAPHIC] [TIFF OMITTED] T4600.006

    [GRAPHIC] [TIFF OMITTED] T4600.007

    [GRAPHIC] [TIFF OMITTED] T4600.008

    [GRAPHIC] [TIFF OMITTED] T4600.009

    [GRAPHIC] [TIFF OMITTED] T4600.010

    [GRAPHIC] [TIFF OMITTED] T4600.011

    [GRAPHIC] [TIFF OMITTED] T4600.012

    [GRAPHIC] [TIFF OMITTED] T4600.013

    [GRAPHIC] [TIFF OMITTED] T4600.014

    [GRAPHIC] [TIFF OMITTED] T4600.015

    [GRAPHIC] [TIFF OMITTED] T4600.016

    [GRAPHIC] [TIFF OMITTED] T4600.017

    [GRAPHIC] [TIFF OMITTED] T4600.018

          Response by Stephen L. Johnson to Additional Question from
                                 Senator Inhofe

        Question. As OSHA moves forward with a rulemaking on exposure to
    hexavalent chromium, will EPA be part of that process and will you
    commit to cooperating with OSHA in evaluating the risk from hexavalent
    chromium in ACC?
        Response. Yes, we are cooperating with OSHA regarding the
    rulemaking for exposure to hexavalent chromium. Through an existing
    Memorandum of Understanding between EPA and OSHA, the two agencies have
    enjoyed many years of strong coordination and cooperation on several
    issues. In addition, EPA will coordinate this issue through the OMNE
    (including EPA, OSHA, NIOSH, and the Mine Safety and Health Agency)
    Committee which meets regularly to coordinate on a range of chemical
    issues that relate to occupational safety and health concerns.
        With regard to EPA's efforts to develop a risk assessment for the
    hexavalent chromium in acid copper chromate (ACC), we are working
    closely with OSHA and NIOSH. OSHA's Permissible Exposure Level (PEL)
    for the workplace will be an important consideration in our review of
    this chemical. In addition, the issue of dermal sensitization,
    including as related to hexavalent chromium in ACC, will be presented
    to an EPA Scientific Advisory Panel (SAP) meeting on May 4-5, 2004. As
    part of this process, EPA scientists are working jointly with OSHA and
    NIOSH scientists who have been invited to participate in the SAP.

                                     ______

         Responses by Stephen L. Johnson to Additional Questions from
                                Senator Jeffords

        Question 1a. The High Production Volume Challenge Program, launched
    by EPA in 1998, has made important progress in getting chemical
    manufacturers to voluntarily commit to fill gaps in basic screening-
    level hazard data for chemicals they manufacture. Now that this data is
    beginning to be submitted, how does EPA plan to use the information?
        Response. EPA is already using and plans further to use the data
    being made publicly available under the HPV program for a number of
    purposes. To assist the Agency, the Office of Pollution Prevention and
    Toxics established a Federal Advisory Committee called the National
    Pollution Prevention and Toxics Advisory Committee (NPPTAC). We hope to
    obtain consensus recommendations from the NPPTAC concerning elements in
    an approach to setting priorities for the assessment of the HPV
    Challenge Chemicals. The results of the screening will set priorities
    for risk management, risk assessment, or additional testing and
    information development. In addition, opportunities will be explored to
    integrate the HPV data into OPPT's Pollution Prevention program through
    new initiatives based on the wealth of data that will be acquired on
    many widely used industrial chemicals. This data will allow EPA to
    better assess and manage the chemicals citizens are likely to encounter
    in their everyday lives.
        This data will also help promote more sustainable approaches to
    looking at both the risk management of chemicals and the development of
    safer alternative chemicals or technologies--this will result in the
    Agency being better able to produce positive, measurable environmental
    results, more efficiently. The data will also help other Federal and
    State entities and tribes in prioritization and assessment/management
    activities.
        Another significant use of the data will be in Structure Activity
    Relationships (SAR). The Agency is a world leader in the development
    and use of SAR models to assess chemicals. The wealth of data received
    under the HPV Challenge program will allow EPA to evaluate and
    strengthen the SAR models currently in use, such as Quantitative SARs
    for environmental effects, and more importantly to significantly
    increase the pace of development of health effects SAR models. As SAR
    capabilities are further developed and expanded, the Agency will be
    able to more quickly and reliably screen chemicals for a wide range of
    health and environmental effects and environmental fate indicators such
    as persistence.

        Question 1b. Further, when does EPA plan to finalize the December
    2000 proposed rule requiring manufacturers of the first set of
    ``orphan'' chemicals to develop hazard data, and when does the Agency
    plan to issue additional rules for the remaining ``orphan'' chemicals?
        Response. EPA plans to issue the final test rule on the first group
    of unsponsored HPV chemicals and hopes to issue a proposed rule for
    additional unsponsored chemicals by the end of 2005.

        Question 2. EPA recently acknowledged that the wood preservative
    acid copper chromate (ACC) has not been evaluated using current safety
    standards. There is a clear need to ensure that the health risks of
    ACC, including risks from oral ingestion and dermal absorption, are
    fully evaluated and subject to all appropriate testing. Will EPA assure
    us that the pending pesticide registrations for ACC will not be granted
    before such a full and detailed evaluation has been completed?
        Response. Yes, the Agency is working hard on resolving the
    outstanding questions associated with the ACC registration
    applications. EPA is committed to developing a solution that ensures
    that the most economic and environmentally safe wood-treatment products
    are available for consumers. On January 9, 2004, the Agency sent
    letters to the potential manufacturers, Arch Wood Protection, Inc. and
    Forest Products Research Laboratory, informing them that the Agency was
    unable to accurately assess the risks that may be associated with ACC
    without additional exposure information. The kind of data needed
    largely relates to how much chromium people would be exposed to from
    treated wood. In order to facilitate the generation of this new data,
    on March 3 the Agency staff met with the applicants. To date, the
    Agency has not received the requested data. Absent of any other new
    information that would resolve the Agency concerns, EPA needs the
    information identified in the January 9 letter before it can accurately
    and thoroughly assess the potential risks and reach a decision on the
    applications.

        Question 3a. In your written testimony, you state that the High
    Production Volume (HPV) program challenged chemical companies ``to
    voluntarily generate and make public for the first time basic health
    effects information on the 2,800 industrial chemicals produced in the
    greatest quantities in the United States. Today hundreds of companies
    are submitting that data, which is posted on EPA's Web site.'' My
    understanding is that the data available on EPA's HPV webpage are
    summaries of pre-existing data, as opposed to newly generated data to
    fill the information gaps. Is this correct?
        Response. Most of the initial data posted on the website was
    existing data that had been in company files and had not been publicly
    available. The Agency wanted to make that data available as soon as
    possible. The more recent posting include newly generated data that has
    been developed in response to the HPV Challenge Program.

        Question 3b. When does EPA plan to establish a repository data base
    so that the new data can be made publicly available?
        Response. The Agency plans to have the data base available by early
    2005. At the present time, there is an effort underway to enhance this
    data base with additional search capabilities. The Agency is working
    with some of the NPPTAC members, industry data submitters,
    environmental organizations, and State representatives to ensure that
    the data base is as useful as possible. When available, the relational
    data base will house the data previously submitted under the program as
    well as all new data.

        Question 4. You testified that EPA did not conduct a ``complete or
    thorough evaluation of the potential benefits'' of REACH. Please
    provide a copy of whatever evaluations EPA has conducted to date
    regarding the public health and environmental benefits of REACH.
        Response. EPA has consistently stated that it supports the goals of
    the EU's REACH proposal. EPA recognizes that the EU has the right to
    determine the levels of protection it deems appropriate for its
    citizenry. In that vein, EPA's role in the review of the proposed and
    revised legislation was with respect to our experience as regulators of
    new and existing chemicals and with the workability of the proposal.
    EPA has had an ongoing dialog with the European Commission regarding
    the development of the REACH proposal. It has been a collaborative
    process where the EPA has provided technical guidance and feedback to
    commission staff on various components of the REACH program, many of
    which are new elements in the EU's regulatory approach to chemicals but
    for which EPA has had long experience (e.g., polymers, intermediates,
    compensation procedures for sharing testing costs, etc.). At the
    request of European Commission staff, the Agency has provided copies of
    relevant U.S. Federal Register notices and text from the Code of
    Federal Regulations, and other information on the approaches and tools
    we use here in the U.S. to address such matters. The working
    relationship has been a positive and productive bilateral effort. EPA
    has not done an analysis of environmental or public health benefits of
    the REACH proposal.

        Question 5a. You testified that you met with public health and
    environmental organizations to discuss the development of the U.S.
    position on REACH. Please provide the names of any public health and
    environmental organizations with whom you (or senior EPA management)
    met, the names of the individuals attending, and the date and location
    of the meetings to discuss REACH. Please provide the names of any
    industry or other non-governmental organizations with whom you (or
    senior EPA management) met, the names of the individuals attending, and
    the date and location of the meeting to discuss REACH.
        Response. The following is a list of the majority of meetings held
    on REACH with external parties, however the Agency will continue its
    work to determine if there are any other such meetings.
        January 2002, Arlington, VA Transatlantic Business Dialogue Charles
    Auer, EPA, Officials from European Commission, Rob Donkers, Reinhard
    Schulte-Braucks, industry, and the public
        June 13-14, 2002, Paris CEFIC Conference Delivered keynote address
    on U.S. approaches to chemicals management Steve Johnson, EPA
        Sept. 13, 2002, Washington DC Meeting on EU Chemicals Policy with
    WWF Cliff Curtis, World Wildlife Fund (WWF), Charlie Auer and Susan
    Hazen, EPA
        Sept. 24, 2002, Washington DC Meeting on EU Chemicals Policy Susan
    Hazen and Charles Auer, EPA, met with American Chemistry Council
    representatives Joe Mayhew and Mike Walls
        Nov. 7-8, 2002, Chicago Transatlantic Business Dialogue Steve
    Johnson and Charles Auer, EPA, met with transatlantic officials from
    Directorate General (DG) Trade, Enterprise and Environment, business
    and the public
        Sept. 30-Oct. 2, 2002, Brussels Discussions with EC, UK & other
    countries, industry and ENGO's, to exchange information on aspects of
    regulatory programs and current environmental issues including REACH,
    POPs, PIC, asbestos, Octa-BDE, and other issues Susan Hazen and Charles
    Auer, EPA, met with DG Environment Catherine Day, Eva Hellsten, Rob
    Donkers; DG Enterprise Reinhard Schulte-Braucks, Countries UK and
    country representatives to the EC , Industry Alain Perroy of CEFIC, and
    other industry representatives, ENGO's representatives from WWF,
    Michael Warhurst; Greenpeace; Jorgo Iwasaki-Riss; and European
    Environment Bureau, Stephan Schuer
        Dec. 2-5, 2002, Brussels Discussions with EC, UK & other countries,
    industry and ENGO's Stephen L. Johnson, Charlie Auer & Breck Milroy,
    EPA; DG Environment and Trade Business Roundtable; Country
    Representatives to the EC; ENGO's WWF, Michael Warhurst; and EEB,
    Stephan Scheuer, Roberto Ferrigno; and Members of the EU Parliament
        Jan. 30, 2003, Washington, DC Trade and Environment Policy Advisory
    Committee, Co-chaired by USTR and EPA Linda Fisher, EPA, met with
    members, including several NGO's among other groups
        June 3-5, 2003, Brussels Steve Johnson and Breck Milroy, EPA, met
    with DG Environment, Health & Enterprise; Italy Rep. to the EC;
    Business Roundtable and European Environment Bureau
        Sept. 15, 2003, Stockholm International Chemical Control Policies
    Approach to the Sound Management of Chemicals Susan Hazen, EPA, met
    with participants and attendees including DG Environment; Sweden; UK;
    CEFIC; WWF; academia; etc.
        Oct. 6-9, 2003, Brussels Discussions with European commission staff
    and others Susan Hazen, Charles Auer, and Breck Milroy, EPA; DG
    Environment, Members of European Parliament
        Oct. 21, 2003, Washington DC Lowell Center for Sustainable
    Production Various EPA staff met with Joel Tickner & Ken Geiser with
    other European Experts & ENGO's
        Nov. 5, 2003, Washington, DC Trade and Environment Policy Advisory
    Committee, Co-chaired by USTR and EPA Judith Ayres, EPA, and members
    including several NGO's among other groups

        Question 5b. In the future, what process does EPA, or the REACH
    interagency task force of which EPA is a member, intend to use to
    gather input from the environmental and public health community to
    ensure that the US position on REACH reflects a balanced set of views?
        Response. EPA remains open to meeting with all interested parties
    on various health and environment issues, and will seek input via
    appropriate means where necessary to ensure that the Agency understands
    the range of stakeholder views. EPA notes that a wide range of views on
    the REACH issue have been solicited through various advisory committees
    established and supported by other agencies. This is the typical
    process used for matters that affect U.S. commerce and at least one of
    the advisory committees is dedicated to trade and environment interests
    while other functional or sectoral committees include representatives
    of the broader public, including manufacturers, small business, service
    providers and environmental, consumer and/or health organizations. EPA
    notes that the U.S. did encourage all interested parties to comment on
    the proposed REACH as the European Commission (EC) conducted an
    internet consultation process in May to July 2003. In response to this
    internet consultation, the EC received approximately 6,400 comments
    from governments, industry, and other organizations worldwide.

        Question 5c. Please clarify whether support by environmental and
    public-health groups for focusing on high-volume chemicals was in the
    context of the U.S. HPV program, or whether such groups also supported
    restricting the scope of REACH to focus solely on high-volume
    chemicals. If the latter, please provide specific details of which
    environmental and public-health groups voiced such support.
        Response. Environmental and public health groups have supported the
    focus on high production volume chemicals in the context of the U.S.
    HPV program. Recognizing the need to set priorities with such a large
    number of chemicals, the HPV priority screen identified a workable
    first tier.

        Question 6. In your testimony, you cited the existence of 90,000
    chemicals used commercially in the U.S. My understanding is that
    approximately 90,000 chemicals have been registered with the
    government, but the true universe of chemicals actually used in
    commerce is significantly smaller. For example, the number of chemicals
    reported on the TSCA Inventory (namely, those produced above 10,000 lbs
    annually aggregated across all producers) is only about 15,000. Is this
    correct?
        Response. There are approximately 90,000 chemicals on the TSCA
    Inventory and of these, approximately 20,000 are new chemicals that
    have been added since the original inventory. In 1986, EPA promulgated
    the Inventory Update Rule (IUR), for the partial updating of the
    production volume data reported to the Inventory. The rule required
    manufacturers of nonpolymeric organic chemical substances included on
    the Inventory to report current data on the production volume and the
    information on these substances if produced or imported at levels of
    10,000 pounds or more per year per site. Based on EPA's analysis of the
    IUR data, there are about 13,000 organic chemicals in commerce at or
    above this level of production. There are an estimated 2,000 inorganic
    chemicals that might be produced above 10,000 lbs per site, resulting
    in approximately 15,000 non-polymeric chemicals that are of interest
    for priority setting purposes.
        The 15,000 estimate does not include organic or inorganic chemicals
    produced below 10,000 lbs nor does it include polymers and there are
    approximately 28,000 polymers among the Inventory chemicals.

        Question 7. You stated in your testimony that the revised version
    of REACH now focuses on the appropriate chemicals of concern. Do you
    view REACH's revised provisions as consistent or inconsistent with the
    express policy statement in section 2(b)(1) of TSCA that 'adequate data
    should be developed with respect to the effect of chemical substances
    and mixtures on health and the environment and that the development of
    such data should be the responsibility of those who manufacture
    [defined to include import] and those who process such chemical
    substances and mixtures.'? If inconsistent, please explain.
        Response. The Agency believes the statement of U.S. policy in
    section 2(b)(1) of TSCA that ``adequate data should be developed with
    respect to the effect of chemical substances and mixtures on health and
    the environment and that the development of such data should be the
    responsibility of those who manufacture and those who process such
    chemical substances and mixtures'' is consistent with aspects of REACH
    addressing the development of data.
                                     ______

         Responses by Stephen L. Johnson to Additional Questions from
                               Senator Lieberman

        Question 1. What steps has EPA undertaken over the last 12 months
    to step up its pollution prevention activities?
        Response. The Agency remains committed to the goals of pollution
    prevention and in the past year alone, has taken dramatic steps. One
    significant effort is the launch of an exciting new program--the Green
    Suppliers Network (GSN)--with industry aimed at greening the supply
    chains of major corporations involved in automobile, aerospace, office
    furniture and healthcare/pharmaceutical manufacturing sectors. Working
    collaboratively with manufacturers, the States, and in partnership with
    the Manufacturing Extension Partnership program in the Department of
    Commerce, the Agency and the business community are finding numerous
    pollution prevention (P2) opportunities within supply chains.
        EPA continues to achieve significant Pollution Prevention
    cooperation with the Healthcare industry through the voluntary
    Hospitals for a Health Environment (H2E) program. To date, there are
    more than 2,200 health care facilities participating in the program and
    hundreds of other organizations, including the Dept. of Veterans
    Affairs and 14 State governments that have joined the H2E effort to
    virtually eliminate the use of mercury and reduce the overall waste in
    the health care industry.
        The Agency is also committed to greening the Federal Government and
    as part of this effort, this year launched a broad initiative within
    EPA to make mandatory the purchasing of green office products and
    supplies. In addition, the Agency has established an online directory
    of environmentally preferable products and services available for sale
    under a pre-negotiated blanket purchase agreement (BPA) with a
    commercial vendor. EPA believes that leading by example and developing
    tools and providing assistance will encourage others in the Federal
    family to join in this effort.
        The Agency also remains committed to the on-going development of
    new tools to be used to further advance pollution prevention. For
    example, EPA's Sustainable Futures program offers powerful chemical
    screening tools to industry, together with training, technical
    assistance, regulatory incentives and assistance to small businesses.
    EPA helps chemical companies use these tools, generally known as
    Structure Activity Relationships (SAR), at R&D to compare alternatives
    for risk-related considerations, potentially leading to the development
    of safer chemicals and therefore, P2 outcomes. Already recognized as a
    world leader in the development and use of Structure Activity
    Relationships (SAR), this effort further builds on our commitment to
    assist industry with prevention tools. Companies participating in
    Sustainable Futures indicate that the program can significantly reduces
    product development costs, reduces generation of chemical waste,
    reduces regulatory uncertainty and reduces time to market. Industry has
    conducted over 20,000 analyses using Sustainable Futures tools in the
    last 12 months. Other significant efforts in the past year include:
         Design for the Environment (DfE)--partnership a voluntary
    program with industry that promotes integrating cleaner, cheaper, and
    smarter solutions into everyday business practices to assist the
    furniture manufacturing industry with the development of safer fire
    retardant materials following the voluntary phaseout of a number of the
    existing chemicals presently being used.
         EPA's Office of Pollution Prevention and Toxics (OPPT)
    established a committee under the Federal Advisory Committee Act
    (FACA), in part, to provide consensus recommendations from a balanced
    group of stakeholders on issues relating to implementation of TSCA and
    the Pollution Prevention Act. As part of this effort, the National
    Pollution Prevention and Toxics Committee (NPPTAC) is exploring
    pollution prevention areas for potential advice and recommendations to
    EPA/OPPT focusing on enhancements and future directions for further
    integrating pollution prevention in our programs. The consensus
    recommendations from this balanced group of stakeholders will assist in
    elevating pollution prevention as the first principle in the hierarchy
    for protecting human health and the environment.
         Major P2 Conference scheduled for April 2004. EPA and the
    National Pollution Prevention Roundtable, are co-hosting the National
    Environmental Assistance Summit 2004. This meeting will bring together
    over 500 environmental assistance providers and Agency and industry
    representatives with the goal of developing partnerships and exchanging
    information that will accelerate the positive environmental impacts of
    compliance assistance, pollution prevention and other innovations.

        Question 2. What has EPA done to facilitate the development of
    industrial biotechnology applications that can prevent pollution?
        Response. EPA strongly supports finding newer ways to advance the
    agenda of environmental protection. Many of EPA's voluntary programs do
    just that. Programs such as the Green Chemistry Challenge, for example,
    are aimed at encouraging industry to develop and implement pollution
    preventing technologies in the traditional chemicals sectors as well as
    in the biotechnology sectors. Biotechnology offers the potential for
    safer product alternatives and lower hazard manufacturing methods and
    also the development of technologies for converting renewable resources
    to energy, fuels, and commodity chemicals. As an incentive, EPA has
    provided awards through the Green Chemistry Challenge Program for
    innovative bio-based products, including several reduced-risk
    pesticides.

        Question 3. Has EPA undertaken, or is EPA planning to initiate,
    activities to educate the manufacturing about new biotech and other
    pollution prevention tools that are becoming available?
        Response. The use or substitution of biotechnology in certain
    industrial processes is an example of the newer approaches that can be
    used to reduce energy inputs and waste outputs. Because the reduction
    of energy inputs and waste outputs can represent monetary savings for
    companies, the Agency believes that outreach and education are
    efficient methods for quickly disseminating knowledge of the potential
    benefits of industrial biotechnology throughout industry. As an example
    of this kind of targeted outreach and education effort, EPA is working
    with its various partners in pollution prevention activities to create
    a workshop on Industrial Sustainability for the National Environmental
    Assistance Summit scheduled for April 21, 2004. The Summit, a joint EPA
    and National Pollution Prevention Roundtable effort, is a conference
    that will attract representatives from States, industry, environmental
    assistance providers and many others. The workshop, entitled Industrial
    Sustainability through Biotechnology, will present and discuss
    biotechnology as it encompasses the use of biological processes to
    perform specific manufacturing processes in the industrial,
    agricultural, and pharmaceutical sectors. Recent work shows that
    biotechnology has tremendous potential to increase sustainability in
    industry and reduce pollution, through reducing both energy inputs and
    waste output.
        Additionally, EPA has an innovative partnership with the National
    Institute of Standards and Technology's Manufacturing Extension
    Partnership (MEP) called the Green Suppliers Network (GSN). This
    program utilizes MEP's State partners to provide assistance that
    enables large manufacturers to actively engage all levels of their
    supply chain in the development of good business approaches to prevent
    pollution. GSN improves performance, minimizes waste generation and
    removes institutional roadblocks through its innovative approach to
    leveraging MEP's national network of manufacturing technical assistance
    resources. With GSN support, suppliers can learn how to improve their
    products and processes, increase energy efficiency, identify cost-
    saving opportunities, and optimize resources and technologies with the
    aim of eliminating waste.

        Question 4. Would congressional direction assist in accelerating
    the use of industrial biotechnology in EPA's Pollution Prevention
    program?
        Response. Because there a number of initiatives presently underway
    that will increase and promote the integration of biotechnology and
    pollution prevention, congressional direction is not necessary at this
    time. The Agency welcomes continued participation from the Committee on
    this issue.
                                     ______

          Response by Stephen L. Johnson to Additional Question from
                                Senator Clinton

        Question 1. As the former Assistant Administrator for OPPTS you are
    very familiar with the me-too registration process and the science EPA
    requires to determine the safety of wood preservative chemicals. On
    January 9, 2004, Antimicrobial Division Director Frank Sanders set
    forth an extensive set of data requirements to determine the risks
    associated with the hexavalent chromium contained in acid copper
    chromate (ACC), an old wood preservative chemistry for which a me-too
    registration is now being sought. Can you assure this Committee that,
    under no circumstances, will EPA grant a me-too registration for ACC
    prior to receiving and reviewing all the scientific data requirements
    set forth in Director Sanders' January 9, 2004 letter?
        Response. Yes, the Agency is working hard on resolving the
    outstanding questions associated with the ACC registration
    applications. EPA is committed to developing a solution that ensures
    that the most economic and environmentally safe wood-treatment products
    are available for consumers. As you mention, on January 9, 2004, the
    Agency sent letters to the potential manufacturers, Arch Wood
    Protection, Inc. and Forest Products Research Laboratory, informing
    them that the Agency was unable to accurately assess the risks that may
    be associated with ACC without additional exposure information. The
    kind of data needed largely relates to how much chromium people would
    be exposed to from treated wood. In order to facilitate the generation
    of this new data, on March 3 the Agency staff met with the applicants.
    To date, the Agency has not received the requested data. Absent of any
    other new information that would resolve the Agency concerns, EPA needs
    the information identified in the January 9 letter before it can
    accurately and thoroughly assess the potential risks and reach a
    decision on the applications.

                                   __________
          Statement of Ann R. Klee, Nominated to be General Counsel,
                        Environmental Protection Agency

        Mr. Chairman, Senator Jeffords, members of the Committee: Thank you
    for providing me with the opportunity to appear before you today. It is
    a great honor and privilege to be here today as the President's nominee
    to be General Counsel of the Environmental Protection Agency. On a
    personal note, as a former Chief Counsel to this Committee, it is also
    a pleasure to be back sitting at counsel's table.
        The Office of the General Counsel plays an important role in
    ensuring that our environmental policies and programs are fully and
    fairly implemented, supported by law, and advance the goals of
    protecting public health and the environment. That is a significant
    responsibility and one that I take seriously. I know from my experience
    as an environmental lawyer that the environmental issues we face
    today--from reducing air emissions of hazardous pollutants to
    controlling nonpoint source pollution to protection of our natural
    resources--are increasingly complex and contentious. Solving those
    issues will require that we work together with open minds to seek
    creative solutions, encourage partnerships, and emphasize results. If I
    am confirmed, I pledge to you that I will do everything in my power to
    work with the dedicated and expert staff in the Office of the General
    Counsel to provide Administrator Leavitt and the program offices with
    sound, unbiased legal analysis to achieve the Agency's mission of
    protecting human health and safeguarding the environment. And I pledge
    to work with you and your staff in carrying out our shared goal of
    environmental protection.
        I have had the privilege over the past 18 years to practice
    environmental law from several different perspectives: as an associate
    and then a partner in private practice, as a Hill staffer, and most
    recently, as a senior executive at the Department of the Interior. I
    learned firsthand that litigation is only one tool and, usually not the
    best one, to solve problems; that bringing parties together to talk
    through issues often leads to innovative solutions; and that when
    Congress and the Administration work together, they can accomplish
    tremendous things.
        I started my career as a litigator. My most significant case, and
    certainly one of the highlights of my career, involved a groundwater
    contamination problem in South Florida. Our client was the city of
    Delray Beach, which was forced to shut down a number of its drinking
    water wells after detecting high levels of various industrial solvents.
    After 2 years of developing the technical case and a 4-week jury trial,
    we were able to identify the source of the contamination--a company
    that had been dumping used solvents on its property for years--and
    obtain a $8.7 million verdict under State law on behalf of the City for
    cleanup costs and future operation and maintenance of the treatment
    structures. The City won the lawsuit, but in reality, the litigation
    did little to achieve real results. To my knowledge, the city of Delray
    Beach still has not collected on the judgment.
        My experience on the Hill underscored for me the importance of
    collaboration and outreach to those with potentially differing
    viewpoints. During my first week as a Senate staffer, this Committee
    reported out the Safe Drinking Water Act Amendments. One year later,
    the Senate passed the bill (S. 1316) by a vote of 99 to 0, and it was
    signed into law a year later by President Clinton. That legislation was
    developed with strong bipartisan support and with the active support
    and engagement of the Administration. It improved public health,
    reduced unnecessary costs, encouraged voluntary measures to prevent
    contamination of water supplies, and incorporated risk assessment
    principles. To my mind, the Safe Drinking Water Act Amendments of 1996
    demonstrates that dialog, partnerships, and innovative thinking are the
    path to better environmental protection. The Safe Drinking Water Act
    served as a model for me on virtually every legislative project that I
    worked on while serving as Chief Counsel of the Environment and Public
    Works Committee and to this day. If I am confirmed, I would hope to
    continue a collaborative relationship with the Committee and its staff
    as we work through the challenging legal issues we face today.
        For the past 3 years, I have served at the Department of the
    Interior as Counselor and Special Assistant to Secretary Gale Norton. I
    have observed daily how collaboration and partnerships can achieve
    significant results on the ground. I have worked with landowners who
    want to take proactive measures to protect wildlife and their habitat;
    I have coordinated Departmental efforts to enhance habitat and preserve
    species, while providing water to farmers and cities; and I have led
    negotiations with States and Tribes to enhance and restore public and
    private lands. As Counselor to the Secretary, I led the Department's
    efforts to restore the Florida Everglades and am particularly proud of
    what we were able to accomplish in just the past 3 years by working
    with our partners in the State and local governments, environmental
    organizations, and private sector. As this Committee knows, Everglades
    restoration is truly a complex venture, raising difficult legal and
    practical questions relating to land management, environmental
    protection, flood control, and growth management. The parties are
    working through these issues together, though. The result is that we
    now have a legal framework in which to implement individual restoration
    projects; we have acquired and preserved thousands of acres of
    Everglades habitat; and have begun construction on the first Everglades
    restoration project.
        I use these three examples from my past environmental practice--
    Delray Beach, the Safe Drinking Water Act, and Everglades restoration--
    because I think that they best illustrate how I approach environmental
    issues. I believe strongly in the framework of our environmental laws
    and regulations and in the enforcement of those laws and regulations.
    Litigation, whether in defense of a regulatory program or in the
    context of an enforcement action, remains an important tool for
    ensuring environmental protection. At the same time, however, I believe
    that we should always look for opportunities to go beyond just what the
    law requires. My experience has always been that communities,
    businesses, and individuals, when given the chance and some
    encouragement, will step up to the plate and come up with a better way
    of protecting and enhancing our environment. My job as a lawyer is to
    help make that happen.
        Throughout my career, I have strived to think independently,
    respect the rule of law, act in accordance with the highest ethical
    standards, and use sound judgment and common sense. I try to listen to
    all sides of an argument, respecting the views of those with different
    perspectives, before making a judgment. My goal is to lead by example
    and learn from others. I hope to have that opportunity in EPA's Office
    of General Counsel.
        Thank you, Mr. Chairman and members of the Committee. I would be
    happy to answer any questions that you may have.

    [GRAPHIC] [TIFF OMITTED] T4600.019

    [GRAPHIC] [TIFF OMITTED] T4600.020

    [GRAPHIC] [TIFF OMITTED] T4600.021

    [GRAPHIC] [TIFF OMITTED] T4600.022

    [GRAPHIC] [TIFF OMITTED] T4600.023

    [GRAPHIC] [TIFF OMITTED] T4600.024

    [GRAPHIC] [TIFF OMITTED] T4600.025

    [GRAPHIC] [TIFF OMITTED] T4600.026

    [GRAPHIC] [TIFF OMITTED] T4600.027

    [GRAPHIC] [TIFF OMITTED] T4600.028

    [GRAPHIC] [TIFF OMITTED] T4600.029

    [GRAPHIC] [TIFF OMITTED] T4600.030

    [GRAPHIC] [TIFF OMITTED] T4600.031

     Responses by Ann R. Klee to Additional Questions from Senator Jeffords
        Question 1. As you may know, the POPs Convention will enter into
    force in May, but the United States is still not a party. This
    Committee adopted legislation in July 2003 amending the Toxic
    Substances Control Act in order to implement the POPs Convention. As I
    understand it, the Administration is raising constitutional concerns
    with provisions that require domestic notice and comment when new
    chemicals are proposed for control under the POPs Convention.
        However, there are currently U.S. laws implementing international
    agreements that require executive agencies to act in response to
    decisions taken by an international body, such as the Clean Air Act
    provisions that require EPA to issue regulations if the parties to
    Montreal Protocol agree to hasten the phase-out schedule for certain
    substances.
        There are similar provisions in the implementing legislation for
    the Chemical Weapons Convention and the North American Free Trade
    Agreement. Do you think that all of these provisions are
    unconstitutional, and would you so advise the Administrator?
        Response. I am aware that the United States is a signatory to the
    Convention on Persistent Organic Pollutants (POPs Convention). I also
    understand that certain conforming legislative amendments to the
    Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the
    Toxics Substances Control Act (TSCA) are required for ratification. I
    have been told that EPA is working closely with Congressional staff of
    the House and Senate committees of jurisdiction to draft mutually
    agreeable text for amendments to those statutes in order to ratify the
    POPs Convention as soon as possible.
        I am not familiar with the constitutional issue that you raise.
    With regard to constitutional issues raised in the context of legal
    issues arising at EPA, I would expect, if confirmed, to advance EPA's
    interests while coordinating closely with the Department of Justice. If
    confirmed, I further pledge to work with the Committee and staff to
    resolve any legal issues relating to implementation of the POPs
    Convention. .

        Question 2. Under Section 302(g) of the Clean Air Act, ``the term
    `air pollutant' means any air pollution agent or combination of such
    agents, including any physical, chemical, biological, radioactive
    (including source material, special nuclear material, and byproduct
    material) substance or matter which is emitted into or otherwise enters
    the ambient air. Such term includes any precursors to the formation of
    any air pollutant, to the extent the Administrator has identified such
    precursor or precursors for the particular purpose for which the term
    'air pollutant' is used.''
        Is carbon dioxide a ``chemical substance''? Is carbon dioxide
    ``emitted into the ambient air''? If carbon dioxide is a ``chemical
    substance which is emitted into the ambient air,'' then it seems to
    fall within the Clean Air Act's definition of an air pollutant, don't
    you agree?
        Response. I understand that on August 28, 2003, OGC's General
    Counsel, Robert Fabricant, signed a legal opinion in which he concluded
    that the CAA does not authorize regulation of carbon dioxide or other
    greenhouse gases to address climate change. Based on his belief that
    the CAA did not authorize regulation to address climate change, Mr.
    Fabricant also concluded that carbon dioxide was not an air pollutant
    under the Clean Air Act's regulatory provisions.
        Given that the Agency has expressed a position on the scope of the
    applicability of Section 302(g) of the Clean Air Act with respect to
    carbon dioxide, I would not anticipate revisiting that position at this
    time.

        Question 3. It is my understanding that section 112 of the Clean
    Air Act lists mercury as a hazardous air pollutant subject to
    regulation. It is also my understanding that EPA concluded in its
    published finding in the year 2000 that regulation of mercury from
    power plants was ``appropriate and necessary'' within the meaning of
    section 112. Do you agree that as a matter of law--absent withdrawal of
    the regulatory determination which has not occurred--the Agency is
    therefore obligated under section 112 to regulate mercury emissions
    from power plants by prescribing the maximum achievable control
    technology and requiring its installation?
        In the 1998 settlement agreement between the Natural Resources
    Defense Council and the EPA the Agency committed to promulgating a
    section 112 standard for mercury emissions from power plants by
    December 2003. The Agency's recent proposals related to mercury are not
    consistent with the Agency's commitments under that agreement.
        As the official at EPA responsible for signing off on legally
    binding settlement agreements, I assume it would be your intention to
    abide by these agreements according to their terms.
        Would you expect that the Agency would abide by settlement
    agreements to which it is a party even if those agreements were signed
    by a prior Administration?
        Response. I am aware that in January of this year, EPA issued two
    proposals to regulate mercury emissions from utilities, including a
    proposed MACT standard for mercury emissions. I am not familiar with
    the legal theories articulated as a basis for those proposals. I am
    also unfamiliar with the details of the settlement agreement that you
    reference addressing mercury emissions. If confirmed, however, I would
    expect to review any legal issues raised by the final regulations
    governing mercury emissions to ensure compliance with the Clean Air Act
    and consistency with the settlement agreement.
        As a general matter, if confirmed as General Counsel, I would
    strongly advise EPA client offices to abide by the commitments made in
    either settlement agreements or consent decrees. That advice would not
    depend on when the commitment on behalf of the Agency had been made.

        Question 4. The EPA General Counsel is responsible for providing
    legal advice to the Agency, including alerting top management when
    options under consideration involve significant legal risk. On
    occasion, potential policies are not just risky, but squarely counter
    to Federal law. As a Presidential appointee confirmed by the US Senate
    to uphold the Constitution and the law of the land, will you commit to
    forcefully objecting if the Administration wants to pursue policies
    that are legally indefensible?
        Response. As I stated in my confirmation hearing, one of the
    attributes that I believe that I bring to this job, if confirmed, is
    that of independent judgment. I agree that if I were to become the
    General Counsel, an important aspect of that job is ensuring that
    policy decisions are informed by a thorough understanding of the
    legally available options and of the risks associated with those
    options. I would not be hesitant to express those views.

                                   __________

    Statement of Charles Johnson, Nominated to be Chief Financial Officer,
                      U.S. Environmental Protection Agency

        Mr. Chairman, Senator Jeffords, and Members of the Committee, it is
    a great privilege to appear before you today as the nominee of
    President George W. Bush to serve as Chief Financial Officer (CFO) of
    the Environmental Protection Agency (EPA). It is also a privilege to
    seek concurrence from this Committee that I am qualified, both by
    skills and by personal character, to hold this trusted position. If
    recommended to and confirmed by the U.S. Senate, it will be a further
    privilege to again associate with Michael O. Leavitt, Administrator of
    the EPA and a man I deeply respect.
        As I begin, let me thank you and your staffs for every courtesy
    extended to me in the preparation for this hearing. At all times I was
    treated respectfully and professionally and, if confirmed, it will be
    my intention to reciprocate in working with you and your staffs.
        The Office of the Chief Financial Officer at EPA is core to the
    success of the Environmental Protection Agency. The CFO Office Mission
    Statement reflects its comprehensive responsibilities for developing,
    managing, and supporting an Agency-wide goals-based system that
    involves strategic planning and accountability for environmental,
    fiscal, and managerial results. How an agency spends its money reflects
    its true priorities. As part of the management team, the CFO oversees
    budget formulation, preparation, and execution and is accountable for
    resources management and financial management functions that include
    analysis and annual planning, as well as controls and systems for
    payroll and disbursements. The office of the CFO is also responsible to
    look to the future and aid the management team in long-term thinking.
        With 31 years in the practice of public accounting, including
    service as a member of the Board of Directors of one of the nation's
    largest firms, I believe I have demonstrated the financial competence
    as well as managerial leadership abilities to assume such a post. As
    Utah's Director of the Office of Planning and Budget, and as then
    Governor Leavitt's Chief of Staff, I have demonstrated these same
    qualities in the public sector. I take the public accountability very
    seriously.
        I have learned much from my past experiences. I have developed
    financial skills from my years in public accounting that will guide me
    in the fiduciary responsibilities over the Agency's financial
    resources. I know from my government experience of the need to be up-
    front and open in providing information to constituencies. I have
    learned that all budgets are exercises in comparisons and hard choices
    have to be made. From my service as Chair of the Utah State Board of
    Regents, I have found the continuing need to allocate funds to programs
    and necessary research and to reduce unnecessary administrative costs.
    From my day-to-day dealings with citizens, I have found taxpayers
    willing to give government responsibility over their taxes only when
    they believe that spending goes for the common good of the country and
    to the benefit of its citizens.
        The past has been excellent preparation for the job to which I have
    been nominated.
        That being said, I know the broad array of financial issues
    confronting EPA are more than just complicated financial questions.
    They are, fundamentally, the questions that address EPA's stewardship
    of the nation's air, water, and land. Being true to the fiduciary
    responsibilities I mentioned earlier is the best way I know for me to
    help EPA fulfill this stewardship role.
        It is clear that the EPA has many large and complex issues before
    it. But it is also clear that addressing these issues successfully will
    require the collaboration of everyone in this room. As Administrator
    Leavitt said in his confirmation hearing, ``Every significant step of
    environmental progress . . . has been a product of collaboration.'' I
    want to be a catalyst for collaboration. I want to do this to serve the
    Administration, the Administrator, and the American people.
        I also would like to say what a pleasure it will be to be
    associated with the men and women that make up the staff of the Office
    of the CFO. They are a very dedicated group of people, equally focused
    on their profession and their professionalism. They care about
    immediate tasks and ultimate goals in pursuit of EPA's mission. I will
    be proud to serve with each and every one of them.
        Mr. Chairman, I have spent a lifetime in building trust,
    confidence, and respect for moments such as this and I want you to know
    that if I am fortunate enough to be confirmed, I look forward to
    serving the people of the United States of America to the best of my
    ability. I again thank you and the Members and staff of this Committee
    for every courtesy extended to me and am ready to address any questions
    you and the Members of this Committee may have.
        Thank you, Mr. Chairman.

        [GRAPHIC] [TIFF OMITTED] T4600.032

        [GRAPHIC] [TIFF OMITTED] T4600.033

        [GRAPHIC] [TIFF OMITTED] T4600.034

        [GRAPHIC] [TIFF OMITTED] T4600.035

        [GRAPHIC] [TIFF OMITTED] T4600.036

        [GRAPHIC] [TIFF OMITTED] T4600.037

        [GRAPHIC] [TIFF OMITTED] T4600.038

        [GRAPHIC] [TIFF OMITTED] T4600.039

        [GRAPHIC] [TIFF OMITTED] T4600.040

    Statement of Benjamin Grumbles, Nominated to be Assistant Administrator
                for Water, U.S. Environmental Protection Agency

        Mr. Chairman, Senator Jeffords, Members of the Committee, thank you
    for the opportunity to testify before you today as the nominee for the
    position of Assistant Administrator for Water at the United States
    Environmental Protection Agency. I am grateful to President Bush,
    Administrator Leavitt, and to this Committee for considering me for
    this position and its challenging and exciting responsibilities.
        Since 1985, I have been blessed with several opportunities to serve
    in the House of Representatives as Counsel to the House Transportation
    and Infrastructure Committee, Subcommittee on Water Resources and
    Environment, and as Deputy Chief of Staff and Environmental Counsel for
    the House Science Committee. Since 2002, I have been at the U.S.
    Environmental Protection Agency. While in these positions, I have
    poured most of my energy into enacting, overseeing, and now
    implementing key pieces of America's landmark water laws the Clean
    Water Act, the Safe Drinking Water Act, Ocean Dumping Act, and the
    Water Resources Development Act.
        It is my honor to appear before this Committee because, through it
    all, you and your colleagues have articulated the vision, forged the
    coalitions, and overseen the progress in protecting the environment,
    and providing the infrastructure and jobs to keep America strong and
    healthy. I aspire to do the same at the Environmental Protection
    Agency's Office of Water, should I be confirmed.
        On the waterfront, so to speak, we have seen dramatic progress, but
    we face complex challenges. Nonpoint source runoff and other ``wet
    weather flows'' including sewer overflows and stormwater discharges,
    and protective yet affordable drinking water regulations, will continue
    to demand attention, innovation, and flexibility.
        Administrator Leavitt has articulated a ``better way'' for the
    Agency that will accelerate the environmental progress being realized
    over the past thirty years while maintaining our national economic
    competitiveness. Collaboration and innovation are two of several key
    components, and the National Water Program will continue to advance
    both. Regional collaborations, such as those in the Great Lakes and the
    National Estuaries Program, and water quality trading are prime
    examples. Such efforts will also continue.
        Administrator Leavitt has recently articulated a 500 Day Plan for
    water that focuses on three key areas: monitoring, wetlands, and
    coastal watersheds. Since assuming the position of Acting Assistant
    Administrator for Water in December 2003, I have also emphasized
    monitoring, conservation, and restoration. For me, conservation means
    not only conservation of wetlands but also water use efficiency. I look
    forward to progress in sustaining America's infrastructure through
    conservation, full-cost pricing, and other mechanisms including the
    Agency's emerging ``Water Star'' program, modeled on Energy Star, to
    encourage voluntary labeling of water efficient products and
    appliances. Restoring watersheds and coastal waters is also a priority
    of mine particularly when one considers that over half of the country's
    population lives near the coast and one of every six jobs in the U.S.
    is marine related.
        Mr. Chairman, I commit to you and your colleagues my complete
    energy and enthusiasm in working to keep America's waters clean, safe,
    and secure and in the pursuit of what Administrator Leavitt
    characterizes as the ``productive middle'' using collaboration and
    innovation to achieve sustainable results.
        Last, and no doubt most importantly, I want to thank my family and
    friends, many of whom include current and former staff, for their
    support and endurance. Managing water is truly a team effort.
        Mr. Chairman, I look forward to any questions you and your
    colleagues may have.

    [GRAPHIC] [TIFF OMITTED] T4600.041

    [GRAPHIC] [TIFF OMITTED] T4600.042

    [GRAPHIC] [TIFF OMITTED] T4600.043

    [GRAPHIC] [TIFF OMITTED] T4600.044

    [GRAPHIC] [TIFF OMITTED] T4600.045

    [GRAPHIC] [TIFF OMITTED] T4600.046

    [GRAPHIC] [TIFF OMITTED] T4600.047

    [GRAPHIC] [TIFF OMITTED] T4600.048

         Responses by Benjamin H. Grumbles to Additional Questions from
                                 Senator Inhofe

        Question 1. I would like to get your views on the water
    infrastructure financing. You have worked on this issue as both a
    Committee staffer and an EPA official so you have a unique perspective
    to provide. EPA has sent some signals recently that the Agency believes
    better management of systems would fill the gap. However, the greatest
    contributor to the problem seems to be that these systems are at the
    end of their useful life at the same time new requirements are being
    imposed.
        In your view, what is the cause of the funding gap and what do we
    need to do to address it? What do you think is the appropriate Federal
    role in helping towns and cities meet these costs?
        Response. There are several reasons for the funding gap. Our
    wastewater and drinking water systems are aging. Treatment plants
    typically have an expected useful life of 20-50 years before they
    require expansion or rehabilitation. Also, populations are increasing
    and shifting geographically and our treatment systems will need to
    increase capacity to meet the demands posed by this growth. Last,
    current levels of treatment may not be sufficient to address today's
    water pollution control problems.
        Over the past 20 years communities have spent more than $1 trillion
    (in 2001 dollars) on drinking water treatment and supply and wastewater
    treatment and disposal. As a Nation, we will be challenged to ensure
    that we can keep pace with the infrastructure needs of the future.
    Utilities and their local communities must provide the primary sources
    of funding to meet those needs. While Federal and State funding can
    help water utilities meet future needs, other strategies may be
    appropriate for addressing these challenges, including more targeted
    operations and maintenance efforts.
        Currently, the Agency is working to implement a sustainable
    infrastructure strategy to enhance the operating efficiencies of water
    and wastewater systems. This involves four pillars:
        (1) Better Management--Better management practices like asset
    management, environmental management systems, consolidation, and
    public-private partnerships can offer significant savings for water
    utilities--both large and small.
        (2) Full-Cost Pricing--A key consideration in constructing,
    operating and maintaining infrastructure is ensuring that there are
    sufficient revenues in place to support the costs of doing business.
    Sensible pricing can also have the added benefit of encouraging
    efficient water use.
        (3) Efficient Water Use--One way to reduce the need for costly
    infrastructure is to better manage uses of water. There are many
    options for enhancing water efficiency including metering, water reuse,
    water-saving appliances, landscaping and public education.
        (4) Watershed Approaches to Protection--In addressing
    infrastructure needs for the purposes of water supply and water
    quality, it is important to look more broadly at water resources in a
    coordinated way. Targeting resources toward highest priorities,
    permitting on a watershed basis and water quality trading are all means
    of ensuring that actions achieve the greatest benefit.
        EPA has been working in partnership with municipalities and States
    to continue to provide high quality management services to address
    their wastewater and drinking water needs. The wastewater
    infrastructure needs of towns and cities are growing and we are
    collaborating with State and local officials to develop strategies,
    approaches, and tools to address their environmental needs.
        The President's 2005 Budget proposes an annual funding level of
    $850 million through 2011 for the Clean Water State Revolving Fund and
    2018 for the Drinking Water State Revolving Fund. I support the
    President's budget request as an appropriate Federal contribution to
    help meet the funding needs of utilities. We are working to encourage a
    greater State role in providing financial assistance for cost-
    reasonable technologies to ensure water quality and human health needs
    are met.

        Question 2. EPA has been promoting trading and watershed permits as
    innovations to assist municipalities in meeting their regulatory
    obligations while protecting water quality. I am pleased to hear you
    testify that you will follow Governor Leavitt's mission of using
    collaboration and innovation to achieve sustainable results. As you
    know, I have a lot of concerns about the costs we are imposing on local
    systems and the science behind many of these regulations. The Agency
    and Congress must continue to pursue different approaches to achieving
    our water quality objectives which can be done sensibly without
    bankrupting local ratepayers.
        Will you create an atmosphere in which stakeholders are encouraged
    and given the flexibility to use these innovative tools and the writers
    of these regulations are encouraged to think outside the box for new,
    more cost-effective approaches?
        Response. EPA is promoting trading and watershed permits because
    the Agency believes these tools can achieve water quality standards be
    cost-effective for businesses and municipalities. The Agency is
    committed to encouraging trading and the watershed approach throughout
    the water program. As an example, OW is working with Regions, States,
    and permittees to identify and promote case studies of successful
    watershed-based permitting and water quality trading. Examples of these
    innovations are being documented and pilot studies have been developed
    to test different approaches for implementation in the NPDES and non-
    point source programs. EPA believes that developing and issuing NPDES
    permits on a watershed basis can benefit all watershed stakeholders. In
    addition to increased environmental results, many of these benefits
    involve administrative efficiencies. I wholeheartedly endorse the
    approach established by this Administration and intend to continue to
    promote the use of innovative and flexible approaches to achieve water
    quality goals. I am also interested in other innovative approaches that
    will help accelerate our progress in meeting water quality standards.

         Responses by Benjamin H. Grumbles to Additional Questions from
                                Senator Jeffords

        Question 1. In my home State of Vermont, stormwater runoff is a
    major source of pollution in the States' waterways. Paved surfaces such
    as parking lots, roads, and highways are the major contributors of
    stormwater pollution. Communities in Vermont struggle daily to find
    ways to use limited resources to pay for stormwater protections. Can
    you describe your perspectives on the magnitude of the stormwater
    runoff issue, the comparative size of Federal funding assistance
    available to States and communities and the size of the need, and the
    impact that additional funds could have on improving water quality by
    reducing the impacts of stormwater runoff?
        Response. EPA compiles data on water quality impairments and
    sources of impairments consistent with the requirements of Section
    305(b) of the Clean Water Act. The most recent biennial report for
    which data are available is from calendar year 2000 (2000 National
    Water Quality Inventory Report). In that report, EPA presents data
    independently for three significant types of waterbodies: rivers and
    streams, lakes and reservoirs, and coastal resources. The report
    defines a number of categories for sources of waterbody impairments.
    One of the categories is Urban Runoff/Storm Sewers. Other sources of
    impairment, such as Hydrologic Modification, are also likely related to
    storm water. Following is impairment data for each of the waterbody
    types:
        Rivers and Streams: 39 percent of assessed miles are impaired and
    Urban Runoff/Storm Sewers is a source of impairment in 13 percent of
    the impairments.
        Lakes: 45 percent of assessed acres are impaired and Urban Runoff/
    Storm Sewers is a source of impairment in 18 percent of the
    impairments.
        Coastal Resources: 51 percent of assessed square miles are impaired
    and Urban Runoff/Storm Sewers is a source of impairment in 32 percent
    of the impairments.
        The 2000 Clean Watersheds Needs Survey documented $5.5 billion in
    storm water management program needs from 19 States and the District of
    Columbia. These needs include the capital costs for developing and
    implementing municipal storm water management programs to meet the
    requirements of Phases I and II of the National Pollutant Discharge
    Elimination System storm water regulations. Not all States submitted
    storm water management program needs.
        The most prominent funding programs that provide money for storm
    water projects are the Clean Water State Revolving Fund, Water Quality
    Cooperative Agreements (CWA section 104(b)(3)), and Nonpoint Source
    Implementation Grants (CWA section 319). EPA does not track funding
    specifically for storm water management in all grant programs, mainly
    because of the multi-faceted nature of storm water management. EPA does
    have data indicating that between 1991 and 2003, the Clean Water State
    Revolving Fund has provided $216 million in loans for Storm Sewers.
    This investment excludes the investment in combined sewer overflow
    (CSO) and sanitary sewer overflow (SSO) correction. The Clean Water
    State Revolving Fund also provided loans totaling over $1.7 billion for
    nonpoint source projects between 1990 and 2003, many of which addressed
    storm water runoff from urban and rural areas. For Section 319 grants,
    EPA estimates that from FY1994 to FY2002, at least $100 million was
    used for urban runoff projects. Additionally, EPA regularly funds storm
    water projects under Section 104(b)(3) cooperative agreements and in
    recent years has funded more than $5 million in storm water management
    projects. EPA will continue to work collaboratively with States and
    municipalities to reduce/mitigate the environmental impacts of urban
    runoff. EPA will continue to encourage municipalities to use the
    Federal and State funding sources available to achieve the goals of the
    Clean Water Act.

        Question 2. Much progress has been made since the 1970's on
    improving water quality in this Nation, primarily by focusing on point
    source pollution. It is generally believed that the next major step
    forward in improving water quality is reducing non-point source
    pollution, including the addition of phosphorus to our waters. However,
    this is a challenging issue.
        In my home State of Vermont, farmers are constantly struggling to
    do the right thing by the environment while still meeting their bottom
    line. In addition, urban stormwater runoff in Vermont is a major
    contributor to water quality problems and in many ways just as
    difficult to address as agricultural runoff.
        Small communities struggle with limited resources to do the right
    thing for the environment. What are your ideas about how we can make
    progress on non-point source pollution?
        Response. Nonpoint source pollution and diffuse point source
    pollution, such as urban stormwater, constitute one of the most
    significant remaining water quality challenges in the United States.
    For example, the States have reported that the five leading sources of
    impairments to rivers and streams are agriculture, hydrologic
    modification, habitat modification, urban runoff/storm sewers, and
    forestry. For lakes, the situation is very similar. These sources in
    many cases contribute excess sediment, pathogens, nitrogen and
    phosphorus that can result in impairment of water quality.
        To make progress on nonpoint source pollution, EPA believes that it
    is important to use available programs and resources as effectively as
    possible. Strengthening States' implementation of watershed-based
    approaches to solving water quality problems will be a key factor in
    reducing water quality impairments as well as preventing new water
    quality problems. In accordance with EPA guidelines for the Section 319
    nonpoint source grants, beginning in fiscal year 2002, States are
    devoting $100 million per year to develop and implement watershed-based
    plans that identify the significant sources of water quality
    impairments and threats; the most effective measures and practices that
    will be needed to achieve and maintain water quality standards; the
    funding sources and authorities that are available to implement those
    effective measures and practices; and a process to work with local
    governments and citizens to assure implementation. EPA expects that
    these concerted efforts will result in numerous successful projects
    that will restore impaired waters and protect good-quality waters from
    degradation.

        Question 3. In the Administration's fiscal year 2005 budget, the
    Clean Water Act section 319, non-point source program is reduced by
    almost $30 million from the fiscal year 2004 enacted level of $238
    million. In the 2000 National Water Quality Inventory Report, the
    Agency identifies non-point source pollution as the leading source of
    water quality impairment. As Assistant Administrator for Water, what
    actions will you take to ensure that forward progress is made on non-
    point source pollution?
        Response. EPA is working with the States to strengthen the use of
    watershed-based planning and implementation to assure that problems are
    clearly identified and quantified and that appropriate solutions are
    then identified and implemented. In addition, EPA believes that the
    challenge of solving and preventing nonpoint source pollution will be
    successfully addressed only if all stakeholders are actively engaged in
    working toward this common goal.
        Since agriculture is a leading source of nonpoint source pollution,
    EPA believe that effective implementation of the Farm Bill will be a
    key component of successful nonpoint source pollution control efforts
    in virtually every State. EPA is working closely with USDA, and
    promoting close cooperation between water quality and agricultural
    interests at the State and local level, to promote the use of the
    financial and technical resources made available by the Farm Bill to
    restore and protect water quality. Similar cooperative relationships
    among EPA and other Federal agencies, our respective counterparts at
    the State and local level, private-sector stakeholders, and local
    citizens will be necessary to assure that we collectively can restore
    and maintain our Nation's waters.
        Federal funds provide approximately $200 million annually in direct
    support for nonpoint source control projects. Our Targeted Watershed
    Grants Programs provide support for locally driven watershed protection
    efforts, a significant portion of which are directed at nonpoint source
    pollution.

        Question 4. Do you believe that the water infrastructure spending
    gap is real?
        Response. Yes, I accept the results of EPA's September 2002 Clean
    Water and Drinking Water Infrastructure Gap Analysis, which highlighted
    the funding gap that could result in the absence of increases in
    spending to address future needs. Our wastewater and drinking water
    systems are aging and maintenance has been deferred in many areas.
    Treatment plants typically have an expected useful life of 20-50 years
    before they require expansion or rehabilitation. Also, populations are
    increasing and shifting geographically and our treatment systems will
    need to increase capacity to meet the demands posed by this growth.
    Last, current levels of treatment may not be sufficient to address
    today's water pollution control problems.
        However, it is important to note that while the spending gap is
    real, this does not mean it is inevitable. The magnitude of the gap can
    be managed by changes in business and infrastructure practices. More
    appropriate pricing of services, competitive practices, asset
    management, technology innovations and life extension strategies can
    all help to reduce the gap in the future. The Agency's fiscal year 2005
    sustainable infrastructure budget initiative is aimed at promoting
    these and other practices that will help to address the gap.

        Question 5. Do you believe that the water infrastructure spending
    gap is a water quality problem?
        Response. While we have not projected the potential water quality
    effects of the water infrastructure spending gap, we do have estimates
    of current impact from the 2000 305(b) reports on water quality. Those
    reports identify municipal point sources among the sources of
    impairment for a portion of the waters assessed. For example, for the
    almost 700,000 miles of rivers and streams assessed, States identified
    municipal point sources as a source of impairment for almost 30,000
    miles.
        Unless we address our aging infrastructure, we can expect to
    experience a decline in service quality, which will impact both public
    health and water quality. The municipalities that are at the forefront
    of change see that reducing life-cycle costs and increasing revenues
    are necessary to maintain and even improve community standards.

        Question 6. The President's Budget proposes over a 30 percent
    reduction in funds for the Clean Water SRF. EPA's own numbers show a
    huge funding gap for water infrastructure spending. National opinion
    polls show that Americans are willing to pay for Clean Water
    protections. Why is there such a disconnect between what is needed and
    what the administration is requesting?
        Response. The Administration understands the value of
    infrastructure and the needs facing States and communities. The fiscal
    year 2004 budget proposed to continue funding the CWSRF through 2011.
    This extended funding is projected to close the $21 billion gap between
    current capital funding levels and future water infrastructure capital
    needs estimated by EPA. The President's Budget for fiscal year 2005
    continues to reinforce this Federal commitment.
        The Agency recognizes that closing the gap also requires actions
    and innovations to reduce the demand for infrastructure, including
    better management, conservation (or smart water use), and
    intergovernmental cooperation through the watershed approach.
        In the fiscal year 2005 President's Budget, the Agency is proposing
    a sustainable infrastructure initiative where we will work in
    partnership with States, the water utility industry, and other
    stakeholders to ensure sustainability of water and wastewater systems.
    Funds are also included to continue developing a ``Water Star Program
    (water efficiency product labeling) to advance voluntary water
    conservation efforts.

        Question 7. As Assistant Administrator for Water, do you intend to
    focus on management reforms, such as the use of asset management, as a
    means to achieving cost savings that will reduce the spending gap? If
    so, how do you propose to get utilities to adopt these management
    reforms? What is your estimate of the cost savings that will result
    from a single utility and from an industry-wide adoption of management
    reforms such as asset management and when will they be realized? By how
    much will these cost savings reduce the backlog?
        Response. We believe that the utilities in this country can be
    positively influenced by the improvements and cost savings that are
    achievable through sustainable management techniques such as
    environmental management systems and advanced asset management.
        Utilities, as service providers, take pride in their efforts and
    accomplishments and do not want to see their ability to provide safe
    drinking water and high quality wastewater treatment decline as their
    infrastructure ages. Within the industry, forward thinking and
    innovation are making a difference. For example, the Orange County
    Sanitation District invested in advanced asset management planning and
    reduced the life cycle cost of their capital improvement program at a
    return of ten times their investment. Seattle Public Utilities invested
    in improvements to their infrastructure management and was able to
    identify savings from the approved 2004 budget of 13 percent for
    capital improvements and 7 percent for operating expenses. These
    utilities are not alone. Across the country, many utilities are
    pursuing improved, sustainable management techniques. Utilities that
    have invested in improved practices have begun to see savings within
    one to 2 years.
        While the Agency has not done an official assessment of the costs
    savings from such reforms, an assessment of Australia's advanced asset
    management practices suggests that a 20-30 percent savings in life
    cycle costs is possible for many U.S. utilities. EPA intends to work
    collaboratively to encourage utilities to undertake voluntary efforts
    to adopt management reforms. These efforts, in combination with
    efficient water use, intergovernmental cooperation through the
    watershed approach, full-cost pricing, and the President's commitment
    to extend Federal capitalization of the State Revolving Fund
    infrastructure financing programs are projected to help utilities close
    the gap.

        Question 8. Is the Agency reviewing the public education
    requirements of the lead and copper rule to determine if they are
    adequate? If so, please provide the status of this review, including an
    expected end date.
        Response. In response to the situation in the District's drinking
    water, I have asked my staff to take a wide-ranging look at the
    implementation of the Lead and Copper Rule, which will include a review
    of public education requirements. This review will be carried on
    throughout 2004 and is expected to include an expert workshop to
    discuss risk communication and public education requirements of the
    rule. Currently my staff is working with Region 3 staff to conduct a
    review of the DC Water and Sewer Authority's public education efforts
    in order to provide them with recommendations as to how they can
    improve public education. As part of that effort, the team is reviewing
    public education material from systems across the country. In 2002, EPA
    released an updated version of its Public Education Guidance for the
    Lead and Copper Rule. The guidance, while not binding, stresses the
    importance of tailoring education material for different audiences,
    involving the community by establishing a task force to guide efforts,
    and effectively using mass media to reach all consumers. The review we
    undertake may help us to identify additional practices and examples of
    effective public education campaigns that we will be able to promote
    for use throughout the country.

        Question 9. Has the Agency reviewed lead testing results in other
    areas of the country to identify any situations similar to the
    Washington, DC situation? If so, which areas have been reviewed and
    what are the results of those reviews? Are there any other locations
    where similar problems have emerged?
        Response. My staff is currently undertaking an effort to identify
    whether the high levels observed in Washington, DC are representative
    of other areas in the country. We are reviewing information in our Safe
    Drinking Water Information System (SDWIS) and also reviewing Consumer
    Confidence Reports from a number of utilities. Our analysis is hindered
    by the fact that data in SDWIS is currently incomplete. Although States
    could report since 2000, they were only required to report 90th
    percentile lead levels for all systems serving more than 3,300 staring
    in 2002. For the period between 2000 until January 2004, we only have
    data for 22 percent of required systems and have no data for 23 States
    and Puerto Rico.
        From data we currently have, only 4 of 199 systems serving more
    than 50,000 people (2.0 percent) exceeded the action level, one of
    which was DC. All of these systems except for DC are now back below the
    action level. For systems serving between 3,300 and 50,000 people, 56
    of 1,761 systems (3.2 percent), exceeded the action level, with only 14
    reported to exceed the level since 2002. We also reviewed 109 recent
    Consumer Confidence Reports for systems serving more than 50,000 people
    that had exceeded the action level in the initial sampling conducted in
    1991 and 1992. Only 9 systems reported that they had exceeded the
    action level in the last several years--one of these systems was DC and
    another was a customer of another system on the list. We are working to
    determine the current status of these systems, but know that at least
    three of them are now testing below the action level.
        On March 25, 2004, I sent a letter to Regional Administrators to
    ask that they work with State programs to ensure that EPA has complete
    information on lead levels. As we obtain additional information from
    States, we will be able to better determine and report on the number of
    systems that have exceeded the action level. However, discussions with
    States and associations representing utilities indicate that they have
    not observed high levels nor the rapid increase of lead levels in
    drinking water observed in DC.

        Question 10. Can you describe the major changes that occurred in
    the Agency's drinking water program for lead contamination as a result
    of the 1991 lead and copper rule?
        Response. Unlike most contaminants, lead is not generally
    introduced to drinking water supplies from the source water. The
    primary sources of lead in drinking water are from lead pipe, lead-
    based solder used to connect pipe in plumbing systems, and brass
    plumbing fixtures that contain lead. An interim standard for lead in
    drinking water of 50 micrograms per liter, or parts per billion (ppb),
    had been established in 1975, which did not require sampling of
    customer taps. Setting a standard for water leaving the treatment plant
    fails to capture the extent of lead leaching in the distribution system
    and household plumbing. In 1988, the Agency proposed revisions to the
    standard and issued a final standard in 1991 which significantly
    changed the regulatory framework.
        The rule requires systems to optimize corrosion control to prevent
    lead and copper from leaching into drinking water. Large systems
    serving more than 50,000 people were required to conduct studies of
    corrosion control and to install the State-approved optimal corrosion
    control treatment by January 1, 1997. Small and medium sized systems
    are required to optimize corrosion control when monitoring at the
    consumer taps shows action is necessary.
        To assure corrosion control treatment technique requirements are
    effective in protecting public health, the rule also established an
    Action Level (AL) of 15 ppb for lead in drinking water. Systems are
    required to monitor a specific number of customer taps, according to
    the size of the system. If lead concentrations exceed 15 ppb in more
    than 10 percent of the taps sampled, the system must undertake a number
    of additional actions to control corrosion and to inform the public
    about steps they should take to protect their health. If a water
    system, after installing and optimizing corrosion control treatment,
    continues to fail to meet the lead action level, it must begin
    replacing the lead service lines under its ownership.

        Question 11. The SDWA definition of ``lead-free'' fixtures
    currently allows those fixtures to contain 8 percent lead. Are there
    fixtures available that are truly ``lead-free''? Has the Agency taken
    any steps to share this information with consumers? If not, please
    explain how the Agency anticipates that consumers will obtain
    information about lead-free fixtures.
        Response. The fixtures that meet the ``lead free'' requirements of
    the SDWA may contain a maximum of 8 percent lead. The amount of lead
    contained in a plumbing product is usually governed by its
    manufacturing process and natural impurities in the alloy. Fixtures
    containing levels of lead less than 8 percent are manufactured and are
    available at a slightly higher cost to consumers.
        The Agency has made an effort to inform consumers about the ``lead
    free'' requirements of the SDWA. The information is included in Agency
    outreach material, is on the Agency website, and is provided through
    the SDWA Hotline. However, the Agency does not provide information
    about the lead content of specific brands of fixtures. NSF
    International has information on their website about products that meet
    the NSF standard. NSF recommends that consumers who are interested in
    finding out how much lead is contained in a product contact the
    manufacturer or the importer/distributor and ask for a certificate of
    lead content.

        Question 12. Has EPA initiated any enforcement actions against WASA
    with regard to the current lead contamination issue? How many
    enforcement actions has the EPA taken under the provisions of the lead
    and copper rule adopted in 1991? Please provide a summary of each of
    those enforcement actions, including the cause of the action, the
    public water system involved, and the resolution.
        Response. EPA has not yet issued a formal enforcement action
    against the DC Water and Sewer Authority (WASA). EPA's Region 3 office
    has been conducting an audit of WASA's compliance with the Lead and
    Copper Rule over the past several weeks. Although the compliance audit
    is still underway, the Region's Water Division Director sent a letter
    to WASA on March 31, 2004, notifying them that the Region has
    identified six potential matters for non-compliance. The letter
    provides WASA 21 days in which to respond as to whether it disagrees
    with EPA's assessment and to provide additional information in support
    of their position. On that same date, the Water Division Director also
    issued an Information Request pursuant to section 1445(a) of the Safe
    Drinking Water Act, requesting information that will allow the Region
    to further evaluate whether WASA has violated provisions of the
    regulation. Depending on the response to the Information Request an
    Administrative Order may be issued under Section 1414 of the SDWA.
        Since 1991, EPA has taken 11,056 enforcement actions nationally to
    address Lead and Copper Rule violations, more than 96 percent of which
    addressed initial tap monitoring or reporting violations. Most of those
    violations occurred early in implementation of the rule. We will
    provide followup information that gives additional details about the
    actions, however, the following table summarizes the type and number of
    violations.

    ------------------------------------------------------------------------
             Violation Addressed by Enforcement Action             Number
    ------------------------------------------------------------------------
    Monitoring and Reporting--Initial Tap Monitoring..........       11,083
    Followup or Routine Tap Sampling..........................          110
    Monitoring and Reporting--Initial, Followup or Routine                7
     Source Water Treatment...................................
    Optimal Corrosion Control Study...........................           25
    Optimal Corrosion Control Installation or Demonstration...           21
    Noncompliance with Maximum Permissible Level*.............            7
    Public Education..........................................           40
    ------------------------------------------------------------------------
    *set by the primacy agency if the system has lead in its source water
      and has to install source water treatment

        Question 13. EPA established the MCLG for lead in drinking water at
    zero. Please explain why the Agency selected zero.
        Response. In establishing MCLGs, the Agency seeks to determine the
    level at which there are no known or anticipated adverse effects on the
    health of persons and which includes an adequate margin of safety. At
    the time of the rulemaking, there was a body of scientific evidence
    that showed that the risk of adverse health effects was present at
    increasingly lower blood lead levels and there was uncertainty that any
    blood lead level is free from risk of incurring adverse effects in
    sensitive subpopulations. The EPA therefore established an MCLG of zero
    for lead in drinking water because of the difficulty of identifying a
    low lead exposure level at which there are no risks of adverse health
    effects and because Agency policy was that drinking water should have a
    minimal contribution to total lead exposure (given that a substantial
    portion of the sensitive population already had blood lead levels that
    exceeded the level of concern). Finally, lead is classified as a
    probable human carcinogen.

        Question 14. EPA's drinking water hotline answers thousands of
    questions each year. The recent revelations about lead contamination in
    the DC water system underscores the importance of accurate and
    objective drinking water information. There have been reports, however,
    that the President's funding cuts may force EPA to terminate the
    drinking water hotline. As Assistant Administrator for Water, what will
    you do to ensure that the Agency is able to provide answers to
    questions about drinking water from concerned citizens?
        Response. The Agency has no intention of terminating the Safe
    Drinking Water Hotline, which serves a critical role in EPA's outreach
    and public education efforts. In fact, questions about lead in drinking
    water are consistently among the most frequently asked of the Hotline.
    The Hotline is currently available by calling a toll-free number Monday
    through Friday from 9 a.m. to 5 p.m. and via email. During fiscal year
    2003, the Hotline received close to 25,000 calls from around the
    country, an average of 125 inquiries a day. Approximately 13 percent of
    the requests were made by email. Within the last month, EPA has
    directed additional funding to the Hotline to ensure that they can
    manage additional calls from District residents who have questions
    about lead in their drinking water. Over the past 2 years the Office of
    Water has funded the Hotline at approximately $330,000 per year and
    will likely maintain this funding level for 2004. While the cost of
    operating the Hotline is significant, EPA believes that the benefits of
    being responsive to the public and increasing consumer awareness
    justifies the costs.

        Question 15. In view of the complexity and workload associated with
    State drinking water programs (which implement all SDWA mandates in 49
    of the 50 States) and, in view of the documented resource gap in State
    program funds, as Assistant Administrator for Water, what action would
    you take to ensure that the Public Water System Supervision account is
    adequately funded and administered?
        Response. I appreciate the significant efforts that are required
    and undertaken by States to implement drinking water programs that
    ensure provision of safe drinking water to citizens and am pleased to
    report that the Bush Administration has already taken action to
    increase funding for the Public Water System Supervision grant program
    to the States. The fiscal year 04 President's Budget requested $105.1
    million for this grant program and Congress appropriated $102 million.
    This is almost a $10 million increase over the fiscal year 03 level of
    $92.5 million. The fiscal year 05 President's Budget again includes a
    request of $105.1 million for this grant program. EPA's financial
    support to the States through Public Water Supply Supervision grants is
    critical in light of the significant projected shortfalls in State
    program resources as well as the States' continuing need to train new
    staff due to high turnover rate, as cited in the Association of State
    Drinking Water Administrators' report on the State program management
    resource gap. Other EPA efforts to support State programs include
    continually providing guidance, training and technical assistance on
    the implementation of drinking water regulations; developing new,
    easily accessible tools (e.g. Web-based) to assist States and water
    systems; and promoting consumer awareness of the quality and safety of
    drinking water supplies. Together, this financial and technical support
    is a significant level of assistance to the States to carry out their
    primary enforcement authority, or primacy, set forth in the Safe
    Drinking Water Act.

        Question 16. In December 2003, the Agency announced that the
    Administration was dropping plans to rewrite Clean Water Act rules. As
    part of this announcement, the Agency stated that EPA would reconsider
    the January 2003 policy requiring Federal agencies not to protect
    particular waters without first getting permission from EPA or the
    Corps of Engineers, which leaves many waters at risk. Since then, what
    steps have been taken to reconsider and rescind this anti-clean water
    directive? As Assistant Administrator for Water, what steps will you
    take to ensure that our nation's waters are protected?
        Response. On January 15, 2003, EPA and the Corps issued joint legal
    guidance that clarified the scope of ``waters of the United States'' in
    light of the U.S. Supreme Court's decision in Solid Waste Agency of
    Northern Cook County (SWANCC) and subsequent judicial decisions. (68
    Fed. Reg. 1991, 1995 (January 15, 2003)). The legal guidance states
    that field staff may no longer assert jurisdiction over isolated,
    intrastate, non-navigable waters based solely on the presence of
    migratory birds, and that agency headquarters approval should be
    obtained prior to asserting jurisdiction over such waters based solely
    on other types of commerce links. The legal memorandum emphasizes that
    field staff should continue asserting jurisdiction over navigable
    waters, their tributary systems, and adjacent wetlands. The memorandum
    also emphasizes that jurisdictional calls must reflect existing
    regulations and relevant case law. Consistent with this legal guidance,
    field staff at both EPA and the Corps continues to vigorously implement
    and enforce programs affecting all ``waters of the United States''
    protected under the CWA after SWANCC.
        I do not believe the joint legal guidance ``leaves many waters at
    risk'' due to its requirement that field staff get formal Headquarters
    approval prior to asserting jurisdiction based solely on links to
    interstate commerce. The guidance specifically provides that such
    concurrence is applicable only to isolated waters that are both
    intrastate and non-navigable. Given the rationale and reasoning in
    SWANCC and the extensive and varied caselaw since, we believe it is
    appropriate for Headquarters to play a role before jurisdiction is
    asserted over such waters on the basis of commerce clause factors, both
    to ensure decisions reflect applicable case law and to foster national
    consistency on how such issues are approached.
        As the question notes, on December 16, 2003, EPA and the Corps of
    Engineers jointly announced that we would not issue a new rule on
    Federal regulatory jurisdiction over isolated wetlands. At the same
    time, the agencies emphasized we would continue to monitor
    implementation of section 404 and other CWA programs to ensure their
    effectiveness.
        As Assistant Administrator for Water, I will encourage EPA and the
    Corps to continue taking steps to increase consistency, transparency,
    predictability, and sound science for section 404. For example,
         The agencies are working together to ensure that
    information on jurisdictional calls is collected and shared with the
    public
         Staff from EPA and Corps Headquarters and field offices
    are planning joint visits to sites that illustrate difficult issues
    regarding the scope of waters of the US, in order to develop a common
    understanding of the issues
         EPA and the Corps are coordinating to expand and improve
    the Corps' permit-tracking data base, which will be made available to
    the public through the Corps' website, providing important access to
    agency actions
         The agencies are engaging in opportunities to explain to
    stakeholder groups the scope of CWA jurisdiction in light of SWANCC,
    including national and regional conferences and other public forums
         EPA is conducting a scientific review of information on
    ``isolated waters'' and their relationship to the chemical, physical,
    and biological integrity of ``navigable'' waters
         EPA is co-sponsoring a U.S. Army Engineer Research and
    Development Center study on Ordinary High Water Mark indicators for
    delineating arid streams in the Southwestern U.S.
         EPA, Corps, and DOJ staff continue to have biweekly
    meetings to discuss jurisdictional issues and questions that arise in
    the field
         EPA is working closely with DOJ and the Corps in
    litigation, arguing that the SWANCC decision was focused on isolated
    waters and did not change CWA protections for tributaries and adjacent
    wetlands. Since the SWANCC decision, the government has prevailed in 10
    of 11 Appellate Circuit decisions.

        Question 17. The January 15, 2003 EPA and Army Corps policy
    directive on Clean Water Act jurisdiction tells the Federal agencies
    not to protect certain wetlands, streams and ponds without first
    getting permission from EPA or Army Corps of Engineers headquarters.
    How many miles of stream or acres of wetlands have been declared no
    longer subject to Clean Water Act jurisdiction because of the January
    2003 policy? Can you give any examples of waters that have been
    declared no longer subject to Clean Water Act jurisdiction?
        Response. To date, we have received six requests for headquarters
    approval, plus an additional six that involved navigable-in-fact
    isolated waters that do not require Headquarters approval. Of those six
    being reviewed in Headquarters, we are seeking additional information
    on three, found one to be jurisdictional, expect to find another one
    jurisdictional, and one not to be jurisdictional. The one found not
    jurisdictional was an isolated, intrastate, and non-navigable wetland.
    The sole basis proposed for asserting CWA jurisdiction was the
    potential use by interstate visitors--a conclusion not supported by the
    record. It is our understanding that the request for a jurisdictional
    determination in this case was to inform development of a planning
    document and not prompted by a proposal to develop the wetland.
        With respect to other steps that EPA and the Corps are taking to
    gather data on the aquatic resource impacts of SWANCC, the Corps
    Districts are systematically collecting information on findings of no-
    jurisdiction over waters deemed isolated, intrastate, and non-
    navigable. The information will be compiled in a common format that
    includes information on wetland acreage and stream mileage impacted.
    The Corps plans to make this information publicly available via the
    Internet. EPA is working with the Corps to implement the
    recommendations in the recent GAO report, ``Waters and Wetlands: Corps
    of Engineers Needs to Evaluate Its District Office Practices in
    Determining Jurisdiction.'' These recommendations include surveying
    Corps offices to identify significant differences in jurisdictional
    practices, evaluating whether and how these differences might be
    resolved, and better documenting jurisdictional practices and making
    information publicly available.

        Question 18. Is the Army Corps conferring with EPA before declaring
    certain wetlands, streams, or ponds to be outside of the scope of the
    Clean Water Act? What is EPA doing to track the fate of the types of
    waters subject to this policy? As Assistant Administrator for Water,
    would you seek to change either the interaction with the Army Corps or
    the EPA's tracking system for waters affected by the guidance?
        Response. The Corps and EPA have undertaken a variety of actions to
    increase coordination on the section 404 program implementation and
    jurisdictional determinations. EPA and Corps headquarters coordinate on
    requests from the field, in accordance with the January 2003 guidance,
    for formal approval of jurisdictional calls involving isolated
    intrastate non-navigable waters based solely on commerce links other
    than those in the migratory bird rule. Furthermore, a number of EPA
    Regions and Corps districts currently coordinate in advance on
    jurisdictional calls that raise challenging issues. And, EPA, Corps,
    and DOJ staff continue to have biweekly meetings to discuss
    jurisdictional issues and questions that arise in the field. Corps
    practice has generally been to consider as jurisdictional without
    further analysis those waters that have been subject to other CWA
    provisions, such as 402 water permits or 311 oil spills.
        As EPA and the Corps jointly implement the scope of ``waters of the
    United States'' protected by the Clean Water Act after SWANCC, a
    variety of issues have arisen due to the differences in climate,
    geology, and geography throughout the country. The current regulations
    establish a useful framework that provides consistency for applying
    best professional judgment on a case-by-case basis. EPA is committed to
    working with the Corps to ensure that approaches and results are
    consistent for similar aquatic resources, consistent with Clean Water
    Act goals, and legally defensible. Headquarters and field office staff
    will selectively conduct joint visits to sites that may involve complex
    jurisdictional determinations regarding the scope of the waters of the
    United States, in order to work toward a common understanding of
    jurisdictional issues and potential approaches.
        The agencies have agreed to coordinate and share jurisdictional
    data. The Corps routinely collects information on jurisdictional calls
    and has agreed to collect and share information on district
    jurisdictional calls with EPA and the general public, including
    findings of no-jurisdiction. The Corps and EPA also are coordinating to
    expand and improve the utility of the Corps' OMBIL Regulatory Module
    (ORM), the permit-tracking data base currently being installed in all
    Corps districts. In addition, the Corps and EPA are working together on
    a Corps-initiated project to make Corps data available for water
    quality and watershed managers by integrating it with other information
    systems.
        As this coordination continues, I am committed to ensuring that
    enough information is available to make sound decisions regarding
    jurisdiction under the CWA, and if information is lacking, to pursue
    additional mechanisms with the Corps to rectify any shortfalls.

        Question 19. What is the status of the Agency's review of the
    stormwater Phase II regulation and its applicability to small oil and
    gas constructionsites? As Assistant Administrator, when will you have
    this review completed?
        Response. EPA has started conducting an in-depth analysis of all
    potential economic impacts relating to oil & gas industry compliance
    with the Phase II stormwater regulations. We expect preliminary
    information this summer and a completed analysis by the fall. We will
    then determine if a rulemaking is necessary and publish a FR notice
    documenting the Agency's decision prior to March 10, 2005.

        Question 20. It is imperative that our nation's water and
    wastewater infrastructure be adequately protected from potential
    terrorist attack or other event. As Assistant Administrator for Water,
    please describe how you would approach this issue, with particular
    focus on the relationship between the EPA and the Department of
    Homeland Security.
        Response. Protecting critical infrastructure is a vital and
    challenging component of EPA's mission. An integral part of our water
    security efforts must involve a close collaborative relationship with
    the Department of Homeland Security (DHS) to ensure that we leverage
    our respective resources to maximize protection of the water sector. In
    general, EPA possesses expertise in understanding the water sector and
    enjoys long established relationships with water utilities, water-
    related government entities, and associations. DHS has expertise in the
    form of intelligence analysis and general security issues that can be
    used together with EPA's proficiencies in order to deliver the most
    robust, comprehensive assistance to the water sector.
        Such a collaborative approach is in fact mandated in Homeland
    Security Presidential Directives (HSPD)-7 and 9. HSPD-7 designates EPA
    as the Sector Specific Agency responsible, with guidance from DHS, for
    improving water security. HSPD-9 directs DHS to develop a plan in
    consultation with EPA for establishing a nationwide surveillance and
    laboratory program for water. In response to these directives and to
    the threats confronting the water sector, EPA, with support whenever
    appropriate from DHS, must continue to provide an array of assistance
    to the water sector that includes training for preparedness, developing
    voluntary best security practices, enhancing contaminant information
    tools, and evaluating detection technologies. For example, in 2004 we
    will renew efforts with DHS's Office of Domestic Preparedness to
    provide emergency response training to water systems and emergency
    responders.
        In addition, EPA and DHS must continue to identify security
    concerns that present the greatest risks to the water sector. Our
    collective efforts should improve the capability of the water sector,
    and others that support or rely on the sector, to not only understand
    security threats and vulnerabilities, but also have access to the tools
    and assistance necessary to reduce security risks.

        Question 21. In your current work at the Agency, please describe
    your experiences with the water and wastewater security program and how
    you would or would not seek to modify if as Assistant Administrator for
    Water.
        Response. Promoting the security of the Nation's water
    infrastructure is one of the most significant undertakings and
    responsibilities of the Agency in a post-September 11 world. An attack,
    or even a credible threat of an attack, on water infrastructure could
    seriously jeopardize the public health and economic vitality of a
    community. A key practical objective of our security efforts must be to
    provide the tools and assistance that drinking water and wastewater
    systems need to prevent, detect, and respond effectively to such a
    threat or incident. EPA also needs to continue to provide programs that
    forge critical links between the water sector and those who support or
    could support the sector in detecting and responding to threats and
    incidents, such as local law enforcement and public health departments.
    In 2003, we established the Water Security Division within the Office
    of Water to emphasize and implement EPA's commitment to protect the
    safety and security of the Nation's drinking water supply.
        While in prior years EPA's water security work focused on
    supporting assessment of vulnerabilities and creating a baseline of
    security-related information, future efforts will involve providing the
    tools and assistance that drinking water and wastewater systems need to
    address these vulnerabilities including the identification of the most
    up-to-date security enhancements, sharing information on threats and
    contaminants, and training on emergency response.
        In my experience, we have developed a water security program at EPA
    that fulfills expectations expressed in Homeland Security Presidential
    Directive-7, which assigns to EPA a pivotal role in coordinating and
    facilitating the protection of the Nation's drinking water and
    wastewater systems. EPA has produced a broad array of tools and
    assistance that the water sector is using to assess its vulnerabilities
    and to develop emergency response plans. As a result of our efforts,
    drinking water systems collectively serving over 150 million people
    have submitted vulnerability assessments. EPA has also reached out to
    important partners beyond the sector to ensure that the sector receives
    the support necessary in the event of a threat or an attack.

        Question 22. Is training for water system contamination events
    being incorporated into water system operator and first responder
    training protocols? Please provide a complete description of what is
    being done to ensure that the initial response to contamination of a
    water system is effective. Please include a description of how your
    work is being coordinated.
        Response. One of the most effective and efficient means to enhance
    the safety of the water sector involves incorporating security
    principles into business-as-usual. For example, EPA has awarded a grant
    to the Association of Boards of Certification to develop voluntary
    State drinking water and wastewater security-related operator
    certification examination questions. These questions will be shared
    with all State operator certification programs and will be available
    for use by the end of this year.
        With respect to emergency responders, EPA, in partnership with the
    Department of Homeland Security, is in the process of developing a 30
    city training program for water operators and all sector first
    responders. The training will foster an understanding of the Federal,
    State and Local emergency response planning and coordination
    requirements. In addition to the training, table-top exercises will be
    conducted to capture real life contamination events. Also, EPA is
    collaborating with the American Water Works Association and the Centers
    for Disease Control and Prevention to provide a 2-day training seminar
    for water utilities, public health and other first responders on the
    protocol for responding to contamination events. EPA also provides
    financial assistance to the States for efforts to assist in emergency
    response and recovery preparedness. Among the emergency response and
    recovery plan implementation activities being undertaken are table-top
    workshops, exercises, drills, response protocols and other activities
    focusing on improving the readiness of individuals and groups involved
    in first response at a drinking water system.
        Aside from these activities, EPA has longstanding capabilities in
    its core programs that are directed to homeland security and emergency
    response. In the last 2 years, we have been called upon to respond to
    domestic incidents and to enhance our role in several areas. For
    example, EPA conducted sampling at over 30 facilities potentially
    contaminated during the anthrax incidents. After September 11 and the
    following anthrax responses, EPA's Administrator issued a new National
    Approach to Response to ensure that all of our resources are being
    prepared and used in a coordinated manner to address Nationally
    Significant Incidents.
        EPA's response to emergencies are implemented through our 10
    Regional offices, and are characterized by a system that includes
    Federal, State, and local cooperation. The strength of our program is
    that our On-Scene Coordinators are experienced responders who bring
    with them delegated authorities, strong relationships with State and
    local responders, backed up by a national network and both Federal
    response assets and contractor capabilities, including access to
    commercial laboratories. Our On-Scene Coordinators are accustomed to
    working in the Incident Command System now being implemented as the
    National Incident Management System. In addition, the National Oil and
    Hazardous Substances Pollution Contingency Plan (the NCP) is the
    foundation upon which the capabilities and response structure for not
    just EPA's hazardous materials responders, but also for local, State,
    and other Federal responders involved in responding to these incidents.
    All of the efforts described above address multi-media contamination
    scenarios, including water, and adopt an all-hazards approach to ensure
    that preparedness of the water and other sectors extends to cover the
    full array of threats and to invoke the entire breadth of the Nation's
    emergency response capabilities.

        Question 23. An ongoing issue for the clean water program has been
    the failure to adequately enforce the conditions of NPDES permits and
    the adequacy of existing data to determine the progress on improving
    enforcement. Can you describe what actions you will take as Assistant
    Administrator for Water to ensure that the Clean Water Act is enforced
    and that data systems supporting this function have necessary
    capabilities? What actions will you take as Assistant Administrator for
    Water to ensure that the Safe Drinking Water Act is enforced?
        Response. EPA is committed to vigorous enforcement of each of the
    environmental statutes. We recognize that a strong and balanced program
    of compliance assistance and enforcement is an essential complement to
    the work that EPA, the States and municipalities have undertaken over
    the last 3 decades to implement the Clean Water Act. The Office of
    Enforcement and Compliance Assurance (OECA) is responsible for the
    Agency's enforcement and compliance assistance programs, including
    those for the Clean Water Act. As the Assistant Administrator for the
    Office of Water (OW), I will continue to work closely with the
    Assistant Administrator for the Office of Enforcement and Compliance
    Assurance (OECA) to ensure that the Clean Water Act and the Safe
    Drinking Water Act are appropriately enforced. OW and OECA work
    together to ensure that regulations and permits are enforceable and
    achieve compliance with the statutes.
        An important element of the enforcement effort is the effective
    operation of data systems. The Office of Water and OECA have been
    collaborating on improvements to the main national data system for CWA
    compliance, the Permit Compliance System (PCS). PCS supports the
    regional and State implementation of the NPDES program.
        Some of EPA's national data systems are relatively old and need to
    be updated to meet the evolving business needs of the Agency's programs
    and the expectations of users for current technology. The current PCS
    Legacy system has little or no data for major new NPDES requirements,
    such as Concentrated Animal Feeding Operations (CAFO's), storm water,
    and Combined Sewer Overflows (CSOs). PCS is being modernized to address
    these serious data gaps, as well as provide for easy use of and access
    to the system, use of current information technology, support of the
    Agency's initiative for data integration, and to promote the exchange
    and sharing of data with our State partners.
        To address these concerns, OECA initiated the phased development of
    an innovative and integrated data system: the Integrated Compliance
    Information System (ICIS). ICIS Phase I, the core multi media Federal
    enforcement program component of the system, was implemented in June
    2002. The Permit Compliance System (PCS) Modernization, or ICIS--Phase
    II, is the modernization of the PCS system, the official EPA national
    system for management of the Clean Water Act (CWA) National Pollutant
    Discharge Elimination System (NPDES) program.
        The availability of more comprehensive data in a modernized PCS
    will enhance the Agency's ability to more effectively manage the CWA
    NPDES program. The systematic tracking of discharge monitoring data for
    existing and new NPDES program areas will provide the Agency the
    capability to determine national compliance rates and emissions for
    program areas such as CAFOs. Similarly, the capability to determine
    national compliance rates for wet weather events, which has been
    identified as a major environmental problem, will also be possible. PCS
    modernization is also the key to the Agency's ability to comply with
    the Government Performance and Results Act through the tracking of
    environmental results to show environmental improvements (e.g.,
    improved water quality), as well as a major step toward the Agency's
    efforts to provide the States with the ability to exchange
    environmental and compliance information with EPA.

        Question 24. Please provide a summary of all of the enforcement
    actions taken under all provisions of the Safe Drinking Water Act since
    1995.
        Response. EPA and States have the authority to carry out
    enforcement actions to address violations of the Safe Drinking Water
    Act and relevant regulations. All States, with the exception of
    Wyoming, have primary enforcement responsibility for national primary
    drinking water regulations. EPA has primary enforcement authority for
    those rules that have not yet been adopted in a State and for programs
    it directly implements (e.g., D.C., Wyoming, Indian Tribes). EPA can
    also take an enforcement action as needed to supplement State activity.
    Actions can be informal or formal. Generally, a State or EPA will
    initiate an informal action and then escalate to formal action if the
    system fails to respond. However, depending on the seriousness of the
    violation, a State or EPA can move directly to a formal action. Based
    on a preliminary analysis of the numbers, EPA and States have issued
    more than 693,000 informal actions and 177,000 formal actions between
    1995 and 2003. The table below summarizes the actions:

    ----------------------------------------------------------------------------------------------------------------
                            Type of Action                                    EPA                     States
    ----------------------------------------------------------------------------------------------------------------
    Informal Actions..............................................       3,904  (64 percent     689,593  (41 percent
                                                                    notice of violation, 19  notice of violation, 43
                                                                             percent public           percent public
                                                                              notification)            notification)
    Formal Actions................................................                   11,458                  165,753
    Formal Notices of Violation...................................                    7,059                  154,216
    Final Administrative Orders without Penalty...................                    4,227                    6,811
    Administrative Orders with a Penalty..........................                      145                    4,176
    EPA civil referrals to the Department of Justice (EPA) or                            27                      550
     Attorney General (State).....................................
    ----------------------------------------------------------------------------------------------------------------

        Question 25. What is the status of the TMDL rule and when does he
    expect the Agency to put the new proposal on the table?
        Response. A staff draft of the Watershed Rule was sent to the
    Office of Management and Budget (OMB) for informal review in January
    2003. At this time there has been no decision whether to go forward
    with a formal submission to OMB.
        States and EPA continue to implement the existing regulations. EPA
    and the States have made considerable progress in establishing TMDLs.
    As reported in the Agency's Annual Report for fiscal year 03 more than
    9,000 TMDLs have been established since 1999. These, added to the TMDLs
    established in prior years, brings the total to more than 10,000 TMDLs.
    In addition EPA, with the States' help, continues to meet deadlines
    established in court orders covering 22 States.
        In addition, EPA has been working with the States to make the TMDL
    program more effective and to facilitate incorporation of TMDLs into
    watershed planning processes:
        EPA has issued guidance to improve the assessment and impaired
    water listing process and increase the scientific rigor of water
    quality standards attainment determinations. The guidance:

              Combines two separate statutory requirements to provide an
            integrated and comprehensive picture of the status of a State's
            water quality the integrated report.
              Asks the States to develop and make public their water
            quality assessment methodologies.
              Clarifies that waters do not have to be listed as needing a
            TMDL where other programs designed to achieve water quality
            standards are in place and being implemented.

        Finally, EPA has issued guidance for use of CWA section 319 funding
    to ensure that funds are used to develop and implement watershed plans
    that incorporate completed TMDLs.

        Question 26. The administration has proposed 20 million in
    additional funding for water quality monitoring. How can he assure that
    the funds go toward actual, on the ground, improvements to water
    monitoring programs in the States.
        Response. These funds will help with what the States have
    identified as a $100-150 million annual shortfall in funds States need
    to collect and analyze data essential for documenting the condition of
    waters, making day-to-day decisions about the best way to protect water
    quality, and evaluating progress and effectiveness of programs. These
    funds will also provide essential monitoring data to support local and
    regional watershed protection efforts.
        To improve water quality monitoring, EPA is focusing on four major
    areas: strengthening State programs; using the most cost-effective
    combination of tools to gather data on water quality; expanding the use
    and accessibility of data; and using partnerships to maximize use of
    monitoring resources.
        The administration has proposed that $17 million of the requested
    funds be used for State grants under section 106 of the Clean Water
    Act. The remaining $3 million would be used by EPA to support water
    quality monitoring activities, particularly to enhance data management
    systems to ensure easier access to and use of monitoring data. These
    funds constitute an incremental step in reducing the $100-150 million
    annual shortfall identified by States.
        States are now developing comprehensive State monitoring
    strategies, as recommended by EPA in its March 2003 guidance,
    ``Elements of a State Monitoring and Assessment Program.'' These funds
    will help States implement their monitoring strategies and provide
    improved data and information for State water quality standards, NPDES
    permits and nonpoint source pollution controls, completion of State
    Integrated Reports (Clean Water Act sections 305(b) and 303(d)), and
    establishment of Total Maximum Daily Loads to achieve water quality
    standards. EPA is now working with States to determine how best to
    ensure that these funds are used to enhance existing State monitoring
    efforts. Our intention is to track progress through implementation of
    the State monitoring strategies and State workplans under the section
    106 grants.

        Question 27. EPA is working with a number of national and
    international groups to promote the institutionalization of the annual
    World Water Monitoring Day. As the Assistant Administrator, what do you
    see as EPA's continuing contribution to this effort to engage the
    worldwide public in this citizen education and involvement event?
        Response. EPA will continue to promote and support World Water
    Monitoring Day by hosting and participating in events that educate the
    public about the importance of water monitoring and what citizens can
    do to protect water quality. EPA cosponsored National Water Monitoring
    Day in 2002, in which more than 75,000 Americans participated. In 2003,
    EPA worked with American's Clean Water Foundation, the International
    Water Association, and other Federal partners, State and interstate
    agencies, watershed organizations and individuals throughout the world
    to promote personal stewardship and individual responsibility for the
    integrity of our world water. The goal was to involve people throughout
    the world in this annual event.
        Our headquarters and regional offices will continue to develop and
    share educational materials and expertise with interested organizations
    here in the United States and around the globe in celebration of World
    Water Monitoring Day.

        Question 28. In a hearing before the House Water Resources and the
    Environment Subcommittee on March 30, 2004, you responded to questions
    regarding activities that drain wetlands and other waters by stating
    that as long as material used to excavate ditches in waters of the
    United States was trucked offsite, no Clean Water Act Section 404
    permit was required.
        This statement is inconsistent with the law. In January 2001 EPA
    and the Army Corps modified the Clean Water Act regulatory definition
    of ``Discharge of Dredged Material.'' That rule includes a statement
    that, ``The Corps and EPA regard the use of mechanized earth-moving
    equipment to conduct land clearing, ditching, channelization, in-stream
    mining or other earthmoving activity in waters of the United States as
    resulting in a discharge of dredged material unless project-specific
    evidence shows that the activity results in only incidental fallback.''
    (40 CFR Chapter I.Sec. 232.2 (2)(i)). Can you explain how your
    interpretation of the dredged material rule and your understanding of
    how the EPA and Corps are implementing it with regard to ditching
    activities fits with the rule that is currently in force? Is the EPA
    enforcing the regulation against those who conduct drainage,
    excavation, or mining activities in waters of the U.S. without a
    permit? Please explain what types of activities you consider exempt
    under the current rules?
        Response. I believe the House hearing questions regarding discharge
    of dredged material were answered by Mr. John Paul Woodley, Assistant
    Secretary of the Army for Civil Works. However, I am pleased to provide
    some background on the January 2001 rule and my perspective on when a
    section 404 or other CWA permit is required for ditching and dredging
    activities.
        In 1993, EPA and the Corps promulgated the original rule (commonly
    known as the ``Tulloch Rule,'' after the name of associated
    litigation). That rule defined ``discharge of dredged material'' to
    include ``any redeposit'' of dredged material associated with
    landclearing and excavation activities, including small volume
    redeposits that incidentally occur during such activities. In 1998, the
    D.C. Circuit Court of Appeals upheld a lower court's invalidation of
    the Tulloch Rule in National Mining Association v. Corps of Engineers
    (NMA). In NMA, the Tulloch rule was held to exceed statutory authority
    because some redeposits, specifically ``incidental fallback'' (material
    that basically falls back during excavation) is not an ``addition.''
    Agencies were enjoined from applying or enforcing the rule. EPA and the
    Corps promulgated a conforming regulation excluding ``incidental
    fallback'' and the word ``any'' from the definition of ``discharge of
    dredged material.'' 64 Fed. Reg. 25120 (May 10, 1999).
        As noted in the question, in January 2001 EPA and the Corps
    modified the regulatory definition of ``discharge of dredged material''
    to indicate that the agencies regard the use of mechanized earth-moving
    equipment as resulting in a discharge of dredged material unless
    project-specific evidence indicates that only incidental fallback will
    result. ``Incidental fallback'' was defined, consistent with the NMA
    decision, as ``the redeposit of small volumes of dredged material that
    is incidental to excavation activity in waters of the United States
    when such material falls back to substantially the same place as the
    initial removal.'' Examples of incidental fallback include soil that is
    disturbed when dirt is shoveled and back-spill that comes off a bucket
    when such small volume of soil or dirt falls into substantially the
    same place from which it was initially removed. The 2001 definitional
    changes created no presumption, however, and instead reflected the view
    that mechanized earth-moving equipment typically results in a regulable
    discharge, while leaving the door open to the facts of a particular
    case showing otherwise.
        As a result, a section 404 permit is required for mechanized land
    clearing, ditching, or other activities in wetlands that result in more
    than ``incidental fallback.'' If a project proponent can complete
    activities in wetlands without discharging more than incidental
    fallback, however, consistent with the NMA decision and subsequent
    rules, a section 404 permit would not be required.
        OW works closely with the Office of Enforcement and Compliance
    Assurance (OECA) to ensure the enforcement of all CWA programs,
    including section 404. EPA is actively enforcing regulations, requiring
    a section 404 permit for discharges of dredged material in wetlands in
    amounts greater than incidental fallback. It is important to note that,
    even where an activity in wetlands might not result in a regulable
    discharge of dredged material, it may be subject to other CWA
    provisions such as the section 402(p) stormwater program where wet
    weather flows are increased due to a project. Attached is an OECA
    publication, ``EPA Takes Enforcement Actions Against Violators Who
    Ditch Wetlands and Channelize Streams,'' explaining the link between
    ditching activities in wetlands and stormwater requirements.

          Response by Benjamin H. Grumbles to Additional Question from
                                 Senator Cornyn

        Question. I have been contacted by the Texas Commission on
    Environmental Quality (TCEQ) and the Texas Rural Water Association
    regarding the use of the Drinking Water State Revolving Fund's 10
    percent State set aside for chemical sampling collection for public
    water systems. It is my understanding that you have been part of the
    negotiations on determining whether these funds can be used for this
    purpose. Can you give me an update on these discussions from your
    perspective?
        Response. I have recently participated in very productive
    discussions with the Texas Commission on Environmental Quality (TCEQ)
    and the Texas Rural Water Association and am pleased to report that I
    believe we are reaching agreement with the parties regarding how to
    address this issue. Although the Safe Drinking Water Act prohibits use
    of the 10 percent State program management set-aside for routine
    operations and maintenance expenses, such as routine sampling costs,
    there is another set-aside category to which this statutory prohibition
    does not apply. I believe that all parties understand that the 15
    percent set-aside for local assistance, which includes capacity
    development assistance for public water systems, is a more appropriate
    source of funding for the monitoring in question at this time.
        However, because we believe that the use of set-aside funds for
    routine monitoring is inconsistent with the overall statutory focus on
    water system capacity development, we issued a policy indicating that
    use of the funds for that purpose should stop by January 1, 2005. To be
    responsive to Texas and other States with biennial legislatures, I am
    extending the time period for States to transition from use of this
    set-aside to January 1, 2006 (with provisions for individual States
    facing exceptional circumstances to negotiate additional time with
    their EPA Regional Office). In the specific case of Texas, this
    provides the TCEQ additional time to work with the State Legislature to
    determine how best to fund chemical sample collection costs in the
    long-term. We will continue to work closely with the National and Texas
    Rural Water Associations and TCEQ on ways to address the unique
    monitoring issues in Texas and am confident we can reach agreement on a
    long-term approach for public water system chemical sampling in Texas.

        Responses by Benjamin H. Grumbles to Additional Questions from
                               Senator Lieberman

        Question 1. On June 6, 2002, you testified before the Subcommittee
    on Clean Air, Wetlands, and Climate Change on behalf of the
    administration about the impacts of the EPA's and Army Corps of
    Engineers' revisions to the Clean Water Act regulatory definition of
    ``fill material'' with respect to mountaintop removal coal mining.
        In your testimony before the subcommittee, which I chaired at the
    time, you assured me and other Senators on the subcommittee that the
    EPA and Corps' rule change would ``result in more effective regulation
    of activities under the [Clean Water Act], leading to a reduction in
    environmental impacts'' from mountaintop removal coal mining. You
    answered our concerns that changing the Corps' definition of ``fill
    material'' especially as it applied to mountaintop removal coal mining
    and associated filling of valley streams would not be significant
    because the Clean Water Act 404 permitting process:
        `` . . . carefully screens proposed discharges and applies the
    404(b)(1) Guidelines, which provide a comprehensive means of evaluating
    whether any discharge of fill, regardless of its purpose, is
    environmentally acceptable. First, a discharge is categorically
    prohibited if it would significantly degrade a water of the United
    States. In addition, no discharge may be allowed if there is a less
    environmentally damaging practicable alternative to placing the
    material in waters of the United States. Finally, where there is no
    other alternative, the discharge may be allowed if the permit applicant
    has taken all practicable steps to minimize the amount of material
    discharged, and compensate for the remaining, unavoidable impacts
    through mitigation.''
        Additionally, you assured the subcommittee that Clean Water Act
    permit authorizations:
        `` . . . would have to be conveyed either through compliance with a
    Corps nationwide Permit or Regional General Permit, the terms and
    conditions of which are designed to ensure that impacts are no more
    than minimal, or through an individual permit process in which the
    effects are individually assessed.''
        In evaluating your nomination to be the head of EPA's Office of
    Water, I would appreciate your answers to some questions about how your
    commitments to me and the subcommittee have been fulfilled by EPA in
    exercising its oversight role for ensuring the implementation of the
    Clean Water Act's requirements since the rule change was adopted. I
    understand that section 404 permits are issued by the Corps of
    Engineers, not EPA. Nonetheless, EPA has significant responsibilities
    under the law for ensuring that section 404 permits are properly
    granted and has the ability under the statute to veto permits that do
    not comply with the statute of EPA's section 404(b)(1) guidelines.
        Since the change in the definition of ``fill material'' took
    effect, how many Clean Water Act authorizations for valley fills for
    surface coal mining have been approved? How many miles of streams and
    of wetlands and other waters have been permitted under the Clean Water
    Act to be filled by coal mining overburden waste material from surface
    coal mining, including mountaintop removal mining?
        Response. This question and related questions that follow regarding
    the agencies' implementation of the May 2002 ``Fill Rule,'' appear to
    be based on the premise that this rulemaking changes the fundamental
    manner in which certain coal mining activities (i.e., discharges of
    coal overburden/excess spoil in valley fills) are regulated under the
    Clean Water Act (CWA). It is important to emphasize that, as the
    agencies State in their Preamble to the final rule, we do not believe
    that the revised regulation alters, as a general matter, the manner in
    which discharges to waters of the US, have historically been regulated,
    a conclusion that is applicable to the regulation of valley fills. We
    also recognized that the May 2002 rule adopted EPA's longstanding
    effects based standard for defining fill material contained in EPA's
    regulations since 1978. It is our view that the single definition
    ensures proper, consistent, and more effective regulation under the
    CWA. In addition, since 1998, Department of Justice briefs filed in
    response to challenges of the Corps' authority to regulate valley
    fills, clearly recognize that coal overburden/excess spoil is properly
    subject to regulation as fill material under CWA Section 404, a
    position upheld by the United States Court of Appeals for the Fourth
    Circuit. The Fourth Circuit specifically concluded that valley fills
    constructed in waters of the U.S. were properly regulated under the
    agencies' previous CWA Section 404 regulations, i.e., under regulations
    that existed prior to the 2002 rulemaking.
        In providing the permitting data being requested, it is the
    agencies' view that the Section 404 program's regulation of coal mining
    activities, including valley fills, was not generally affected by the
    2002 fill rule. As a result, we do not believe that these data would
    reflect significant changes caused by that rulemaking. In response to
    your request for information on Clean Water Act authorizations for
    valley fills and associated environmental impacts, EPA has requested
    the Corps to provide this information and we will provide this data to
    you as soon as we receive it. The Corps has indicated, however, that as
    a general matter, the extent of stream impacts associated with surface
    coal mining activities has trended downward in recent years.

        Question 2. How has EPA ensured the implementation and enforcement
    of the Clean Water Act's protections for waters since the change in the
    definition of ``fill material'' took effect? Specifically, you stated
    to the subcommittee that the discharge of waste material that buries
    streams or other waters ``would not be authorized without a thorough
    review of their potential impacts on the environment, as well as other
    aspects of the public interest.'' Please describe in detail how you
    have implemented this ``thorough review'' of the impacts of mountaintop
    removal valley fills on the environment and the public interest for
    each of the valley fills approved under the revised Clean Water Act
    rules since June 2002.
        Response. It is the agencies' view that neither Clean Water Act
    permitting nor enforcement of surface coal mining activities in waters
    of the U.S. was generally affected by the EPA/Corps May 2002 fill rule.
    EPA Regional program offices are involved in the review of Pre-
    Construction Notifications for General Permits and Public Notices for
    individual permit applications issued by the Corps of Engineers under
    the CWA Section 404 permit program. EPA review of applications for
    authorization of coal mining activities in waters of the U.S. focuses
    on ensuring that potential adverse environmental impacts are avoided
    and minimized to the maximum practicable extent and that remaining
    impacts are effectively mitigated. We are compiling EPA comments on all
    individual permit applications filed since June 2002 and will forward
    those to you as soon as they are collected. Specific enforcement
    information is provided in response to the enforcement question below.

        Question 3. Of the applications for mountaintop removal valley fill
    authorizations applied for since the new definition of ``fill
    material'' took effect, how many miles of streams and acres of wetlands
    and other waters have the coal mining companies sought to fill with
    mining waste?
        Response. It is the agencies view that Clean Water Act permitting
    of surface coal mining activities in waters of the U.S. was not
    generally affected by the EPA/Corps 2002 fill rule. We have requested
    data from the Corps to respond to your questions about the number of
    CWA authorizations applied for since May 2002 for discharges of mining
    waste (i.e., coal slurry) and associated stream impacts, and we will
    provide this data as soon as we receive it. The Corps has indicated,
    however, that the extent of stream impacts associated with coal mining
    activities in waters of the U.S. has trended downward in recent years.

        Question 3a. Of the valley fill applications made since June 2002,
    what is the total of miles of streams fills and acres of wetland fills
    applications that were denied because the discharge ``is categorically
    prohibited'' because ``it would significantly degrade a water of the
    United States?'' Similarly, what is the total of miles of streams fills
    and acres of wetland fills protected because authorizations were denied
    on the basis that there was ``a less environmentally damaging
    practicable alternative to placing the material in waters of the United
    States?''
        Response. EPA has requested that the Corps provide the permitting
    data you requested regarding the number of permits for surface coal
    mining activities denied based on a finding that the discharge would
    significantly degrade a water of the U.S. or on the basis that a less
    damaging practicable alternative was available. We will provide this
    data as soon as we receive it. The Corps has initially indicated that
    the rate of permit denial associated with proposed surface coal mining
    activities is likely to be similar to the National average rate of
    permit denial for all activities under CWA Section 404. The Corps
    National denial rate for all CWA section 404 permits is approximately 1
    percent.

        Question 3b. What is the total of miles of streams fills and acres
    of wetland fills protected (i.e. not filled) when authorizations were
    approved where the permit applicant took ``all practicable steps to
    minimize the amount of material discharged, and compensate for the
    remaining, unavoidable impacts through mitigation.''
        Response. The Corps has indicated to EPA that avoidance and
    minimization data have generally not been tracked historically in the
    CWA 404 permit program. The Corps is working more recently to collect
    this data for all authorizations as part of implementing their updated
    permit-tracking data base. The Corps has stated, however, that the
    extent of stream impacts associated with authorized surface coal mining
    discharges in waters of the U.S. has generally decreased in recent
    years. With respect to compensatory mitigation, the Corps has taken
    steps to improve compensatory mitigation provisions associated with
    authorizations for surface coal mining activities. For example, the
    latest National reauthorization of nationwide Permit 21 now includes a
    requirement for mitigation for the first time. Applicants for
    authorization under this nationwide permit must include a mitigation
    plan to ensure all practicable steps have been taken to offset
    permitted impacts to waters of the U.S. The Corps is also putting in
    place a ``stream protocol'' in each State in Appalachia to ensure
    applicants are collecting stream-specific environmental data so that
    environmental impacts can be more effectively assessed and those
    impacts can be better mitigated.

        Question 3c. If you are unable to provide stream mile and wetland
    acres figures for the impacts on waters where fills were prohibited,
    avoided, minimized or mitigated, then please provide all information
    addressing these concerns that you do have, including all information
    about particular mining operations authorized since June 2002 that
    demonstrate how the revised definition of ``fill material'' has been
    implemented since it took effect, providing specific examples. If you
    cannot provide summarized information, then please provide all permit
    applications applied for and subsequent authorizations applied for and
    received for mountaintop removal operations since June 2002.
        Response. It is the agencies view that Clean Water Act permitting
    of surface coal mining activities in waters of the U.S. was not
    generally affected by the EPA/Corps 2002 fill rule. Preliminary
    information from the Corps indicates, however, that impacts to waters
    of the US associated with surface coal mining activities since the May
    2002 rule is trending downward. We have requested specific data from
    the Corps in response to your question and we will provide it to you as
    soon as we receive it.

        Question 4. Of the fills that have been permitted in waters of the
    U.S. since the ``fill'' rule change took effect, how many have been
    authorized under nationwide Permits and how many have been authorized
    under individual permits?
        Response. As a general matter, more individual permit applications
    for surface coal mining activities have been submitted in recent years
    than ever before. The Corps has indicated, however, that the majority
    of coal mining related discharges in wasters of the U.S. continue to be
    authorized under the nationwide permit program. We have requested
    permitting statistics from the Corps in response to your question and
    will provide those data as soon as we receive it.

        Question 5. In response to questions from the subcommittee, your
    written response stated that, in response to concerns raised, that:
        ``[T]his Administration is working to improve regulation of valley
    fills. For example, the settlement agreement for the court case Bragg
    v. Robertson generally limited the use of NWP 21 in West Virginia by
    setting an impact threshold of 250 acres (valley fills extending to
    that point where the stream drained more than 250 acres generally
    require an individual permit). Under this Administration, the five
    Corps districts listed above will be placing three special conditions
    on NWP 21 which: (1) set the aforementioned 250 acre threshold for all
    valley fills not just those in West Virginia (until additional
    information is obtained via the Corps Stream Assessment Protocols), (2)
    evaluate cumulative impacts to aquatic resources as part of the
    application process and (3) require appropriate mitigation, over and
    above any that may be required under SMCRA or other State authorities,
    for all permanent fills.
        While these conditions do not suffice to replace the stream
    protections provided by the 1977 rule repealed by this administration
    in May 2002 that forbade the permitting of waste materials to fill
    waters of the U.S., nonetheless I would like to know how this
    ``improved regulation of valley fills'' we were told about have been
    implemented since June 2002.
        Please identify which of the Corps' five districts referenced in
    your response have adopted the conditions identified in your response
    to the Subcommittee specifically, please list which of these five
    districts has adopted the ``impact threshold of 250 acres'' limiting
    the use of nationwide general permits for valley fills greater than 250
    acres. Also, please describe and provide documentation showing how all
    of these districts are evaluating cumulative impacts and are requiring
    mitigation for destroyed streams.
        Response. We have requested that the Corps provide EPA with the
    specific information that responds to this question. We will provide
    this information to the Committee as soon as we receive it.

        Question 6. Another of the concerns I expressed at the time of the
    Subcommittee's hearing on the Clean Water Act rule change is that no
    Environmental Impact Statement on the change on the definition of
    ``fill material'' had been conducted. In partial answer to this
    concern, in your joint EPA/Corps response to written questions, you
    responded that:
        ``[D]eterminations related to the need for an EIS should be
    conducted at the point where the new definition of the term 'fill
    material' is actually applied in a permit situation, when actual
    environmental effects are reasonably predictable.''
        Since June 2002, how many EIS's have been conducted ``at the point
    where the new definition of the term 'fill material' had been applied
    in a permit situation?'' Please list all of the circumstances in which
    it has been determined that an EIS is required before an authorization
    for a valley fill applied for by a mining operation has been approved.
        Response. An Environmental Assessment under the National
    Environmental Policy Act is prepared by the Corps as part of the record
    for every individual permit evaluation associated with proposed surface
    coal mining activities in waters of the U.S. In addition to the
    programmatic Environmental Impact Statement evaluating the regulation
    of surface coal mining activities in waters of the U.S. currently under
    development, EPA is aware of one other EIS being prepared. The Corps is
    currently writing a draft Environmental Impact Statement on the Spruce
    Fork Mine Project proposed by Arch Coal in West Virginia.

        Question 7. Since the Subcommittee's 2002 hearing, the
    administration's programmatic draft Environmental Impact Statement
    (DEIS) was released for public comment. The DEIS consists of 5000 pages
    of scientific, technical and economic studies on the environmental
    consequences of mountaintop removal coal mining. These studies confirm
    in detail--and quite unequivocally--that the environmental effects of
    decapitating mountains and burying streams are detrimental and largely
    irreversible. Among the study's findings are that over 1200 miles of
    streams have already been polluted or destroyed by mountaintop removal
    valley fills. Perhaps most startling are the results of the cumulative
    impact study, which found that without additional environmental
    restrictions, another 1000 miles of streams will be buried over the
    next decade.
        Under the Clean Water Act, nationwide general permits can only be
    granted for activities that have no more than a minimal environmental
    effect on waters and related natural resources, either individually or
    cumulatively.
        In light of the data compiled in preparing this DEIS, what is your
    view of whether this level of stream destruction is ``minimal' for
    individual mines or for mountaintop removal mines approved collectively
    under nationwide permits?
        Do you consider this level of stream destruction identified in the
    DEIS to be ``minimal''? Have your views on this subject changed from
    the time you testified before the Committee on this subject in June
    2002 in light on the information released as part of the DEIS?
        Response. EPA and the other cooperating agencies undertook
    preparation of the programmatic EIS to develop better scientific and
    technical information on which to base improvements to the
    environmental review of proposed surface coal mining activities under
    the Clean Water Act, Surface Mining Control and Reclamation Act, and
    Endangered Species Act. While we have not completed our review of the
    83,000 public comments received on the DEIS, the information collected
    is already being put to use in evaluating proposed permits.
        With regard to your questions about impacts being authorized under
    nationwide Permit 21, that issue is specifically being raised in the
    context of ongoing litigation in Federal District Court. Because this
    matter is currently the subject of ongoing litigation, it would not be
    appropriate to respond at this time.

        Question 8. Last year, EPA and other Federal regulators found, in a
    preliminary review, that hundreds of coal mining operators were burying
    streams without any Clean Water Act permit at all. In response, EPA
    proposed to create and implement a ``Mountaintop Mining Self-reporting
    Program.'' After this coal industry ``self-audit'' program was
    announced and reported in the press, it seemingly was dropped.
        What is the status of this Self-reporting'' plan? Is it EPA's
    responsibility to enforce the Clean Water Act when a company discharges
    pollutants without a permit? If so, what specifically do you plan to do
    about these violations, and when?
        Regardless of whether ``Mountaintop Mining Self-reporting Program''
    has been adopted, please provide the list of coal mining operations EPA
    and other agencies identified as filling waters without permits. If any
    of these coal companies been fined or have had any enforcement actions
    initiated by EPA of the Department of Justice since these Clean Water
    Act violations that were identified last year, please provide this
    information either by identifying the mines or, if you refuse to
    provide this specific information, provide it in summary form.
        How many of these violators have been fined by EPA or the Corps? Is
    the Department of Justice pursuing civil or criminal actions against
    any of these mines?
        Response. In early 2003, the Army Corps of Engineers informed EPA
    that it was becoming increasingly aware of circumstances in Kentucky,
    West Virginia, and Ohio involving coal mining operations that may be
    discharging dredged or fill material in waters of the United States
    without current CWA authorization or a permit application to the Corps
    of Engineers. The Agencies worked on several fronts to address this
    information to attempt to ensure compliance with the requirements of
    CWA Section 404. The Corps worked to clarify the need for coal
    operators to apply for reauthorization under the recently issued
    nationwide permit 21 for their ongoing mining related discharges
    previously approved under permits that expired in February 2003. The
    Corps' compliance assistance efforts included mailing information
    letters to mining companies that encouraged them to contact EPA or the
    Corps for information and advice, as well as conducting a number of
    Corps-sponsored workshops for the coal mining industry to assist
    operators in ensuring that their activities fully comply with the
    requirements of CWA 404. The Corps has reassessed its original
    estimates of unauthorized mining activities and believes there are far
    fewer than originally thought.
        Based on a number of factors, including the Corps' reassessment and
    recent litigation, EPA determined that it is best not to proceed with
    the proposed self-reporting program for mountaintop mining at this
    time. Mining companies are encouraged to self report CWA violations and
    discussions involving settlement would take voluntary reporting into
    consideration.
        The respective enforcement roles of EPA and the Corps are outlined
    in a 1986 Memorandum of Understanding between the two agencies.
    Normally, if an unpermitted discharge warrants an enforcement action,
    EPA will issue an administrative order or file a complaint. If a
    discharge in violation of an issued permit warrants an enforcement
    action, the Corps will issue an administrative order or file a
    complaint.
        EPA has been conducting an enforcement review of the mountaintop
    mining area and is working to define the nature, scope and location of
    CWA violations. We will take timely and appropriate enforcement actions
    as violations are identified.
        EPA's Region 4 (Atlanta) office has initiated administrative
    enforcement actions for CWA violations against three coal mine
    operators working in Kentucky. These cases were referred to EPA by the
    Corps' Louisville District. Because these cases involve ongoing EPA
    investigations, Region 4 may not disclose any additional information.
    EPA cannot provide information on other matters currently under
    investigation. No enforcement cases have yet been concluded and there
    have been no monetary penalties assessed. As yet, no cases have been
    referred to the Department of Justice.

        Question 9. On January 7, 2004, the Bush Administration proposed to
    repeal a Reagan-era rule known as the ``buffer zone rule'' that
    prohibits coal-mining activities from disturbing areas within 100 feet
    of streams. This is a regulation adopted under the coal strip mining
    law, the 1977 Surface Mining Control and Reclamation Act (SMCRA).
        What is your opinion of whether the January 7, 2004 proposed
    changes to the Stream Buffer Zone rule comply with the Clean Water Act?
        Do you believe that EPA is obliged to comment on the effect of this
    rule change on water quality? Is the Office of Surface Mining required
    by statute to consult with EPA on rule changes that could effect water
    quality? Has the EPA Office of Water submitted comments on this
    proposed ``Buffer Zone'' rule change? If so, please provide those
    comments to the Committee.
        If the EPA has not yet commented on this proposed rule change the
    comment period expires next week on April 7 can you describe what steps
    you are taking to review the environmental effects of this proposed
    rule change? Does the Office of Water plan to formally comment on this
    rule change? Will you provide EPA's comments on this proposed rule
    change to this committee?
        Response. The Office of Surface Mining (OSM) is currently seeking
    public comment on their proposed revisions to the Buffer Zone Rule. EPA
    staff are reviewing the proposed rule and preparing written comments,
    which we expect to provide to OSM. EPA has also met with OSM staff
    during the comment period to obtain additional clarification about
    provisions in the proposed rule. Office of Water staff are also
    coordinating internally with staff from other Headquarters' offices as
    well as EPA Regional offices in the preparation of Agency comments. We
    would be pleased to provide a copy of any comments to the Committee as
    they are submitted to OSM.

                                   __________
      Statement of Gary L. Visscher, Nominated to be a Member of the U.S.
                 Chemical Safety and Hazard Investigation Board

        Mr. Chairman and Members of the Committee: I am grateful for and
    honored by the President's nomination to serve as a member of the
    Chemical Safety and Hazard Investigation Board, and I appreciate this
    opportunity to appear before your Committee today.
        If confirmed by the Senate, I look forward to serving on the
    Chemical Safety Board and believe I can help the Board play an
    effective role in the continued improvement of chemical safety in this
    country. I believe in the Chemical Safety Board's mission, which is to
    prevent chemical accidents and save lives through the thorough
    investigation of chemical accidents, research into hazards that are
    related to releases or potential releases, and recommendations and
    interactions with government agencies, industry and labor, and others
    to prevent future industrial chemical accidents from occurring.
        Since 2001 I have served as Deputy Assistant Secretary for the
    Occupational Safety and Health Administration (OSHA) at the U.S.
    Department of Labor. As Deputy at OSHA, I have been involved in the
    full range of occupational safety and health issues that have come
    before the agency, including issues involving chemical processing and
    chemical plant safety. I also directly oversee the agency's offices
    responsible for standards and guidance documents; compliance
    assistance, training and cooperative programs; and technical support
    and analysis. Included in the products and programs from these offices
    during my tenure as Deputy Assistant Secretary have been a several
    dealing with chemical safety, including most recently an initiative to
    improve compliance with OSHA's Hazard Communication Standard on which
    the Assistant Secretary for OSHA, John Henshaw, testified before the
    Committee on Health, Education, Labor and Pensions last week.
        Prior to my current position I served as Vice President for
    Employee Relations at the American Iron and Steel Institute. A large
    part of my responsibility at the Institute was working with the member
    steel companies on safety and health issues in the steel industry.
        From 1999 through 2000, I served as one of three Commissioners on
    the Occupational Safety and Health Review Commission. The Review
    Commission is an independent agency which adjudicates contested OSHA
    citations and penalties.
        Prior to my confirmation by the Senate in May, 1999 to be a
    Commissioner on the Occupational Safety and Health Review Commission, I
    worked for 14 + years in congressional staff positions, first as
    Legislative Director to former U.S. Representative Paul B. Henry (R-
    Michigan) and subsequently on the staff of the House Committee on
    Education and the Workforce.
        As happens to many of us who work in congressional staff positions,
    my long term interest and involvement in workplace safety and health
    was to some extent a result of the involvement and expertise of the
    Member of Congress on whose staff I began working. Congressman Henry
    served as the Ranking Member of the House Subcommittee with
    jurisdiction of workplace safety and health issues for several years,
    from 1987 to the year he died, in 1993. Through helping to prepare him
    and the other Subcommittee Members for hearings and reviewing the
    issues that came before the Subcommittee, I gained a level of expertise
    in many of the technical as well as the legal and policy questions and
    issues in the safety and health area.
        In fact, one of the very first oversight issues I worked on after
    joining the Committee staff in 1989 was the explosion and fire and
    subsequent investigation of the Phillips 66 Company's Houston Chemical
    Complex facility in Texas in which 23 people died, and which was one of
    the incidents that helped trigger support for the creation of the
    Chemical Safety Board in the Clean Air Act Amendments.
        But having initially become involved with these issues by way of my
    congressional staff duties, I also have found working in occupational
    safety and health to be challenging as well as rewarding. Certainly, as
    Assistant Secretary Henshaw often reminds us and the staff at OSHA,
    ``there can be no work more rewarding and no job more fulfilling than
    helping to protect the lives and well-being of the working men and
    women who keep our Nation strong.'' If confirmed by the Senate, I look
    forward to serving on the Chemical Safety Board in order to continue to
    contribute to the effort of making workplaces and communities safer.
        A major role and function of the Chemical Safety Board is the
    investigation of chemical releases and incidents in order to identify
    what happened, and, as much as possible, why it happened, and to
    recommend steps that might prevent such accidents from happening again.
    To carry out these functions, one must be not only well-versed in the
    technical and legal aspects of chemical safety, but also be fair and
    objective. Each of the jobs and positions I have held in the safety and
    health area has involved oversight and review of workplace accidents
    and investigations and responsibility for understanding, evaluating,
    and analyzing the technical, the legal, and the human issues involved.
    I believe I have a reputation for being thorough as well as fair
    minded, and if I am confirmed by the Senate, I will certainly carry
    those values with me in carrying out my responsibilities as a member of
    Chemical Safety Board.
        Mr. Chairman, I appreciate this opportunity to testify before you
    and your consideration of my nomination. I would be happy to answer any
    questions you may have.

    [GRAPHIC] [TIFF OMITTED] T4600.049

    [GRAPHIC] [TIFF OMITTED] T4600.050

    [GRAPHIC] [TIFF OMITTED] T4600.051

    [GRAPHIC] [TIFF OMITTED] T4600.052

    [GRAPHIC] [TIFF OMITTED] T4600.053

    [GRAPHIC] [TIFF OMITTED] T4600.054

    [GRAPHIC] [TIFF OMITTED] T4600.055

    [GRAPHIC] [TIFF OMITTED] T4600.056

    [GRAPHIC] [TIFF OMITTED] T4600.057

    [GRAPHIC] [TIFF OMITTED] T4600.058

    [GRAPHIC] [TIFF OMITTED] T4600.059