[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

                               __________


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               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.

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      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.

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 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.

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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.

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     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.

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