    [Senate Hearing 109-725]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 109-725

     NOMINATIONS OF MARCUS PEACOCK, SUSAN P. BODINE, AND GRANTA Y. YAKAYAMA

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

                                    HEARING

                                   BEFORE THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                           ONE HUNDRED NINTH CONGRESS

                                 FIRST SESSION

                                       ON

        MARCUS PEACOCK, TO BE DEPUTY ADMINISTRATOR, U.S. ENVIRONMENTAL
                               PROTECTION AGENCY

    SUSAN P. BODINE, TO BE ASSISTANT ADMINISTRATOR FOR THE OFFICE OF SOLID
       WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY

     GRANTA Y. NAKAYAMA, TO BE ASSISTANT ADMINISTRATOR FOR ENFORCEMENT AND
           COMPLIANCE ASSURANCE, U.S. ENVIRONMENTAL PROTECTION AGENCY

                                   __________

                                 JULY 14, 2005

                                   __________

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

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                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                           ONE HUNDRED NINTH CONGRESS
                                 FIRST SESSION

                      JAMES M. INHOFE, Oklahoma, Chairman
    JOHN W. WARNER, Virginia             JAMES M. JEFFORDS, Vermont
    CHRISTOPHER S. BOND, Missouri        MAX BAUCUS, Montana
    GEORGE V. VOINOVICH, Ohio            JOSEPH I. LIEBERMAN, Connecticut
    LINCOLN CHAFEE, Rhode Island         BARBARA BOXER, California
    LISA MURKOWSKI, Alaska               THOMAS R. CARPER, Delaware
    JOHN THUNE, South Dakota             HILLARY RODHAM CLINTON, New York
    JIM DeMINT, South Carolina           FRANK R. LAUTENBERG, New Jersey
    JOHNNY ISAKSON, Georgia              BARACK OBAMA, Illinois
    DAVID VITTER, Louisiana
                    Andrew Wheeler, Majority Staff Director
                     Ken Connolly, Minority Staff Director

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page

                                 JULY 14, 2005
                               OPENING STATEMENTS

    Baucus, Hon. Max, U.S. Senator from the State of Montana.........     7
    Boxer, Hon. Barbara, U.S. Senator from the State of California...    11
    Duncan, Jr., Hon. John J., U.S. Representative from the State of
      Tennessee......................................................     1
    Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     2
    Jeffords, Hon. James M., U.S. Senator from the State of Vermont..     4
    Lautenberg, Hon. Frank R., U.S. Senator from the State of New
      Jersey.........................................................     9
    Obama, Hon. Barack, U.S. Senator from the State of Illinois......    31
    Thune, Hon. John, U.S. Senator from the State of South Dakota....     8
    Vitter, Hon. David, U.S. Senator from the State of Louisiana.....     5

                                   WITNESSES

    Bodine, Susan P., nominated by the President to be Assistant
      Administrator, Office of Solid Waste and Emergency Response,
      U.S. Environmental Protection Agency...........................    15
        Committee questionnaire...................................... 63-69
        Prepared statement...........................................    61
        Responses to additional questions from:
            Senator Boxer............................................72, 74
            Senator Jeffords.........................................    70
            Senator Lautenberg....................................... 73-74
            Senator Obama............................................    74
    Nakayama, Granta Y., nominated by the President to be Assistant
      Administrator, Enforcement and Compliance Assurance, U.S.
      Environmental Protection Agency................................    17
        Committee questionnaire...................................... 78-86
        Prepared statement...........................................    76
        Responses to additional questions from:
            Senator Boxer............................................    87
            Senator Jeffords.........................................    87
    Peacock, Marcus, nominated by the President to be Deputy
      Administrator, U.S. Environmental Protection Agency............    13
        Committee questionnaire...................................... 40-48
        Prepared statement...........................................    38
        Responses to additional questions from:
            Senator Boxer............................................    55
            Senator Jeffords.........................................    49
            Senator Lautenberg.......................................    54
            Senator Lieberman........................................    59
            Senator Obama............................................    57

                              ADDITIONAL MATERIAL

    Letters from:
        Madigan, Lisa, Illinois Attorney General, April, 5, 3005.....    91
        Representative Lynch, May 9, 2005............................    93
        Representative Towns, May 9, 2005............................    93
        Representative Waxman, May 9, 2005...........................    93
        Senator Boxer, May 9, 2005...................................    93
        Senator Obama, May 9, 2005...................................    93
    Outstanding Document and Information Request to the EPA from
      Senator Jeffords, as of July 14, 2005.......................... 88-90

     NOMINATIONS OF MARCUS PEACOCK, SUSAN P. BODINE, AND GRANTA Y. YAKAYAMA

                                  ----------

                            THURSDAY, JULY 14, 2005

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
        The committee met, pursuant to other business, at 9:30 a.m.
    in room 406, Dirksen Senate Building, Hon. James M. Inhofe
    (chairman of the committee) presiding.
        Present: Senators Inhofe, Jeffords, Thune, Vitter, Baucus,
    Boxer, Lautenberg, and Obama.
        Senator Inhofe. The committee will come to order.
        We will recognize Jimmy Duncan for a brief introduction.
    Then when he is completed, we will have the panel come forward.
    At this time, I will recognize my good friend, Jimmy Duncan.
        Congressman Duncan from Tennessee.

    STATEMENT OF HON. JOHN J. DUNCAN, JR., U.S. REPRESENTATIVE FROM
                         THE STATE OF TENNESSEE

        Mr. Duncan. Thank you, Senator Inhofe. It was certainly a
    privilege to serve with you in the House and sit next to you on
    the Transportation and Infrastructure Committee. As you know, I
    chaired the Aviation Subcommittee for 6 years, and you served
    with me on that. You were a great Member of the House and
    certainly are a great Member of the Senate.
        It is an honor also to be here with Senator Baucus and
    Senator Lautenberg. Senator Baucus' in-laws live in Knoxville,
    and we are always pleased to have him visit there.
        It is a privilege for me to be here to introduce my good
    friend, Susan Bodine. I have done this four or five times on
    the Senate side. The last time I did this was, my good friend,
    Senator Baker, asked me to introduce someone to the Senate
    Foreign Relations Committee on his nomination to become
    Ambassador of Japan. As you know, that was a totally non-
    controversial nomination. I think the same could be said about
    the nomination of Susan B. Bodine to be Assistant Administrator
    for the Environmental Protection Agency.
        I think this nomination is of the same caliber. We have 6-
    year limits on our chairmanships, and while I still serve on
    the Aviation Subcommittee, it has been my privilege to serve
    for the past 5 years as chairman of the Water Resources and
    Environment Subcommittee. Susan has been the staff director for
    that subcommittee during that time. I can tell you, in my
    career as a lawyer, a judge, and a Member of the Congress, I
    have worked with thousands and thousands of people. Susan, in
    my opinion, is one of the absolute best that I have ever worked
    with in any area, in any field.
        She is a person of the highest integrity. She is one of the
    most competent, capable people that I have ever worked with.
    She is a graduate of Princeton and the University of
    Pennsylvania Law School. She was with Covington and Burling,
    one of our outstanding law firms. Since then, of course, she
    has worked with me on the Water Resources and Environment
    Subcommittee.
        She is an environmentalist with a heart, and she knows that
    there has to be balance. She knows that regulations fall the
    hardest or hit the hardest on the smallest of our businesses
    and farms. She has technical competence, and I just could not
    say enough good things about Susan Bodine.
        I think the Environmental Protection Agency, one time when
    Administrator Whitman testified before us, I told her that I
    thought she had one of the toughest jobs in Washington. Being
    one of the top officials of the EPA I know will be a very
    difficult job. But I don't know anybody that could do a better
    job than Susan Bodine.
        I was really honored when she asked me to come here and
    speak on her behalf this morning. I can recommend her in the
    highest possible way. We are very, very fortunate that she is
    willing to serve this Nation in this manner.
        Senator Inhofe. That's good, Congressman Duncan. I thank
    you for that very excellent introduction.
        So that you will be aware of it, it is my understanding you
    have the WRDA bill on the floor of the House right now, and you
    are probably in desperate need of Susan's help on that, I would
    guess.
        Mr. Duncan. That's correct.
        Senator Inhofe. What I think is going to happen here, since
    we have five stacked votes at 10 o'clock, we will take this on
    to 10:15, then recess and reconvene at 3 o'clock. So you will
    have her during that time, and you can prepare accordingly.
    Thank you very much, Jimmy.
        Mr. Duncan. Thank you very much.
        Senator Inhofe. I would like to ask the others to take
    their positions at the table.

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

        The purpose of today's hearing is to consider the
    President's nominees for three positions at the EPA: the Deputy
    Administrator, Assistant Administrator for the Office of Solid
    Waste and Emergency Response, and Assistant Administrator for
    Enforcement and Compliance Assurance.
        For the two assistant administrator positions, there has
    not been a confirmed person in place for a significant period
    of time. It is my hope that we can move all of these nominees
    quickly.
        For all of our nominees, these are their first positions
    that require Senate confirmation. So it is a new experience for
    you guys. I want to extend a welcome to you and your families.
    In a moment, we will ask you to, before your comments, each one
    introduce any members of your family or those that are with
    you.
        Marcus Peacock has been nominated to be the Deputy
    Administrator for the EPA, which is the second highest ranking
    position at the EPA. This is a very important position for both
    the management as well as developing and implementing the
    overall policy direction of the Agency. I am pleased that we
    have a person of quality to fill that position.
        Mr. Peacock has been serving in the Bush administration for
    more than 4 years as the Associate Director for Natural
    Resource Programs for OMB. Prior to that, Marcus worked for the
    House Transportation and Infrastructure Subcommittee as staff
    director. Interestingly enough, he did that the year that I
    left that committee and came over to the Senate. I guess you
    chased me off.
        [Laughter.]
        Senator Inhofe. In that position, he worked very closely
    with the committee on a number of issues, including being the
    House lead staffer in conference on the Disaster Mitigation
    Act, what we refer to as the Inhofe bill. That turned out very
    well, so I am particularly pleased to see you here today.
        Susan Bodine, I think we have heard a lot about her. Maybe
    we don't need to elaborate too much right now. We know about
    your reputation, how hard you work and how fair you are. We are
    delighted to have you here in this very significant position.
        I don't think there is any doubt about Ms. Bodine's
    credentials to head this office. She comes from a strong policy
    background dealing with the issues in this program office,
    including Superfund. She is currently staff director and senior
    counsel for the House of Representatives Water Resources and
    Environmental Subcommittee of the Committee on Transportation
    and Infrastructure.
        As most of the committee knows by now, the No. 1 Superfund
    site in the entire country is in my State of Oklahoma. It is
    known as Tar Creek. We have made substantial progress at Tar
    Creek since I became Chairman. We actually have people to sit
    down in the room and talk to each other about it. I think we
    have made some great strides.
        Granta Nakayama has been nominated to serve as the
    Assistant Administrator for Enforcement and Compliance
    Assurance. Mr. Nakayama is a partner for environmental law and
    product safety at the Kirkland and Ellis law firm here in
    Washington, DC. In addition, he is an adjunct professor at the
    George Mason University School of Law, where he teaches
    environmental law.
        He was previously with the U.S. Naval Nuclear Propulsion
    program, where he served in positions including chief of
    quality control as an engineer.
        Now, I would like, before turning it over to Senator
    Jeffords, to ask each of you the question to which you will
    have to verbally respond so we can record it, are you willing
    to appear at the request of any duly constituted committee of
    Congress as a witness?
        Ms. Bodine. Yes.
        Mr. Peacock. Yes.
        Mr. Nakayama. Yes.
        Senator Inhofe. 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. Nakayama. No.
        Mr. Peacock. No.
        Ms. Bodine. No.
        Senator Inhofe. Very good.
        Senator Jeffords.

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

        Senator Jeffords. Thank you, Mr. Chairman. I would like to
    thank all of the nominees here this morning, and want each of
    you to know that your commitment to public service, which is
    being demonstrated here today, is admirable.
        Each of you has been nominated to assume a leadership
    position in the Environmental Protection Agency. The Agency's
    mission, protecting the environment, is becoming more and more
    important, and more and more challenging as this country
    continues to grow and competing pressures are put upon the
    Nation's resources.
        In the positions that you now have been nominated to fill,
    you will need to weigh these pressures and make decisions that
    will impact the health and safety of our environment and our
    citizens. It is no secret that I have been deeply disappointed
    by many of the decisions and policies of the Bush
    administration when it comes to the environment. As I have
    stated on numerous occasions, I believe the White House has a
    shortsighted view of many of the issues affecting our air and
    our water and our land.
        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 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 status in its purview, including the
    development of regulations under those statutes.
        You may know that I have been requesting information from
    EPA dating back to 2001 on clean air regulation and many other
    programs within the Agency's scope. After numerous discussions
    about this request and others, promises were made that the
    information would be forthcoming. I am still waiting. I
    probably sound like the broken record, but every EPA nominee
    that has come before this committee since I rejoined the
    committee in 2001 has said they would work with us toward
    fulfilling the information requests, and I am still waiting.
        It is my hope that each of you will help me and others on
    this committee to fulfill our obligations to the American
    people for complete information regarding the health and safety
    of our environment. I will just say I am tired of waiting, and
    hopefully you will relieve me of that burden.
        [The referenced document follows on page 88.]
        Thank you.
        [The prepared statement of Senator Jeffords follows:]

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

        Each of you has been nominated to assume a leadership
    position at the Environmental Protection Agency. The Agency's
    mission--protecting the environment--is becoming more and more
    important and more and more challenging as this country
    continues to grow and competing pressures are put on the
    nation's resources. In the positions that you have been
    nominated to fill, you will need to weigh these pressures and
    make decisions that will impact the health and safety of our
    environment and our citizens.
        It is no secret that I have been deeply disappointed by
    many of the decisions and policies of the Bush administration
    when it comes to the environment. As I have stated on numerous
    occasions, I believe the White House has a short-sighted view
    on many of the issues affecting our air, our water and our
    land.
        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.
        You may know that I have been requesting information from
    EPA, dating back to 2001, on Clean Air Act regulations and many
    other programs within the Agency's scope. After numerous
    discussions about this request and others, promises were made
    that the information would be forthcoming. I'm still waiting.
        I probably sound like a broken record, but every EPA
    nominee that has come before this Committee since I rejoined
    the Committee in 2001 has said they would work with us toward
    fulfilling the information requests, and I'm still waiting.
        It is my hope that each of you will help me and others on
    this Committee fulfill our obligations to the American people
    for complete information regarding the health and safety of our
    environment. I am tired of waiting. Thank you, Mr. Chairman.

        Senator Inhofe. Thank you, Senator Jeffords.
        We will do the early bird rule, it will be Senator Vitter,
    Senator Baucus, Senator Thune, Senator Lautenberg and Senator
    Boxer.
        Senator Vitter.

     OPENING STATEMENT OF HON. DAVID VITTER, U.S. SENATOR FROM THE
                           STATE OF LOUISIANA

        Senator Vitter. Thank you, Mr. Chairman, thank you, Ranking
    Member Jeffords, for this hearing today.
        I appreciate the opportunity to be with the nominees, and I
    certainly echo Senator Jeffords' comments thanking you for your
    commitment to public service.
        Mr. Chairman, I am a little biased, but I have found some
    of the best things to come around here on the Senate side come
    from the House side. Two of our nominees are great examples of
    that today. I had the real pleasure of working with Susan in
    the House. She was incredibly helpful in helping us with the
    Lake Pontchartrain cleanup legislation when I was in the House.
    I know Chairman Young will face a real loss, but the EPA a huge
    gain as she moves over there.
        I have also worked with Marcus on the House Transportation
    Committee and had the opportunity to work with him after he
    moved to OMB as well. Probably better results when he was at
    Transportation than OMB, but had the pleasure of working with
    him in all situations.
        Grant I have not worked with before, but I have a great
    deal of respect for him. We both have higher degrees in
    Cambridge, MA, which I think makes us the two only Republicans
    in recent human history to come out of Cambridge, MA. I respect
    his background.
        On a serious note, I have met with two of these nominees
    about an issue I continue to be very focused on with this
    committee, and that is the proper relationship and use of
    section 10 of the Rivers and Harbors Act of 1899 and the
    relationship between that and section 404 of the Clean Water
    Act.
        Senator Inhofe. Why don't you hold up just a minute and
    let's find out who is hammering in the next room?
        [Laughter.]
        Senator Inhofe. Then we will continue.
        His comment about the House is very appropriate. I think
    Senator Lautenberg is the only one at this table who did not
    serve in the House.
        OK, Senator Vitter.
        Senator Vitter. Thanks, Mr. Chairman.
        As you know, I have a huge concern about some very recent
    use of section 10 of the Rivers and Harbors Act of 1899 used by
    the Corps to regulate activity miles and miles off any open
    navigable waters in Louisiana. Of course, section 10 is about
    navigable waters and keeping it clear for navigability.
        There are some real issues off those waterways; in
    particular, issues in Louisiana about the proper or improper
    logging of trees in coastal wetlands areas, coastal forests. I
    believe the right area of the law to address that in is section
    404 of the Clean Water Act. So I have talked to two of these
    nominees specifically about being engaged with EPA in terms of
    re-looking at the application of section 404, the proper
    relationship between that and section 10. I think that is a
    very promising and very correct way to address the real issues
    that we have in some of these areas well off any navigable
    waterway, and not abuse and expand the role of section 10 and
    use of that by the Corps.
        So I look forward to continuing to work with these folks
    and EPA on that solution, work with the committee as well in
    the context of WRDA. Thank you, Mr. Chairman.
        [The prepared statement of Senator Vitter follows:]
           Statement of Senator David Vitter, U.S. Senator from the
                               State of Louisiana
        Chairman Inhofe, Ranking Member Jeffords, thank you for holding
    this hearing today. I appreciate the opportunity to hear from our
    nominees. Before they get started, I want to make a few brief comments.
        I have reviewed the background of our nominees and am biased toward
    the confirmation of at least two of them. You know, Mr. Chairman, there
    is one thing I have found many good things come from the U.S. House of
    Representatives and two of our candidates come from the other body.
        I had the pleasure of working with Susan Bodine in the House. She
    was incredibly helpful in progressing the cleanup of Lake Pontchartrain
    and I was always impressed by her substance on issues. Chairman Young
    will have a significant loss and the EPA a huge gain in your new
    position. I wish you the best and look forward to working with you in
    your new role.
        Marcus Peacock also worked for the House Transportation Committee
    and we had the opportunity to work together on budget issues while he
    served at OMB. He wasn't always as loose with the checkbook as I had
    hoped, but he was always fair and upfront in our dealings.
        The only thing in common I could find with Grant Nakayama is that
    we both attended school in Cambridge so I guess that make us the only
    two Republicans to come out of Cambridge, MA.
        On a serious note, I have met with some of you regarding an issue
    we are having in Louisiana with the Corps of Engineers attempting to
    use a provision designed to prevent ``obstructions to navigation'' on
    dry land.
        Section 10 of the Rivers and Harbors Act of 1899 was intended to
    regulate, and I quote ``wharfs, piers, dolphins, booms, weirs,
    breakwaters, bulkheads, jetties, or the structures''. The Corps
    recently determined that their Section 10 jurisdiction could extend,
    ``several miles from open navigable water'' in Louisiana.
        This committee passed an amendment to the Water Resources
    Development Act (WRDA) by a 12-6 vote to clarify the Corps
    jurisdiction. I am committed to working with a number of Senators on
    the committee to address their concerns and believe the EPA could play
    an important role in this resolution.
        As you know, Congress passed the Clean Water Act to protect and
    improve our water quality. In an attempt to solve our problem here, I
    believe we should explore the relationship of the Section 10 and
    Section 404 regulatory programs. I look forward to working with you to
    resolve this issue.
        I thank the witnesses for being here today and look forward to your
    statements.

        Senator Inhofe. Thank you, Senator Vitter.
        Senator Baucus.

      OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE
                            STATE OF MONTANA

        Senator Baucus. Thank you, Mr. Chairman.
        Mr. Chairman, I am most interested in the nomination of Mr.
    Granta Nakayama to be Assistant Administrator for the Office of
    Enforcement and Compliance Assistance at EPA. While I value my
    relationship with all appointees at EPA, and for many, many
    years, given my State's close working relationship with the
    Agency, particularly through the Superfund program, and I must
    say, we have a lot of Superfund sites in Montana, Mr.
    Nakayama's background raises particular issues and concerns in
    relation to Libby, MT.
        I understand that Mr. Nakayama is currently a partner at
    the firm of Kirkland and Ellis. Kirkland and Ellis represents
    W.R. Grace in that company's chapter 11 bankruptcy filing.
        The firm also defends Grace against the criminal
    indictments that were brought against the company and against
    seven current and former Grace executives by the Justice
    Department. Those indictments allege that Grace and its
    executives engaged in a protracted conspiracy to hide the
    dangers of its vermiculite mining and milling operations from
    the people of Libby, MT.
        Mr. Chairman, these issues are relevant because it has
    become clear that W.R. Grace deliberately shielded billions in
    assets prior to filing for bankruptcy, leaving victims and the
    Government with pennies on the dollar for health care and
    cleanup costs. Only a small percentage of the money that Grace
    spun off has been recovered by the bankrupt estate.
        Grace has also consistently fought having to pay its fair
    share of cleanup costs in Libby, recently appealing a 2003
    Federal District Court ruling that it owes over $50 million to
    the U.S. Government and to U.S. citizens. To date, cleanup
    costs in the town of Libby have topped $100 million, due to the
    extensive nature of the contamination there, where asbestos has
    been found in hundreds of homes, gardens, high school tracks
    and other areas, subjecting area residents to ongoing exposure
    to asbestos fibers.
        Mr. Chairman, I wish you could meet Les Gramstead. I wish
    Mr. Nakayama could meet Les Gramstead. Les Gramstead was a
    miner. Les came down every day from the mine, his clothes caked
    with dust and powder. He would go home, embrace his wife, kids
    jump into his lap, they all have asbestos related disease. All
    of them. That is just one example.
        At that time and prior to that time, W.R. Grace knew it was
    contaminating Libby. It knew it. Records show it. What did
    Grace do about that? Nothing. Did Grace tell its citizens? No.
    Did Grace enact some protective actions to shield its employees
    from health risks? No. Nothing. Nothing. Nothing.
        Now that this has been uncovered, what has Grace done to
    give health benefits to people? Paltry little pittance. Plans
    that are full of loopholes, full of caveats, don't amount to
    anything. What recourse do the people of Libby have with
    respect to W.R. Grace? Again, nothing. There are no assets
    left. Grace and the firm of Kirkland and Ellis figured out a
    way to transfer 80 or 90 percent of Grace's assets off and have
    it shielded, so the people of Libby have no assets to go after.
        This is a huge problem, Mr. Chairman. It's not just Les
    Gramstead. It's maybe 20 percent of the people of Libby, MT,
    who have asbestos related diseases. And this isn't just
    ordinary asbestos. This is tremulite asbestos. Tremulite
    asbestos is much more vicious. Why? Because it is a form of
    asbestos, tremulite asbestos, gets into your lungs, has deeper
    hooks that lasts longer, longer latency, harder to detect, and
    it kills more easily. People in Libby are dying, and some have
    already died.
        So the question is, what do we do about this? It may be
    unfortunate that Mr. Nakayama has been tainted by Grace's
    reputation in my home State, and indeed elsewhere in the
    country. I understand that Kirkland and Ellis has stated that
    Mr. Nakayama has nothing to do with the firm's representation
    of W.R. Grace.
        However, I would not be doing my duty to represent the best
    interests of the citizens of the State of Montana and Libby if
    I did not carefully consider Mr. Nakayama's nomination and any
    connection he may or may not have with W.R. Grace.
        It is critical, as zealous enforcement is necessary in this
    instance to hold Grace accountable for the full extent of its
    wrongdoing in Libby. There is not a lot of gray area here.
    Anything that might weaken such enforcement raises a red flag
    with me. At the very least as a partner at Kirkland and Ellis,
    Mr. Nakayama has profited, he has profited by his firm's
    representation of Grace.
        Additionally, if confirmed, Mr. Nakayama will have to
    recuse himself from any matters involving W.R. Grace at EPA.
    What kind of message does this send to EPA's rank and file and
    to Grace, if EPA's top enforcer cannot lead the charge against
    such an egregious violator of the Nation's environmental and
    public health and safety laws?
        Given the scope of Mr. Nakayama's environmental practice at
    Kirkland and Ellis, in how many other instances will Mr.
    Nakayama have to recuse himself in pursuing an enforcement
    matter? These are important considerations to take into account
    as we review Mr. Nakayama's record and his fitness to hold the
    top enforcement post at EPA.
        Mr. Chairman, I look forward to hearing from Mr. Nakayama
    directly and from other nominees. Thank you.
        Senator Inhofe. Thank you, Senator Baucus.
        Senator Thune.

      OPENING STATEMENT OF HON. JOHN THUNE, U.S. SENATOR FROM THE
                         STATE OF SOUTH DAKOTA

        Senator Thune. Thank you, Mr. Chairman and Senator
    Jeffords. I also want to welcome our nominees here this morning
    and will be very brief in my remarks. These are important jobs,
    important positions that we are talking about and important
    issues with which you will deal in your capacities there.
        But as Senator Vitter alluded to, I also had the experience
    of working with Ms. Bodine and Mr. Peacock as a member of the
    House Transportation Committee. Both are extremely highly
    qualified and capable public servants, people who operate with
    a high level of professionalism and I had the chance to work
    with them on the last highway bill, TEA-21 and subsequently
    with Mr. Peacock at the OMB, although I would echo what Senator
    Vitter said, his answers always seemed to be more favorable
    when he was on the Transportation Committee than they were at
    OMB.
        But in any event, both of these people bring great
    experience, quality capabilities and solid character to your
    new positions, and I very much look forward to working with
    you. Also, Mr. Nakayama, I should say I don't have experience
    with, but I look forward to working with you as this process
    moves forward as well. We hope that we will have a lot of
    successes in the years ahead in addressing what are some of the
    major challenges facing us in terms of environmental policy and
    doing it in a way that is conscious and consistent with the
    very best environmental standards, but in a sensible and
    common-sense, science-based approach, which I think is a
    perspective that I hope we can all bring to this process.
        Thank you again for your willingness to serve. I look
    forward to your testimony and to working with you as the
    confirmation process moves forward.
        Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Thune.
        Senator Lautenberg.

      OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR
                      FROM THE STATE OF NEW JERSEY

        Senator Lautenberg. Thanks, Mr. Chairman, for calling this
    hearing and giving us an opportunity to learn more about the
    qualifications of these nominees. The American people are so
    dependent on Government to protect them against environmental
    problems, global warming, contaminated water, polluted air, all
    of those things. This is one of the principal committees in
    establishing standards for our future generations, our
    children, our grandchildren.
        I am concerned also about the fact that Mr. Nakayama and
    Mr. Peacock both have had significant private interests on the
    side of industry before serving in the Government. It seems
    that at EPA vigilance is lacking. When I see the Justice
    Department cave in to the tobacco industry, when a former big
    oil executive revised reports on global warming, it raised
    doubts on the part of the American people. Our Government has
    to look out for the public interest, not the particular special
    interest.
        That is true, absolutely true in case of the positions that
    both of you are ready to assume. We are being asked to confirm
    Mr. Peacock as the Deputy Administrator, Environmental
    Protection Agency. His job is to use the skill and knowledge
    that he has acquired for all of our people. The nomination
    comes at a time when EPA scientists have expressed concerns
    about a new Agency plan for risk assessments that will give
    more influence to special interests.
        When we had an opportunity to talk a few weeks ago, Mr.
    Peacock, I asked that you look into that situation, and I am
    still waiting to hear from you.
        [The response referred to follows:]

        I have looked into the issues you raised, and my response indicates
    what I have learned about this issue.
        There are two major purposes of the proposed changes: (1) to
    identify and resolve major scientific issues early in the assessment
    development process and thereby facilitate high quality and timely
    completion of assessments; and (2) to increase transparency in the
    assessment development process and thereby assure full and open
    consideration and scientific review of relevant information.
        EPA is planning to hold a public workshop on the proposed new
    process to solicit comments, suggestions and concerns from the IRIS
    user community and stakeholders. The workshop will be announced in the
    Federal Register and on the IRIS web site.

        Senator Lautenberg. We are being asked to confirm Mr.
    Nakayama as a top ranking compliance official. Your job would
    be to make sure that industry is complying with guidelines and
    regulations that are put in place to protect the American
    people.
        I remind each of you that you may have to wear a different
    hat in this job, and I hope that you can focus on what the
    American people need.
        When I came to the Senate, as the Chairman noted, I am the
    only one here who did not come from the House of
    Representatives. I came from the corporate world. I was asked
    by a reporter during the campaign what I would do if a question
    came up, with my company doing any business with the
    Government. I made a commitment that I would sell the stock
    that I had in the company, and it turned out to be a very large
    company, because my mission, as I took the oath, I knew that it
    was my mission to take care of the people I represented.
        When I think about my legislative responsibilities, I
    always picture my 10 grandchildren. They are all very young,
    the oldest is 11. When I see that he has asthma and my daughter
    has to find the nearest emergency room before he can play
    baseball or whatever sport he is engaged in to make sure that
    if he has an attack that they can take him to the right place.
        But each of you who have family responsibilities also have
    to have the same feeling about what you want. So when we have a
    chance to ask questions, Mr. Chairman, we will go into some
    detail and hope that we can establish the fact that the
    particular roles that you had in the past are behind you and we
    are going to be looking forward as representatives of the
    American people. Thank you.
        [The prepared statement of Senator Lautenberg follows:]
         Statement of Hon. Frank R. Lautenberg, U.S. Senator from the
                              State of New Jersey
        Mr. Chairman, thank you for calling this hearing and giving us an
    opportunity to learn more about the qualifications of these nominees.
    The American people depend on our Government to be vigilant in
    safeguarding our environment and health. In some cases lately, it has
    seemed that vigilance was lacking.
        When the Justice Department suddenly appeared to cave in to the
    tobacco industry or when a former big oil executive revised reports on
    global warming . . . it raised doubts in the minds of the American
    people. Our government must look out for the public interest--not
    special interests. That is certainly true in the case of the important
    positions we are considering today.
        We are being asked to confirm Mr. Peacock as a Deputy Administrator
    of the Environmental Protection Agency. His job would be to protect our
    environment--not the industry he used to represent. His nomination
    comes at a time when EPA scientists have expressed concerns about a new
    agency plan for risk assessments that will give more influence to
    special interests. When I had an opportunity to speak with Mr. Peacock
    a few weeks ago, I asked him to look into that situation. I'm still
    waiting to hear back from him.
        We are also being asked to confirm Mr. Nakayama as a top-ranking
    compliance official. His job would be to make sure that industry is
    complying with guidelines and regulations that are put in place to
    protect the American people. Before we can confirm him, he needs to
    assure us that his first allegiance would be to the public interest--
    not special interests.
        I look forward to the opportunity to ask these nominees some
    questions about how they would approach the jobs for which they have
    been recommended. Once again Mr. Chairman, thank you for holding this
    hearing.

        Senator Inhofe. Thank you, Senator Lautenberg.
        Senator Boxer.

    OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE
                          STATE OF CALIFORNIA

        Senator Boxer. Thanks, Mr. Chairman, very much for this
    opportunity.
        I have little chance to talk about the problems with the
    Superfund program, just because we haven't had hearings in many
    years, frankly. So this is an opportunity for me to focus in on
    that program. As we all know, the heart of EPA's mission is to
    protect the health of our citizens, including families, and I
    believe particularly young children. That is a moral
    responsibility. Of course these nominees, whom I welcome here
    this morning, will be entrusted with that important
    responsibility.
        As the ranking member for the Superfund and Waste
    Management Subcommittee, I want to focus my remarks this
    morning on the Superfund program and the kind of leadership
    that will be needed to effectively deal with the threats to the
    health and welfare of the 10 million children who live within 4
    miles of a Superfund site. Let's think about that: 10 million
    children who live within 4 miles of a Superfund site. We know
    which States have the most sites, California has almost 100
    sites. There are those on this committee who have even more
    sites.
        So we need to do much more than we are doing to protect
    from the threat posed by these sites.
        I want to illustrate the point, Mr. Chairman. This is
    important, your staff was there. In a recent staff briefing, my
    staff asked a senior representative of the Superfund program a
    question. In answering that question, he said, ``There are over
    100 sites where human exposure is not under control.'' There
    are over 100 sites where human exposure is not under control.
    In other words, where the children and the families are getting
    impacted with the poisons on those sites.
        Now, if you go up on EPA's web site, you will find that
    that is the case. One hundred and three Superfund sites, this
    is directly from their website, in 33 States, where human
    exposure is not under control. I would like to ask that this be
    included in the record, and I will share it with colleagues on
    both sides of the aisle, so you can see where your State fits
    into this.
        Senator Inhofe. Without objection.
        Senator Boxer. I will pass it along.
        What is very troubling is that EPA on this website says
    very little about the extent of the risks there. So I intend to
    ask this nominee about this disturbing fact, and for detailed
    information on these sites and the risks that they pose. I want
    to join with Senator Jeffords. For so long we have been trying
    to get information. We cannot get information. Whether you are
    a Republican or a Democrat, we should be able to get
    information.
        Now, if one of my colleagues on the other side gets this
    information, he may feel that one or two sites disturb him or
    her, and I may feel that 80 disturb me, that's not the
    question. We deserve to have this information. These are our
    children.
        I asked my staff to follow up on one particular site
    because it had gotten a lot of publicity. It happens to be in
    Nebraska. What we found, along with other information, shows
    that there are serious deficiencies in the Superfund program
    that need to be addressed by any future leader of that program.
        The Omaha lead site covers thousands of acres where tens of
    thousands of people live. Several hundred children have tested
    positive for the past several years for lead poisoning, some
    quite severe. CDC estimates the number as much higher.
        Much of the site affects residential areas, so many
    children are affected through their homes, schools and day
    care. The Washington Post ran a front page story at
    Thanksgiving on one of the young victims, and we will just show
    you a picture. Elam Jacob is 5 years old. He has suffered
    irreversible brain damage from extraordinarily high levels of
    lead exposure. This beautiful child.
        This site attracted enough attention that Members of
    Congress got involved. The Administrator paid a visit, and more
    money was announced. But the Superfund program does not have
    the funds to ensure that the worst yards in this site are
    addressed in less than 5 years. In the meantime, Elam's mother
    explains that the EPA has said the children should not play on
    windy days. I want to ask all of us here who are dads, moms,
    grandmas and grandpas, this is what they have to tell their
    children, don't play on windy days, and take your shoes off
    when you come inside and other kinds of things. It goes back to
    Senator Baucus' point, a simple thing of taking a child on your
    lap.
        This is what these families are putting up with because we
    haven't cleaned up the site. To me, to tell a child, don't play
    outside on a windy day, is simply not an option for what we
    should be doing.
        Mrs. Jacob has pleaded with EPA to test her yard for
    months, and they have not done it. Now Mrs. Jacob's youngest
    child has also tested positive for lead poisoning. Now they
    have two children with lead poisoning, and EPA says, sorry, 5
    years at the least until we can clean it up.
        So here's what we have. We have these sites----
        Senator Inhofe. Let me interrupt for just a minute. Are you
    about to wrap up? Because you have gone considerably over your
    time.
        Senator Boxer. I am, you will be happy to know.
        I will ask unanimous consent that the rest of my statement
    be placed in the record, and I will wrap up in 1 minute.
        Senator Inhofe. Without objection.
        Senator Boxer. I know it is hard to hear this. I don't like
    to talk about it, either. But that's what's happening at these
    sites. This isn't just on a piece of paper a list of sites.
    These are sites where children live very close to them. It's
    dangerous, and we cannot get the information.
        So to get to the point, Ms. Bodine, I think you can tell I
    am going to want information from you. I am going to want a
    pledge for the information. In the question period, I will ask
    specifically what I want and will get your commitment, I trust,
    to that information.
        Thank you very much, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Boxer.
        Our votes have started, but we are going to go ahead and
    take 15 minutes now, and I would like to see if we couldn't
    possibly get through our opening statements. I would like to
    have all of you who have brought family here to begin by
    introducing your families, because they may not be able to
    return at 3 o'clock.
        Mr. Peacock.

     STATEMENT OF MARCUS PEACOCK, NOMINATED BY THE PRESIDENT TO BE
       DEPUTY ADMINISTRATOR AT THE U.S. ENVIRONMENTAL PROTECTION
                                 AGENCY

        Mr. Peacock. Thank you very much, Mr. Chairman, Senator
    Jeffords, for scheduling this hearing today.
        I will go ahead and just briefly introduce my family that
    is here today. First of all, my wife, Donna McLean.
        Senator Inhofe. Please stand up.
        Mr. Peacock. She has a child on her lap. She may be
    familiar to some members of the committee. She was the Chief
    Financial Officer at the Department of Transportation for a
    number of years. She has brought my two 8-year-old daughters,
    Mey McLean and Iona McLean, who inexplicably decided to wear
    similar dresses today. I don't know how that happened.
        [Laughter.]
        Mr. Peacock. Also, from New York City, my sister, Felicity
    Fridman is visiting, and her son, Vladmir Fridman. Then from
    Rush Tower, MO, and I think while they are here the population
    of Rush Tower has been reduced by about 25 percent, my mother-
    in-law, Carolyn McLean and father-in-law, Ray McLean.
        Then finally, from Chevy Chase, DC, I have my sister-in-
    law, Robin Miles McLean, who is a former employee of EPA and
    now full-time mom. She has brought her workload with her today,
    Jacob Miles-McLean, Haley Miles-McLean, and finally, little
    Nate. I appreciate their support.
        Senator Inhofe. Your time has expired.
        [Laughter.]
        Mr. Peacock. It's all yours, Susan.
        Senator Inhofe. Please continue.
        Mr. Peacock. Mr. Chairman, Senator Jeffords and
    distinguished members of the committee, I am honored to appear
    before you today as the President's nominee for the position of
    Deputy Administrator of the Environmental Protection Agency. I
    am indebted to the President for his trust and the privilege of
    serving in this new capacity.
        There are three important things I would like you to know
    about me. They make up who I am and govern how I would conduct
    the job of Deputy Administrator, if confirmed. First, I am a
    first generation American. My parents emigrated from war-torn
    Europe with three suitcases, a couple of trunks and $200. They
    left their family and friends behind and took a great risk, not
    just for themselves, but for their children and their
    children's children. That is the greatest gift that I have ever
    received.
        I love this country and cherish the rights we enjoy, rights
    that give us the opportunity to realize our dreams. The first
    function of any government, in my opinion, is to protect and
    honor those rights.
        Second, I grew up in Minnesota, and Minnesota gave me two
    things. First, you can't grow up in Minnesota without
    developing an appreciation for the outdoors. Even when it's 20
    degrees below zero. Indeed, I was at winter camp when I first
    developed a great interest in the environment. I was about 15
    years old and laying out an orienteering course. I found myself
    in the middle of a frozen lake, while a fellow Boy Scout moved
    a marker along the shoreline.
        For some reason at that moment, the peacefulness and the
    serenity of that setting really connected with me. From that
    time on, my eyes were opened to a deeper interest in the wonder
    of nature. That started a lifelong interest in the natural
    world. It first drove me to an interest in science and then
    ultimately engineering. It's a fascination my wife and I now
    share with our children by going hiking, camping, canoeing and
    birdwatching.
        Minnesota also gave me a strong sense of community. Public
    service is a high calling in Minnesota. An adage etched on the
    old Minnesota Convention Center really struck home with me. It
    said, ``Participation in the rights of citizenship presumes
    participation in the duties of citizenship.'' My parents had
    helped me appreciate the rights of citizenship in the United
    States, but Minnesota helped me understand that those rights
    came with an obligation to the community and to the Nation.
        Finally, I am an engineer. I have not practiced engineering
    as a profession for many years. Nonetheless, I think I practice
    engineering every day. Because to me, the core of engineering
    is a disciplined process for problem solving. It requires one
    to be clear, open-minded and analytical. It focuses on getting
    results.
        As a manager and a budget officer, I have seen many
    different types of problems. Engineering has given me the
    skills to break them down into manageable pieces and work with
    others to come up with solutions that get results. I think
    that's exactly the kind of skill one needs to be a Deputy
    Administrator.
        Should I be confirmed, I would bring to EPA a strong sense
    of public service, a deep appreciation for the environment and
    an excellent set of problem-solving and management skills.
    Under the President's leadership, our country has made great
    strides in cleaning up our air, water and land in a way that
    allows our Nation to continue to grow and prosper. The air my
    children breathe today is much cleaner than when I was a kid,
    and our food and drinking water supplies are safer and our land
    is better protected.
        Building on this success, EPA Administrator Steve Johnson
    has laid out two challenges for the Agency. First, we must make
    sure we are using the best available science to make decisions.
    Second, we must formalize collaborative approaches to solving
    problems. On this second point, as has been said before,
    traditional methods of environmental protection do not work as
    well as in the past on our remaining environmental challenges.
    Collaborating with States and other partners to solve remaining
    environmental problems needs to become more routine. I look
    forward to helping the Administrator tackle those challenges.
        Mr. Chairman, if confirmed, I will do everything I can as
    Deputy Administrator to continue to serve the people of this
    great country, protecting their health and the health of the
    environment. I thank you very much and would be happy to answer
    any questions.
        Senator Inhofe. Thank you, Mr. Peacock, for that excellent
    opening statement.
        Ms. Bodine.

    STATEMENT OF SUSAN P. BODINE, NOMINATED BY THE PRESIDENT TO BE
     ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY
             RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY

        Ms. Bodine. Thank you, Senator.
        First, let me introduce my family. I have with me today my
    husband, David Bodine, who is a research scientist at the
    National Institutes of Health, and my two sons, Christopher
    Bodine, he is 14 years old and about to enter high school in
    the fall, and then my second son Steven Bodine, who is 11 years
    old and about to enter middle school in the fall.
        Senator Inhofe. Thank you very much.
        Ms. Bodine. Mr. Chairman, Senator Jeffords, distinguished
    members of the committee, thank you for the privilege of
    appearing before you today as nominee for the position of
    Assistant Administrator for the Office of Solid Waste and
    Emergency Response. I am honored that President Bush,
    Administrator Johnson and this committee are considering me for
    this position.
        I have worked on environmental issues for my entire 17-year
    professional career, first as a practicing attorney and then as
    counsel to the Water Resources and Environment Subcommittee of
    the House Committee on Transportation and Infrastructure. In
    private practice, I learned the substance of our environmental
    laws, but I also learned from experience that the best way to
    approach a cleanup problem was from a technical and engineering
    perspective.
        In fact, I found that the best way to approach these issues
    was to get all the scientists and engineers in a room and find
    the most cost-effective way of cleaning up the site. That is
    the outcome that everybody wants to achieve.
        I also found it very rewarding to work with clients to keep
    them in compliance with the law. This was very challenging.
    Many of our environmental statutes are extremely complex and
    the regulations are even more so.
        When I moved to Capitol Hill to work on the staff of the
    House Transportation and Infrastructure Committee, I kept these
    same objectives and approach: focusing on an outcome, a clean
    environment, but also trying to ensure that the laws that are
    established to achieve this outcome are clear, understandable
    and workable.
        It has been my experience over 10\1/2\ years working in the
    House that even when an issue is contentious or complex, if you
    start by trying to identify your goal and agree on a common
    goal, then it's much more likely that you are going to find
    common ground on how to achieve that goal.
        As this committee knows, that was the process used to
    develop the Small Business Liability Relief and Brownfields
    Revitalization Act, which was the subject of several years of
    work and became law in January 2002. To reach agreement on the
    first title of that Act, environmental and business groups had
    to agree that holding small business owners liable for
    municipal solid waste was not going to facilitate cleanups.
        To reach agreement on title II of that Act, which is the
    Brownfields Revitalization title, municipal groups, developers
    and environmental groups all had to agree that stimulating
    brownfields development was a goal that everyone wanted to
    achieve. The method to achieve that goal was changing Superfund
    liability, to address the issue of prospective purchaser
    liability. But by focusing on the goal, the groups achieved
    consensus that changing liability was acceptable.
        If confirmed by the Senate, I would like to take the same
    consensus-building approach to my new duties in the Office of
    Solid Waste and Emergency Response. I know that we all share
    the goal of protecting the environment. I know that we share
    the goal of seeing hazardous waste sites cleaned up more
    quickly, and I know we share the goal of making environmental
    regulations clear, understandable, and implementable.
        If confirmed by the Senate, I would work with all of you on
    a bipartisan basis to find sustainable solutions to achieve
    these goals. American citizens expect and deserve a thriving
    economy and a clean, safe and secure environment.
        I am going to submit the rest of my statement for the
    record, and let me just say in closing, I look forward to any
    questions you and your colleagues may have. Thank you very
    much.
        Senator Inhofe. Thank you.
        Mr. Nakayama, if you would prefer to withhold your opening
    statement until we have more here, it seems like some of those
    who are making some of the accusations are off voting now.
    Would you prefer to do that?
        Mr. Nakayama. That would be fine.
        Senator Inhofe. All right, then what we will do is go ahead
    and recess until 3 o'clock. Do you have any family here to
    introduce?
        Mr. Nakayama. Yes, I do.
        Senator Inhofe. Why don't you go ahead and do that, so they
    won't have to come back.
        Mr. Nakayama. Thank you, Senator.
        Mr. Chairman, my wife Larrene is here today and my daughter
    Meredith, who will be entering seventh grade, is here also.
        Senator Inhofe. That's great. It's nice to have both of you
    here.
        We will go ahead and do that. You will be on first thing at
    3 o'clock for your opening statement, then we will have our
    rounds of questioning take place.
        Thank you very much. We are in recess.
        [Recess.]
        Senator Inhofe. The meeting will come to order.
        When we left last time, Mr. Nakayama had not had a chance
    to make his opening statement. We will recognize you for that
    purpose now.

    STATEMENT OF GRANTA Y. NAKAYAMA, NOMINATED BY THE PRESIDENT TO
        BE ASSISTANT ADMINISTRATOR, ENFORCEMENT AND COMPLIANCE
            ASSURANCE, U.S. ENVIRONMENTAL PROTECTION AGENCY

        Mr. Nakayama. Thank you, Mr. Chairman.
        Mr. Chairman, Senator Jeffords, distinguished members of
    the committee, it is an honor and a pleasure to appear before
    you this afternoon as the nominee to be EPA's Assistant
    Administrator for the Office of Enforcement and Compliance
    Assurance.
        I am honored that President Bush and Administrator Johnson
    have invited me to join the Administration to improve public
    health and the environment in this great Nation. EPA has an
    important responsibility to protect the land, air and water of
    our Nation. From the Agency's inception, compliance and
    enforcement have been an important cornerstone of EPA's
    programs to improve public health and the environment.
        Vigorous enforcement is a crucial tool that ensures the
    promise of our environmental statutes becomes an environmental
    reality. Administrator Johnson has expressed his commitment to
    a strong Federal enforcement program, and it is incumbent upon
    any nominee for this position to share that commitment.
        Just as Americans must be able to trust and rely on EPA to
    protect the land, air and water, the Agency is committed to
    obtaining the support of citizens and communities throughout
    our country in protecting the environment. If confirmed, it
    will be my goal to work collaboratively to ensure that citizens
    can both more easily assist EPA in identifying potential
    environmental enforcement issues and can more easily receive
    assistance in complying with environmental regulations. The
    goal is to make a more ``user-friendly'' and efficient
    enforcement organization.
        To this end, my prior experiences have provided me with
    some unique preparation for this position. The Assistant
    Administrator for Enforcement and Compliance Assurance must
    have an understanding of environmental law. I am currently a
    partner at Kirkland and Ellis in the environmental and product
    safety practice area. I joined the firm in 1994 after attending
    law school in the evening and graduating as the valedictorian.
    The first case I worked on as an attorney was an environmental
    enforcement matter brought by EPA's enforcement staff, and I
    have worked on similar matters ever since.
        Today, my practice includes advising clients on a daily
    basis regarding their responsibilities in complying with our
    Nation's numerous environmental statutes. Since 1998, I have
    also served as an Adjunct Professor of Law at the George Mason
    University School of Law, where I currently teach Environmental
    Regulation. Practicing and teaching environmental law has
    provided an appreciation of the challenges of understanding,
    complying with, and enforcing these complex statutes.
        Second, the nominee must be able to manage a large
    organization within the unique structure of the Federal
    Government. I started my career in the military, in the U.S.
    Navy. After being selected by Admiral Rickover and serving for
    5 years as an officer in the Navy Nuclear Propulsion Program, I
    then served for 8 years as a civilian manager reporting to
    Admiral Rickover's successors. In that program, I oversaw the
    manufacture of the prototype reactor for the Seawolf submarine,
    the SSN-21.
        Later, I was a manager with responsibility for welding,
    non-destructive testing, and quality assurance. During this
    formative period, I observed first-hand the high standards and
    dedication of the individuals who served in the Naval Nuclear
    Propulsion Program, and the results that could be achieved by a
    group of highly motivated Federal employees.
        Last, I have found that technical training and the ability
    to process technical information can provide additional
    insights into the practice of environmental law. My educational
    background, including Bachelor and Master of Science degrees
    from MIT in Nuclear Engineering, combined with my prior
    experience as a practicing nuclear engineer, has provided a
    strong technical background. In my experience, a first-hand
    understanding of the technology and science at issue in the
    environmental area inevitably leads to a deeper and more
    realistic appreciation of the problems and challenges faced by
    both regulators and the regulated community.
        EPA is most fortunate to have a very dedicated, extremely
    capable staff in the enforcement and compliance assurance
    office. I have personally worked with many of them over the
    last decade and I have been uniformly impressed by their
    dedication and professionalism. They work extremely hard
    because they care about the environmental health of the Nation.
    As enforcers of the environmental laws, they must also adhere
    to the highest ethical standards. It is a group that any
    environmental attorney or engineer would be proud to join.
        If you should honor me by confirming my nomination, I look
    forward to working with the members and staff of this
    distinguished committee, Administrator Johnson, and President
    Bush to make the environment better for all Americans. Thank
    you for the opportunity to appear before you today. I will be
    happy to answer any questions.
        Senator Inhofe. Thank you very much, Mr. Nakayama.
        First of all, in my opening statement, and I am sure you
    were aware of it before this hearing, we talked about Tar
    Creek, the most devastating Superfund site in America. For 25
    years, they poured money on the problem, they tried different
    things, nothing seemed to work. They were trying to get people
    to move out, without correcting the problem. We had to remind
    them, it's going to have to be corrected anyway.
        When I became chairman, I felt that if an effort can be
    done, it should be done during my chairmanship. If I didn't do
    it, I would be quite embarrassed.
        I found that the major problem that we had at that time was
    the various bureaucracies not working with each other. We had
    the Bureau of Indian Affairs, we had the Department of
    Interior, we had the Corps of Engineers, we had the EPW, all of
    them that wouldn't get in the same room together. Since that
    time, we have changed that. They have come together, we now
    have a plan, and it is working with all of the Federal
    agencies, as well as the State of Oklahoma DEQ. The University
    of Oklahoma is the lead Agency, the contractor. We are actually
    making headway in getting it done.
        This is mainly because it enjoyed the top priority of the
    EPA and at that time the previous chairman, Mike Leavitt. So I
    guess I want to ask each one of you, if I have every bit the
    commitment from you that we had from Mike Leavitt and that we
    are going to be getting from Steven Johnson? I'll start with
    you, Mr. Nakayama.
        Mr. Nakayama. Thank you, Mr. Chairman. You have my
    commitment. I understand that the Tar Creek site is a very
    important priority for the Agency, appropriately so. Thanks to
    your efforts, we have made tremendous progress, the Agency has
    made tremendous progress, and I look forward to working with
    you and the committee to continue that progress. I understand
    Region VI has recently submitted a claim for over $100 million
    for cleanup costs and that work is proceeding, and it is
    proceeding at a rapid pace.
        Senator Inhofe. It is.
        Mr. Peacock. Yes, Mr. Chairman, actually it is a good
    example of the sorts of sites that we are left with in the
    Superfund program. They are particularly difficult and complex
    and require a lot more effort than the smaller sites that we
    had in the past. I would be interested in perhaps visiting Tar
    Creek, it seems a good idea, getting to know it much better.
        Senator Inhofe. Yes, it is one of those things where you
    almost have to be there. I know that Administrator Leavitt was
    quite surprised, after reading all the staff reports and seeing
    the pictures, actually going there. It is different.
        Ms. Bodine.
        Ms. Bodine. Senator, it is my understanding that this is a
    very high risk site. I believe that Superfund sites should be
    prioritized based on risk, and that would put this site very
    much near the top.
        Regarding your issue on the interagency relationships, I
    agree that is critical, especially at a site like Tar Creek. If
    confirmed, I will certainly make sure that EPA is working
    collaboratively with the other agencies.
        Senator Inhofe. I really believe that at least the two of
    you have demonstrated clearly you can work with other agencies
    and break down those barriers, so I appreciate your response
    very much.
        Mr. Nakayama, there were some charges fired at you during
    the first session that we had today about your association with
    the W.R. Grace Company. I would like to have you take all the
    time you need to respond to those charges. Would you like to do
    that?
        Mr. Nakayama. I certainly would, Mr. Chairman.
        Senator Inhofe. I guess the first question I would ask is,
    did you ever have any direct involvement or relationship with
    W.R. Grace personally?
        Mr. Nakayama. Thank you for the opportunity to respond, Mr.
    Chairman. I have had no involvement with the Libby, MT matter
    involving W.R. Grace, direct or indirectly. Second, I have
    never worked on any legal matter involving W.R. Grace. I have
    never represented W.R. Grace in any of my practice.
        So frankly, I am a little bit puzzled by the attention, but
    certainly understand people's concerns.
        Let me also say that with respect to serving, if I am
    confirmed as the Assistant Administrator, I would recuse myself
    from any mater involving W.R. Grace. So I would have had no
    involvement in my private practice prior to joining the Agency,
    and anticipate no involvement if I am confirmed and serving as
    the Assistant Administrator.
        Senator Inhofe. At Kirkland and Ellis, how many attorneys
    are there? You have accountants, too, I guess.
        Mr. Nakayama. It is a very large firm. I am not sure of the
    exact number, I believe it is in excess of 700 attorneys. So it
    is quite a number, with thousands of cases.
        Senator Inhofe. In something that large, are they broken
    down into specialties? I would assume they would be.
        Mr. Nakayama. Yes. Attorneys in a large firm typically work
    in a practice area or group. The particular groups that were
    handling the W.R. Grace matter, it's my understanding, they are
    certainly not in the group that I work in. I work the
    environmental and consumer product safety practice.
        But the people who are working on the W.R. Grace matter,
    frankly, I don't even know the attorneys. I don't know who is
    working on it. But I know I have never discussed the case with
    anybody at the firm. All I know about the case and the matter
    is what Senator Baucus relayed in my meetings with him what I
    have read and in the press.
        Senator Inhofe. After having the experience dealing with
    and working with 100 U.S. Senators, that is difficult enough. I
    would imagine that it would be awfully difficult to know what
    the other 699 attorneys are doing in a firm.
        Senator Jeffords.
        Senator Jeffords. Mr. Peacock?
        Mr. Peacock. Yes, Senator.
        Senator Jeffords. The President has finally acknowledged at
    the G8 meeting what the world's best climate scientists have
    known for more than a decade: man-made greenhouse gases are
    contributing to and accelerating the global warming. Your
    opinion, as contained in the infamous memo of March 8, 2001,
    that you co-authored, recommended that, ``It would be premature
    at this time for the President to propose any specific policy
    approach aimed at addressing global warming.''
        That memo rationalized and attempted to justify the
    President's reversal of his campaign pledge to control carbon
    dioxide from power plants. Just 2 days later, the President
    also withdrew from Kyoto, and since that has not attempted any
    serious domestic or international effort to achieve real
    reductions in total U.S. and global greenhouse gas emissions.
        Given the President's most recent acknowledgement, what
    would be the most appropriate message on carbon constraints or
    a similar price signal for the Federal Government to send to
    the market to actually achieve real near-term reductions in
    greenhouse gas emissions?
        Mr. Peacock. Thank you for the question, Senator. I just
    want to make it clear, both the President and myself take this
    as a very serious matter, not just from a public policy
    perspective, but I have two 8-year-old kids, so the world we're
    headed into is one of interest and concern.
        The President has felt for some time that there was a man-
    made contribution to greenhouse gases and then also to
    increases in temperature. That's why in February 2002, the
    President set out an aggressive target of reducing greenhouse
    gas intensity from 22 percent to 18 percent by 2012.
        That is a reduction of about 500 million metric tons of
    greenhouses gases than would have otherwise been released by
    2012. He has since laid out an aggressive program, both in the
    short term and in the long term and in the science, in order to
    get a better handle on climate change.
        I would like to address the memorandum which you mentioned
    from 2001, which I co-authored. At that time, the President was
    asked by a number of Senators to clarify what they saw as
    possibly contradictory statements during the campaign year.
    There was a written statement which indicated that the
    President supported mandatory controls on carbon dioxide from
    power plants. They felt that some verbal statements had been
    made during the campaign that conflicted with that.
        So they asked for clarification. The President, as he does
    in similar situations, asked for advice from his senior policy
    advisors. One of those advisors was the Director of the
    Domestic Policy Council at the time, John Bridgeland. He
    collected six of us together, I think they were all White House
    staff at the time. What he tasked us with doing was to lay out,
    first of all, what was the written statement from the campaign
    regarding carbon dioxide emissions from power plants and what
    would any reasonable person interpret from that written
    commitment.
        Then--this is the important part--assuming the President
    did not support mandatory controls on carbon dioxide emissions,
    which he subsequently clarified he did not, how should the
    written commitment be characterized, and then how should that
    be translated to the public. In fact, he confirmed, as he said
    later on that week, I believe, that he did not support
    mandatory carbon dioxide controls on power plants.
        He has subsequently supported, at least in the short term,
    strong voluntary measures. In fact, some of the programs on
    voluntary measures are at EPA, such as the Climate Leaders
    Program, which includes 62 large companies from Mack Truck to
    Miller Brewing Company that are making specific commitments to
    reducing greenhouse gases.
        It also includes an important component, which the G8
    noted, which is technology transfer to other countries to
    reduce greenhouse gas emissions. The Methane to Markets
    proposal that the President had in the last budget is a good
    example of that. There are longer term measures, such as the
    Hydrogen Fuel Initiative and Clean Coal Initiative.
        Then there is the science program. We are now spending
    about $2 billion on climate science. That is far more than any
    other country in the world. We are focusing that on the
    priority questions regarding climate science, to get a better
    sense of how much humans may be contributing to changes in
    climate, since that still is a difficult question to answer.
        Senator Jeffords. In fact, you have been handling
    environmental matters and regulations in the Administration for
    some time now. So you obviously have a wealth of policy
    experience to draw from. What do you consider to be the top
    five involuntary risks to the environmental health faced by the
    American public?
        Mr. Peacock. I'm sorry, Senator, the top five voluntary
    risks?
        Senator Jeffords. Involuntary risks----
        Mr. Peacock. Involuntary risks.
        Senator Jeffords [continuing]. To the environmental health
    faced by the American public.
        Mr. Peacock. That is a good question. I am trying to
    remember back. The Science Advisory Board, for instance,
    although it was some time ago, tried to rank the risks to the
    American public. I think they ranked the top 10 risks. One of
    them was indoor air pollution. That probably is still
    relatively high on the list, at least for those people who may
    be in a home where someone is smoking.
        I personally think, although it is not a health issue,
    invasive species, in an ecosystem, can cause dramatic changes,
    which can then possibly affect human health.
        What I would like to do is perhaps get back to you in
    writing on the other four, particularly after I refresh my
    memory from the Science Advisory Board studies including any
    that may have been done recently.
        [The response referred to follows:]

        The American public deserves to have a clean, safe, and healthy
    environment. Our nation faces numerous environmental challenges today.
    However, it is difficult to rank them by level of risk. Environmental
    challenges, such as particulate matter, ground-level ozone, and
    homeland security threats, among others, are all very important. I
    believe we must continue to use sound science to establish priorities
    and to improve the ability to measure our environmental progress.

        Senator Jeffords. I would appreciate that, thank you.
        Senator Inhofe. Thank you, Senator Jeffords.
        Before going to Senator Lautenberg, I just want to, for
    clarification purposes in this record, I want to get the G8
    language, which is identically the language that the President
    had in 2002.
        Senator Lautenberg.
        Senator Lautenberg. Thanks, Mr. Chairman.
        I just wanted to clear up, without any intonation or bias,
    Mr. Nakayama, did I understand that you never represented Grace
    directly? Is that what you said?
        Mr. Nakayama. Yes, Senator, I have never represented W.R.
    Grace.
        Senator Lautenberg. There was no implication in my
    question. I just wanted an understanding.
        Mr. Peacock, I don't know whether you took your lead from
    the Chairman of this committee, the distinguished Chairman,
    when you talked about most of the bad air comes from indoor
    pollution, indoor air pollution. I didn't know whether you were
    talking about the U.S. Senate or in general.
        [Laughter.]
        Senator Lautenberg. It is nice to see all three of you
    here. I speak for myself, I am concerned about the transition
    from previous positions and attitudes.
        I want to ask you, Ms. Bodine, I know you went to school in
    New Jersey, and we're very proud of that institution. It
    doesn't represent fully all of New Jersey, as you know, looking
    at it from the Princeton view. We love Princeton and we know
    that there are very smart people who go to school there.
        The Superfund program is of special importance to my State.
    We have, I won't say we have a monopoly, because we hear that
    beautiful States like Montana have Superfund problems, so it
    goes across the country. But we have 113 Superfund sites in
    that little State. Many of them are underfunded. I would ask
    you, are you familiar, do you know the amount of money that is
    being allocated to Superfund cleanup or directed toward
    Superfund cleanup?
        Ms. Bodine. Are you asking me what the President's request
    is for Superfund in 2006?
        Senator Lautenberg. No, not the President's request, the
    President's availability of funds for Superfund cleanup.
        Ms. Bodine. It would be the, well, I have that, it would
    have been the appropriations for 2005, in terms of response
    actions--I don't have the exact number. I apologize.
        Senator Lautenberg. OK. Is there enough there, to your
    knowledge, to effect a prompt cleanup of the sites that are
    listed on the NPL list?
        Ms. Bodine. I don't have an answer to your question,
    because I don't have the information. But we do know that not
    all the sites are cleaned up, so I guess the answer is simply,
    no, there isn't enough funding to clean up every single site.
    Although at each individual site, the funding needs depend on
    what stage the site is in the process. Whether or not a site
    can use money in a particular year depends on a number of
    factors, including status of enforcement against the PRPs,
    because, of course, EPA has an enforcement first policy. We
    want to spend PRP money before we spend trust fund money.
        Another factor is, of course, the stage of the remedy
    selection, to make sure that all the paper decisions have been
    made and all the risks have been evaluated.
        There are various studies by Resources for the Future and
    others about the billions of dollars it is going to take to
    complete action on Superfund sites nationwide. But for an
    individual year, I don't have that information.
        Senator Lautenberg. Have you had a chance to look at the
    pace of cleanup going back a few years, and currently?
        Ms. Bodine. Are you speaking about construction
    completions?
        Senator Lautenberg. Yes.
        Ms. Bodine. Construction completions, I have looked at
    that, yes. There are not as many construction completions in
    the last couple of years as there had been in the 1990's.
        Senator Lautenberg. Or underway?
        Ms. Bodine. Or underway, well, no, a lot of things are
    underway. A lot of them have reached the construction
    completion stage.
        Senator Lautenberg. It just depends on how far the progress
    has been.
        Ms. Bodine. Right. On that issue of construction
    completions, I have looked at the data on that. Concerns have
    been expressed that the Superfund program is very, responsive
    to what data is requested, what information is tracked. There
    has been a heavy emphasis on construction completions for a
    long time.
        Earlier, there was concern that this emphasis may have been
    to the detriment, perhaps, of prioritizing sites based on the
    risk. Because, if you look at the data on construction
    completions in the 1990's, you will see an enormous number of
    construction completions, but the actual amount of Federal
    dollars at each site is, in the vast majority of cases, less
    than $5 million. I know that again in the 1990's----
        Senator Lautenberg. I don't want to hold my place too long
    here. The Chairman has been about as patient as we find him.
        But New Jersey has a number of, 37 orphaned sites. I ask
    you this question, and that is, have you looked at the
    Superfund tax as it used to be and see what it did to
    accelerate and protect the areas where these sites exist, these
    Superfund sites? I just wonder what you think about it, should
    we look to raise money for these orphaned sites? We don't have
    enough to take care of them, do you think?
        Ms. Bodine. When Congress enacted the Superfund taxes, it
    enacted them to go into the Superfund Trust Fund, but it set up
    a mechanism where the trust fund that is part of the unified
    Federal budget which means that in terms of the funding, the
    money has to be appropriated out of the Trust Fund, it is not
    dedicated funding. The funding that is appropriated out of the
    trust fund has to compete within the overall budget and all the
    overall priorities.
        So if you look at the level of funding that was in the
    Trust Fund and you look at the appropriations, there isn't
    actually a relationship. The Trust Fund reached a height of
    about $3.8 billion in 1998. Even then, the amount of
    appropriations out of the Trust Fund was still flat.
        Senator Lautenberg. We'll have to discuss it at another
    moment. Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Lautenberg.
        Senator Baucus, and you will have an extra minute.
        Senator Baucus. That's fine, I appreciate that, Mr.
    Chairman.
        Mr. Nakayama, the question about your involvement with
    Kirkland, with Grace, what do you know about your firm's
    involvement with W.R. Grace?
        Mr. Nakayama. I know that my firm represents W.R. Grace in
    the bankruptcy matter. I understand that my firm represents
    some Grace executives in the criminal indictment matter. That's
    my understanding. I don't have personal knowledge, I just know
    that from reading press reports.
        Senator Baucus. That gets to my second question, and that
    is, your knowledge is based upon, only upon reading press
    reports? You have no internal knowledge, that is, no knowledge
    other than press reports?
        Mr. Nakayama. No knowledge other than press reports, that's
    correct.
        Senator Baucus. What's your firm's policy with respect to
    clients? In most law firms, when a partner represents a client,
    the entire firm represents the client, not just the lawyer, the
    entire firm. That's the basic rule of thumb in law firms today.
    Is that the Kirkland policy?
        Mr. Nakayama. I really don't know what the Kirkland policy
    is with respect to what our agreements are with respect to the
    client, if it is a representation on behalf of the whole firm
    or whether it is with respect to a portion of the firm.
        Senator Baucus. Well, what's the understanding within the
    firm, generally? For example, if you represent a client, is it
    an understanding or common knowledge that it is expected the
    firm also represents the client, in addition to you?
        Mr. Nakayama. Maybe I'm not understanding the question,
    Senator. I represent clients, they are my clients and I work
    for them and I am a member of Kirkland and Ellis, LLP.
        Senator Baucus. Right. But do you consult with other
    members of your firm, ever, about an issue when you are
    representing your clients?
        Mr. Nakayama. I will consult, typically, with people in my
    practice group, yes.
        Senator Baucus. Therefore, in a sense, at least that
    practice group itself, in addition to you, represents that
    client?
        Mr. Nakayama. In that sense, yes.
        Senator Baucus. Again the common rule is that the entire
    firm represents that client, in addition to the partner? Isn't
    that the understanding within your firm, too, the general rule?
    Different firms operate differently. Some the entire firm does,
    some have special practice groups that try and wall off
    different sections and so forth. I'm just trying to find out
    what the Kirkland practice is.
        Mr. Nakayama. I know it sounds a little bit unusual, but I
    just haven't looked at that, Senator. I don't know what our
    policy is with respect to when we represent a client. I have
    not looked at that policy, frankly.
        Senator Baucus. You don't know?
        Mr. Nakayama. No, I don't.
        Senator Baucus. Doesn't that sound a little unusual?
        Mr. Nakayama. It may. It's a fact. I just haven't looked at
    it. Our firm is a large firm with hundreds of attorneys. I have
    not looked in fact at every policy of our firm, frankly.
        Senator Baucus. Well, wouldn't that be a big question,
    because you may potentially be in a conflict of interest when
    you talk about a prospective client, if that firm, your firm,
    Kirkland, may be representing the other side in some other way?
    Maybe in a civil matter. Isn't that possible?
        Mr. Nakayama. It is possible, Senator, certainly.
        Senator Baucus. So you don't check to see?
        Mr. Nakayama. We do check.
        Senator Baucus. To see whether there is someone else, some
    other lawyer with a client in the firm, that's representing
    another client that may present a potential conflict or an
    appearance of a conflict?
        Mr. Nakayama. Yes, we do check. We have a computerized
    system, and if you want to represent a new client to the firm,
    you have to submit the new client to a data base and the data
    base checks to make sure that client is not adverse to any
    other client.
        Senator Baucus. So what happens if hypothetically a partner
    in your firm is thinking about representing Client X, and then
    submits the information in their computer system to see if
    there is a conflict, would you know about that submission?
        Mr. Nakayama. Would I know about that submission? I----
        Senator Baucus. Customarily would other partners in that
    firm know about that submission, that submission of that nature
    or request of that nature?
        Mr. Nakayama. Typically there would be a list, I imagine,
    that comes around periodically, you would look at if--it is
    incumbent upon the person introducing a new matter to contact
    any attorney that they thought there might be a conflict that
    is identified out of that system.
        Senator Baucus. So in this case, when the firm represented
    W.R. Grace, well, let me ask this question, do you know when
    Kirkland took on W.R. Grace as a client?
        Mr. Nakayama. No, I don't.
        Senator Baucus. When you read about this in the press, did
    you go back and check?
        Mr. Nakayama. No, I didn't go back and check, no.
        Senator Baucus. Wasn't it a concern to you?
        Mr. Nakayama. The firm represents hundreds of clients. I
    would be checking every day with respect to particular clients.
    There are news articles about our clients and our cases every
    day in the news.
        Senator Baucus. I'm sorry?
        Mr. Nakayama. There are articles and press reports about
    the clients, our clients and the firm every day. But I don't
    typically check to see when they became clients.
        Senator Baucus. What I'm getting at is once your name was,
    somebody approached you for this job, maybe did you go back and
    look at your client list and say, gee, maybe there's a conflict
    here, maybe there's a problem here, some enforcement actions
    before the EPA? Did you do that?
        Mr. Nakayama. I literally--I guess when you say did I check
    my client list?
        Senator Baucus. Did you go back and say, gee, I have some
    clients here that present a problem here, a conflict?
        Mr. Nakayama. I looked at my----
        Senator Baucus. I might have to recuse myself?
        Mr. Nakayama. Yes, I did look at my personal clients, the
    clients that I have done work for, to see if there was a
    problem.
        Senator Baucus. Did you look at Kirkland's clients?
        Mr. Nakayama. No.
        Senator Baucus. So in this case, if EPA begins an
    enforcement action, is involved in an enforcement with W.R.
    Grace, what's your position?
        Mr. Nakayama. I'm going to recuse myself from that matter.
        Senator Baucus. What about other cases where Kirkland has
    represented other clients that come before the EPA?
        Mr. Nakayama. What I've done, Senator, is I have submitted
    my financial disclosure form that explains and lists my
    clients. I have also submitted an ethics agreement to the
    Office of Government Ethics that was reviewed by the top ethics
    officer at the Agency, as well as the Office of Government
    Ethics. That has been reviewed and approved by the Office of
    Government Ethics.
        Senator Baucus. As a partner in the firm, do you have any
    input as to which clients the firm represents? Is that totally
    up to each partner?
        Mr. Nakayama. I have input with respect to clients I bring
    to the firm. Unless there is a conflict or unless there is some
    issue that directly involves my clients, I typically, no, do
    not get involved with respect to other partners and their
    clients.
        Senator Baucus. Do you share the income that the firm
    receives in charging W.R. Grace? As a partner, do you get some
    of that income?
        Mr. Nakayama. As an employee of Kirkland and Ellis----
        Senator Baucus. Sorry?
        Mr. Nakayama. As an employee of Kirkland and Ellis, as a
    partner, we all received income from the firm as a whole.
        Senator Baucus. Including income from W.R. Grace?
        Mr. Nakayama. Income from any client.
        Senator Baucus. So that goes back to my first question, in
    a sense, you're really all together as a company, as a team. So
    that is, you represent Grace, in a sense the whole firm does,
    and vice versa. That makes sense, because you said that you
    would recuse yourself in any action before W.R. Grace.
        I'm just curious, can you explain the difference between
    chrysotile and tremolite?
        Mr. Nakayama. I understand they are different types of
    asbestos.
        Senator Baucus. You heard me this morning talk about
    tremolite, that difference.
        Could you tell the committee a little bit about your views
    on why you praised the decision by the Fifth Circuit Court of
    Appeals to overturn the EPA's ban on asbestos?
        Mr. Nakayama. Yes, I certainly could. That was a law review
    article I wrote----
        Senator Baucus. Right, right.
        Mr. Nakayama [continuing]. I wrote that for the George
    Mason Independent Law Review back in I believe 1991. It was a
    decision of the Fifth Circuit called Corrosion Proof Fittings
    v. EPA. The Court held that a straight, across-the-board ban on
    asbestos, across all uses, couldn't be promulgated under the
    Toxic Substances Control Act, TSCA.
        Senator Inhofe. The Senator's time----
        Senator Baucus. I'm sorry, I'll be finished. Thank you,
    Chairman. I'll be finished. I appreciate the committee's
    indulgence here.
        I only ask the question because most industrialized nations
    have banned all uses of asbestos. This is a question, and I
    will pretty much end up here. What is your sense of your duty
    as a person, this is pretty abstract, bear with me for a while,
    on this earth? I believe that we must, all of us have a moral
    obligation to leave this place in at least as good a shape or
    perhaps better shape than we found it, from an environmental
    perspective. Because we are just here for a short while on this
    earth. We have kids, grandkids. What's your view about that?
        Mr. Nakayama. I agree with you, Senator. I have a daughter
    who was here this morning, and I think all of us want to leave
    the planet in better shape for our children. We are here for a
    short time.
        Senator Baucus. What can you say to this committee right
    now to assure us that you are going to vigorously enforce the
    laws as the chief enforcement person at EPA?
        Mr. Nakayama. Let me say this. I have approached every job
    I have ever held very seriously. I think you can see that from
    my record. I have a record of achievement, and I would approach
    this job just as seriously.
        If any company, individual, other Government Agency,
    believes that my nomination somehow lessens their
    responsibilities under the environmental laws and regulations
    of this country, they are sadly mistaken. They are making a
    serious mistake, and they make that mistake at their peril. I
    will vigorously enforce the environmental laws and regulations
    of this country. That is the job of the person who sits as the
    Assistant Administrator for the Office of Enforcement and
    Compliance Assurance.
        I look forward to working with you, if confirmed, you and
    your staff, the committee, as we look forward and work together
    to achieve that goal.
        Senator Baucus. Well, thank you, and I appreciate that.
    Thank you very much. Thank you, Chairman.
        Senator Inhofe. Thank you, Senator Baucus.
        Senator Boxer.
        Senator Boxer. Thank you so much, Mr. Chairman.
        I want to continue with the questions, Ms. Bodine, on the
    Superfund program. By the way, I share the concerns of my
    colleagues and everything they have discussed. I want them to
    know that I am with them on all of their concerns.
        Right now I am the ranking member on the Superfund
    Subcommittee. As I said, we have not had a hearing in a very
    long time. So I need to, instead of having hearings, since we
    don't seem to be able to do that, to get information from EPA.
        Now, from your web site, as I said this morning, we have a
    list of 103 Superfund sites in 33 States where human exposure
    is not under control. There are 1,200 Superfund sites, give or
    take. So there are 103 where people are getting exposed, right
    now, as we sit here.
        I need to know this, I need to see this list in the order
    of the most dangerous going down the list. They are all
    dangerous, everybody is getting exposures who lives near these
    sites, especially the children. But I need to have that list.
        So far, I do not have that comprehensive list. We do know
    on your web site you list the actual sites, you name them. But
    this is not in order of most dangerous.
        So I need to know that you will cooperate with me and we
    can get this. Now, Senator Jeffords and I have been trying to
    get this list for a very long time. Everything we get is just
    bits and pieces. We never get answers, clear, simple,
    straightforward answers, you know, these are the 10 most
    dangerous sites. I am asking you today if you will work with me
    before your confirmation vote to get this list from the EPA.
        Ms. Bodine. Thank you, Senator. I don't currently work at
    the EPA, so I don't control the documents they are producing.
    As you know, I currently work for the U.S. House of
    Representatives, for a committee that also has oversight over
    the Superfund program. So I must say that I have an
    understanding of the importance of congressional oversight and
    I have a bias in favor of sharing information.
        If I am confirmed, I am going to have to respect the
    concerns and certainly the protections that are necessary for
    my colleagues, including colleagues at the Office of
    Enforcement and Compliance Assistance with respect to things
    that are confidential, because of enforcement-sensitive
    information. Then if I am confirmed, I am also going to have to
    respect whatever protocols, I am not familiar with them, but
    whatever protocols have been set up by the executive branch to
    protect information that is pre-decisional.
        Let me say that I am told that those protocols have not
    changed from Administration to Administration, but again, I
    cannot tell you what they are, because I am not familiar with
    them.
        But within those parameters, yes, I want to work with you,
    I want to work with your staff on getting answers to your
    questions. The list that you are talking about from EPA's web
    site, I have not gone and looked at that exact list.
        Earlier I had seen a report that talked about sites that
    were not in control. I was concerned and I called the Agency
    myself and asked, well, what does this mean. I was told that
    that was, that the sites were sites where there was current or
    potential exposure. My concern was that there were any sites at
    all where there was actual ongoing exposure, which is the
    concern I hear you expressing. I was told that no, they are
    not, what we are talking about here is potential exposure.
        But I agree with you completely, Senator, that if there are
    sites out there with current, ongoing exposures, those are the
    sites that need to be a top priority, the top priority. Those
    sites need to be the ones that are addressed first. Again, when
    you are talking about actual, current exposure----
        Senator Boxer. I know my Chairman is not going to give me
    extra time----
        Senator Inhofe. If you would like to take both your rounds
    at once, you may do that.
        Senator Boxer. Thank you. Well, go ahead, then, I thought I
    only had 5 minutes. Go ahead.
        Ms. Bodine. Let me just repeat that in reaching that goal
    of making sure that the priority is based on risk and that
    first and foremost, if there is actual exposure at the site and
    people are currently exposed, that has to be at the top of the
    list.
        Senator Boxer. OK. We need to see that list. Where is there
    actual exposure?
        I was talking to my colleague, Senator Obama. He has a lot
    of sites there--how many do you have?
        Senator Obama. Eleven.
        Senator Boxer. He has 11 sites that are titled Superfund
    Sites Where Human Exposure is Not Under Control. Now, that is
    the English language and I understand it. I don't think it
    needs any--I don't think you and I should listen to the
    bureaucrats explain it away.
        It's clearly a problem. Because, sure, on a day that the
    wind doesn't blow, it's under control. But the next day the
    wind blows, it's not under control. So we have, and in my
    State, I have, I believe it is six sites where human exposure
    is not under control.
        So I appreciate your spirit and spunk on the point, and the
    fact that you're not at the EPA. But your caveat is a very big
    caveat. Because they are always going to give us reasons not to
    answer our questions.
        I would like to state for the record that our questions
    aren't answered. We get bits and pieces of information.
        Now, what I need to know from you and what I need to know
    from EPA, and you can't answer this question, but what I am
    going to try to get from EPA is what stage of cleanup are we in
    for each of these 103 sites. What sites, in particular, have
    that threat right now to the point where there is an immediate
    threat to children, let's say. How many children live within 4
    miles of these sites, and how much will it cost to clean up
    these sites.
        Now, you're right, the legal department always gives
    instruction, we can't say this, because if we say this then the
    people at the bottom of the list won't cleanup their site and
    all this stuff. The bottom line of that is, the Clinton
    administration gave us the list. We never made it public. We
    kept it here at the committee. The committee was able to see it
    and that's fine.
        I certainly don't agree with that. Because frankly, if
    you're on this list of 103, you'd better shape up, because
    we're going to get it cleaned up one way or the other. So this
    103 has to be cleaned up, out of the 1,200 sites.
        Now, we know in Omaha there has been actual exposure,
    because I showed you that. We know in Libby there is exposure.
    I can't get from EPA what do they need from us by way of
    funding, by way of personnel or whatever they need to get
    moving. So I don't want to go on very long, because I feel like
    you are in a situation where--you're right, you don't work for
    the EPA. You can't get this information for me.
        But I am very frustrated about this. I feel like we have
    gotten something from the EPA in connection with some of this
    information, but it's not complete. So all I get is incomplete
    information.
        So I just want to say for the record, Mr. Chairman, that
    just as I used the Johnson nomination to stop a terrible
    program from going forward, I intend to use the leverage I have
    here, and it is no disrespect for anyone, it is out of love and
    respect for the people who live at these sites, to say that I
    expect to get, in short order, a list of these sites, in the
    order of priority, with information as to what it will cost to
    clean them up, what it will cost to make them at least do what
    we call in our office triage, to protect the little kids--let's
    take another look at these kids, this little boy who got
    exposed to lead in Omaha, and now has irreversible brain damage
    from lead. This poor woman cannot get EPA to go test how much
    lead is left in her back yard.
        This isn't about charts and numbers. It's about people like
    this. This woman probably never asked her Federal Government to
    do a darned thing. I'm sure that she's a middle-class homeowner
    who gets up in the morning and loves her kids. Now look what
    happened here, and she can't get EPA to get a measure of the
    lead in her back yard.
        So what I will ask you to do is if you are talking to the
    folks over there, as you go through the nomination, to tell
    them that Senator Boxer is being tough on this situation. I
    would love a letter telling us that they went to this woman's
    back yard with their equipment and gave her a straight answer.
    Because now she has another child, right? The baby sister has
    lead poisoning now, too. She can't get a reading, EPA can't
    come out there and do that?
        This is very serious. We're not doing enough. I know a lot
    of it is caught up in the dollars. Look, I am the first one to
    admit, you can't do this on the cheap. I know a lot of people
    didn't like Superfund because yes, it did put in a revenue
    raise or tax or whatever you want to call it for polluters to
    pay. I know some people didn't like it because it was a general
    revenue fund. In other words, it didn't just go to the
    polluter, it went to the people who are in that business, who
    could potentially pollute.
        But it gave us the funding we needed. So anyway, that's my
    message to you. You are all good people, I'm proud that you are
    stepping up to the plate. But these are serious times. The
    Superfund program has been neglected. So I'm coming in with
    this request that we get this information, the sooner I get it,
    the happier we all are and we can move on. Thank you.
        Senator Jeffords. I would like to join in that request. I
    am agreeing with everything you stated.
        Senator Boxer. Thank you, Senator.
        Senator Jeffords. We have to see some action.
        Senator Boxer. Thank you, Senator. So now the request is
    coming again from the two of us. Thank you very much.
        Senator Inhofe. Senator Obama, if you would like to take
    both of your rounds at once, you may do so.

    OPENING STATEMENT OF HON. BARACK OBAMA, A U.S. SENATOR FROM THE
                           STATE OF ILLINOIS

        Senator Obama. Why don't I do that, Mr. Chairman, thank you
    very much.
        First of all, I think Senator Boxer, as usual, was
    extraordinarily eloquent about a problem that, as she
    mentioned, affects my State apparently fairly significantly. I
    have 11 of the sites that are mentioned here as, and again, all
    Senator Boxer and I can do is go by the title of this list:
    Superfund Sites Where Human Exposure is Not Under Control. Now,
    that may mean something different. But that's the title.
        So Ms. Bodine, I would strongly recommend that you forward
    this message to Mr. Johnson, make sure that he understand the
    urgency of the situation here.
        Let me make a larger point. That is, in my brief time here,
    I have only been in office 6 months, my experience already has
    been that EPA, under this Administration, is reticent to share
    information with Congress. I don't know why that is.
        But that appears to be the case. It just strikes me that in
    circumstances like this, we know that it's not going to be easy
    to solve the problem. I don't get a sense that this committee
    has gone out of its way to try to politicize these issues. All
    we try to do is get the problem solved, but we can't solve the
    problem in the blind.
        So I join Senator Boxer, I was a signatory to the letter
    making this request. I am expecting that we get some prompt
    responses.
        Now, let me shift to something that actually connects with
    that painful photograph that Senator Boxer just showed, and
    that's the issue of lead paint. I'm going to direct this to
    you, Mr. Peacock. I want to ask you about a subject that's of
    great importance to me, and that's the issue of lead poisoning
    in children.
        High blood lead levels, as you know, can have a devastating
    impact on children's health. They can lead to behavioral
    problems, learning disabilities, seizures. The EPA estimates
    that 890,000 children in this country suffer from elevated
    blood lead levels. In my home town of Chicago, there are 6,000
    children with high blood lead levels. That by the way is the
    highest in the country, as far as we know. It is a problem that
    disproportionately affects poor and minority children. Fully 22
    percent of African American children living in pre-1946 housing
    have lead poisoning, 22 percent. It's just an astonishing
    statistic.
        Now, in 1992, Congress mandated that EPA would promulgate
    regulations on contractors engaged in home remodeling and
    renovation. So that's 13 years ago. It was supposed to have
    been completed, these regulations were supposed to have been
    promulgated by October 1996, which would be 9 years ago.
        EPA's own analysis found that such a regulatory program
    could prevent 28,000 lead-related illnesses each year. That
    would, by the way, if it's not enough to see the pictures that
    Senator Boxer showed, and you're just thinking in terms of
    economic interests involved, we know that that would save us
    probably about $4 billion in economic benefits, both in terms
    of health care costs and additional costs for supporting
    children with lead poisoning.
        Now, 13 years after Congress first issued this mandate, the
    EPA still hasn't proposed any rules. And for the last several
    months, I have been trying to understand why. When this
    committee considered Administrator Johnson's nomination in
    April, I asked him when EPA was going to issue this rule. Mr.
    Johnson didn't answer my question, he said that EPA was working
    on a voluntary program.
        Of course, that's not what the law requires. The law
    doesn't say, the EPA may set up a voluntary program. The law
    says, the EPA shall promulgate regulations, mandatory
    regulations, around this issue. In May, Senator Boxer and
    myself wrote a follow-up letter to Mr. Johnson, asking him
    again, when will he issue the rules on lead. I've gotten no
    response on this letter.
        Last month, I included an amendment in the EPA
    appropriation that would prohibit the Agency from spending any
    funds to delay implementation of this requirement. You may be
    aware, that bill passed the Senate unanimously.
        So Mr. Peacock, like Ms. Bodine, this is always a difficult
    situation, you guys are just coming in, and I don't want to
    visit the sins of previous administrators on you. But my
    question is very simple, can you make a public commitment today
    that EPA is going to issue these lead rules by a date certain?
    Do you have any indication that that is taking place?
        Mr. Peacock. Thank you, Senator, that's a good question.
    Just let me make three points. You are right to point out this
    is not an issue I have been involved in in the past or
    currently. On the other hand, as a resident of the District of
    Columbia, I am interested in lead poisoning and what it can do
    to kids.
        The second point, not diminishing what work needs to be
    done, blood lead levels are another example of a success story
    so far in the United States, blood leads have dramatically
    decreased, particularly after lead was taken out of gasoline.
    It continues, according to some of the most recent information,
    it continues to decrease.
        So now what we find are particular areas, such as, Chicago,
    where you can spot particular populations which continue to
    have this problem and it persists, which I think is a lesson
    for making sure the resources and efforts that are put toward
    it are targeted. I don't doubt that, for instance, the
    renovation of old housing stock is a place to target such
    resources.
        I do not know intimately about this particular legal
    requirement or the requirement for issuing a regulation. What I
    do know is that EPA has been working with the renovation and
    repair industry. What I do not know is whether this would be
    their guidelines or whether it is, in fact, a regulation, as
    you desire, and the law as you say may require.
        But I believe it may be a regulation, and my understanding
    is there is a desire to get a proposed rule out by the end of
    this year. Can I guarantee that in my current position? No, I
    can't. But I can certainly find out more about that for you.
        Senator Obama. OK, well, I'm sympathetic to the fact that
    EPA regulations, that's a big manual. I assume you haven't
    memorized all of them.
        Mr. Peacock. I probably know more than my fair share.
        Senator Obama. Right. So let me just read to you Title 15,
    section 2682(c)(3) of the U.S. Code, just so that you're clear
    in terms of the statute that I'm referring to here.

        ``Within 4 years after October 28, 1992, the Administrator
    shall revise the regulations,'' and the title of the overall
    regulations is Lead-Based Paint Activity Training and
    Certification. ``The Administrator shall revise the regulations
    to apply to renovation or remodeling activities in target
    housing, public buildings constructed before 1978, and
    commercial buildings that create lead-based paint hazards.''

        So it's not ambiguous. You're exactly right, I think the
    original intention was, we've taken lead paint out of, or lead
    out of gasoline. That has reduced lead poisoning, sort of
    ambient lead poisoning that's everywhere. We now have a
    localized problem that was specifically what this statute was
    designed to address, was old housing stock that is renovated,
    and to make sure, in the same way, that if there is asbestos in
    housing that we are going to make sure that we're not exposing
    folks or workers to this poisoning, that we're going to do the
    same thing with respect to lead-based paint.
        So your rationales were right, that's why the statute was
    written. Thirteen years later, 13, I mean, I know the Federal
    Government moves slowly, but even with public notice provisions
    and all the hoops that have to be jumped through, 13 years is
    just an extraordinary amount of time to get a rule passed.
        So I appreciate your public commitment to find out what's
    going on. I guess what I'm looking for is a public commitment
    to follow the law. Now, if the Administration decides that this
    is not important, then they should have the law changed. Right?
        Mr. Peacock. Yes.
        Senator Obama. But the law is on the books, and has been
    ignored for 13 years. So can you tell me, can you give me any
    rationale as to why we wouldn't just go ahead and pass this
    law? What assurance can I get from you that once you're
    confirmed, I'm not getting a bunch of letters that are still
    ignored?
        Mr. Peacock. Let me commit to do this for you, Senator. My
    understanding, if I recall correctly, is that EPA is planning
    on having a proposed rule out by the end of this year. If
    that's incorrect, I will certainly let you know.
        Once again, and this is more intuitive, my understanding--
    is that this issue, in particular, affects many small
    businesses, because there are a lot of people out there who are
    not very large who do renovation and repair. That may be a
    contributor, not an excuse, but a contributor for why it has
    taken as long as it has. Once again, that may be a guess.
        Senator Obama. I am very sympathetic to the costs involved
    and that they shouldn't be borne by small businesses
    exclusively. I'm not interested in hoisting a localized tax,
    essentially, on individual contractors to solve what should be
    a broader obligation on the part of society.
        So if the EPA believes that, they are concerned about small
    contractors having to bear these costs, then we should figure
    that out. If we need appropriations to deal with this, then
    that's something I'm happy to address. But that's not an excuse
    for ignoring it.
        Mr. Peacock. No, and actually I wasn't alluding to costs as
    much as my own experience with the printing industry. You have
    to make sure whatever you promulgate can be enforced
    effectively. With a lot of small entities, that can be
    difficult. That's actually what I was alluding to, although I
    suppose costs could be----
        Senator Obama. Well, if it's an enforcement issue, then my
    assumption, there are a lot of smart people over at the EPA,
    you soon to be one of them. My assumption is that, for example,
    I just bought a house in Chicago. It's a 1920 house. I assume
    that it would not be difficult to have local governments and
    municipalities say that prior to your doing any renovations on
    the home, you have to do a quick test for lead-based paint, and
    if so, you have to show some sort of certificate that in fact
    it was done properly.
        Now, there may be some resistance on the part of local
    municipalities about that. I promise you I could convince the
    city of Chicago to go along with something like that. But there
    has to be that rule in place.
        Mr. Peacock. Let me get back to you with the straight
    story, and of course the bottom line is to make sure we
    continue to reduce these children's blood leads.
        Senator Obama. OK, thank you, Mr. Chairman. I appreciate
    your forbearance.
        Let me just close by saying this. Again, Senator Boxer
    alluded to this, I am not interested in holding any of your
    nominations hostage. But you should let, if you get any
    resistance from your future boss, the Administrator, about
    this, you should let him know that I am deeply concerned about
    this and willing to gum up the works a little bit until I get a
    clear response.
        Senator Inhofe. Thank you very much, Senator Obama.
        Let me go ahead, I guess we are each going to take another
    5 minutes. Just so I can get things clear in the record, I did
    want to clarify the statement that was made by Senator Jeffords
    concerning today's, the G8 communique. The language in the G8
    communique having to do with climate change is precisely,
    verbatim of the message or the position of the President in
    2002. I will read it.

        ``While uncertainties remain in our understanding of
    climate change, we know enough to act now to put ourselves on a
    path to slow and, as science justifies, stop and then reverse
    the growth of greenhouse gases.''

        Now, I would say further on this, we just went through this
    on the floor a matter of 2 or 3 weeks ago. I headed up the
    opposition to an amendment, it was debated for 2 days. I
    pointed out very clearly that the initial creator of the
    climate change and his hockey stick, Michael Mann from
    Virginia, had been totally repudiated, he has been refuted by
    the scientific community, and that virtually all science since
    1999 has stated that yes, there may be some climate change
    taking place.
        However, our climate today is not as high as it was in the
    medieval warming period, and that if it is warmer, there is no
    sound science to show that it is due to anthropogenic gases,
    man-made gases, methane or CO2. I think it's
    important to have that in the record.
        Second, for the record, I would like to suggest that we
    have the Office of Government Ethics, Mr. Nakayama, the reason
    we have the Office of Government Ethics is to determine if
    there could be a conflict of interest, and if so, we would have
    to deal with that during this process. I am going to read the
    letter instead of just inserting it for the record. This is
    dated June 29.

        ``In accordance with the Ethics in Government Act of 1978,
    I enclose a copy of the financial disclosure report filed by
    Granta Nakayama, who has been nominated by President Bush for
    the position of Assistant Administrator for Enforcement and
    Compliance Assurance, U.S. Environmental Protection Agency. We
    have reviewed the report and have also obtained advice from the
    Environmental Protection Agency concerning any possible
    conflicts in light of its functions and the nominee's proposed
    duties. Also enclosed is a letter dated June 10, 2005 from Mr.
    Nakayama to the Agency ethics official, outlining the steps
    that he will take to avoid conflicts of interest. Unless a
    specific date has been agreed to, the nominee must fully comply
    within 3 months of his confirmation date with the actions he
    agreed to take in his ethic agreement. Based thereon, we
    believe that Mr. Nakayama is in complete compliance with
    applicable laws and regulations governing conflicts of
    interest.''

        This is signed by the Acting Director of the Office of
    Governmental Ethics.
        I would ask you this question, Mr. Nakayama. You have said
    that you would comply within 3 months of the confirmation date
    with the actions agreed to. If you are confirmed, will you do
    that?
        Mr. Nakayama. Yes, Mr. Chairman, I would.
        Senator Inhofe. Mr. Peacock, we became involved in
    something I think was very significant, you may not even be
    aware of it. But we discovered that there are discretionary
    grants that emanate from the Environmental Protection Agency
    that are first of all, they are not based on sound science;
    second, many of these grants go to the same people; third, it
    took us, and me as Chairman of this committee, a month to find
    out who actually passed on these grants.
        We have set a reform in place. It seems to be working right
    now. But it's important to me that you, and I say all three of
    you, will work with us in this effort to continue this reform
    so that we can stop any kind of a discretionary grant that
    doesn't have the official sanction of the leadership of the
    EPA. Do you have any comments to make about that?
        Mr. Peacock. As you know, Senator, half of the EPA's budget
    grants, not all discretionary grants, but a significant portion
    are discretionary grants. This has been, I think for 10 years
    now, a material weakness noted by the Inspector General. As you
    mentioned, there is a 5-year plan that is being implemented to
    improve the transparency, accountability, and results in the
    grant programs. There is still a lot more work to be done
    there, and I want to work with you on it.
        Senator Inhofe. You're right, for 10 years they've been
    talking about it but we're going to do it.
        Mr. Peacock. Yes, I think we have started down that road.
        Senator Inhofe. I think also, and as I talk to my cities
    and towns who are, I was a mayor at one time, I know what
    unfunded mandates are, I know that is probably the worst thing
    faced by our mayors as well as our Governors. I've gone through
    these things and recognized that it is really a serious
    problem.
        Any time you have a grant that goes out, it's competing
    with a grant that might help a local community comply with
    water quality standards, drinking water or other things. So it
    goes beyond just the good government. It is something that
    drains those causes that we're supposed to be funding and
    taking care of.
        Senator Jeffords.
        Senator Jeffords. Yes, Mr. Chairman. For Ms. Bodine, the
    Superfund program is at a crossroads. The fund, which held $3.8
    billion in 1996 is essentially bankrupt.
        The 2005 budget is $574 million in constant dollars below
    levels from 1993. As a result of systematic funding shortfall,
    the rate of completed cleanups has plummeted and EPA is forced
    to shift money from ongoing projects to start the new cleanups.
        What will you do as Assistant Administrator to assure that
    the abandoned site on the National Priorities List like
    Elizabeth Mine, Eli Mine, and the Pikes Hill Copper Mine in
    Vermont get promised Federal funding for investigation and
    cleanup?
        Ms. Bodine. Thank you, Senator Jeffords. You can count on
    me to be a fierce advocate of the Superfund program within the
    Administration. As I discussed earlier with Senator Lautenberg,
    the Superfund program is funded through annual appropriations.
    That's true today, that's been true since its inception.
        But first, I would certainly within the Administration be
    an advocate. I agree with the comments that were made earlier
    about the importance of risk and focusing on risk reduction. As
    I noted earlier, there has in the past been a focus on
    construction completions, and we've seen where a lot of sites
    where the cost to the Agency was less than $5 million were
    pushed through the system. Again, I don't know the risks
    associated with them, but that may have been at the detriment
    of more risky sites.
        Once the Administration receives the appropriation from
    Congress, at whatever level it is, I also will say that I want
    to make sure that those dollars are used in the most effective
    and efficient way. I heard concern expressed about the
    Superfund program. I have concerns about it as well. I do think
    that there are opportunities here to improve the management of
    the program, to improve the incentives created by how we track
    things, what are we requiring regions to report on. You change
    behavior that way.
        Certainly making decisions based on risk as opposed to pure
    construction completions, those are all things that can be
    tracked. That will change behavior, both out in the regions and
    in terms of how sites are put forward.
        So I would like to say to the entire committee that I will
    look forward to working with everybody on improving management
    of the Superfund program. I do have a goal of getting Superfund
    sites cleaned up more quickly.
        Senator Jeffords. I appreciate those remarks. I can assure
    you you will have me right behind you to make sure that you get
    the proper wherewithal to make those decisions.
        Ms. Bodine. Thank you.
        Senator Jeffords. Mr. Peacock, why hasn't EPA been allowed
    by OMB to issue a proposed rule to implement the
    PM2.5 standard and the second phase of the ozone
    implementation rule?
        Mr. Peacock. Senator, I actually am not familiar with that
    rule. I can't even say that it's at OMB for review, although I
    have no reason to doubt that it is. I am involved on the budget
    side of OMB and tend not to get involved in the review of
    regulations unless they affect the budget. But I would be happy
    to get back to you to answer that question.
        [The response referred to follows:]

        I understand that EPA sent a draft of the proposed PM2.5
    Implementation Rule to OMB in October of last year. Since that time,
    however, senior EPA managers and OMB personnel have been focused on
    finalizing a number of regulatory packages that were subject to
    judicial deadlines or were a higher priority for the Agency. This
    includes significant actions such as the Clean Air Interstate Rule
    (CAIR) and the Best Available Technology (BART) rule (a key part of the
    regional haze program). These rules, especially CAIR, require important
    changes to the PM2.5 implementation rule, as well as to the
    draft final 8-hour ozone implementation rule. EPA managers have now
    placed the highest priority on completing the 8-Hour Ozone
    Implementation rule and the PM2.5 Implementation Rule. EPA
    and OIRA staff are now working through changes for both of these rules.

        Senator Jeffords. I would appreciate it if you would get
    back to me. I want to assure you, I'll do anything I can do to
    help you get what you need.
        Mr. Peacock. Great.
        Senator Jeffords. Mr. Nakayama, there is currently a debate
    going on within the Administration and within Congress
    concerning the extent to which the public should be able to
    obtain documents from EPA and other Federal agencies and
    outside parties produced during enforcement settlement
    negotiations. Do you think that additional legislation is
    needed to prevent the disclosure of documents or should there
    be more public disclosure of documents?
        Mr. Nakayama. Senator, I appreciate the question. That is
    an issue which I am personally not familiar with, I did not
    realize there was legislation or pending legislation that is
    being considered regarding the scope of documents that would be
    released.
        From an enforcement standpoint, and I don't want to sound
    too parochial, but your interests are maybe a little different
    if you are the enforcer, because you need to frankly be able to
    maintain confidentiality when you are negotiating a settlement
    agreement or moving forward. On the other hand, I can
    understand the interest in public disclosure.
        So it's a question that I will be glad to look into,
    Senator. I just don't have any opinion on that particular
    matter at this point.
        Senator Jeffords. I would appreciate it if you'd look into
    it and let me know what you have, and your views. I'll be there
    to help you if you need help.
        Mr. Nakayama. Thank you, Senator.
        Senator Inhofe. Thank you, Senator Jeffords.
        I thank all of you, and I do apologize to you and to your
    families who hung in there for you and I'm sorry, that seems to
    happen here occasionally in the U.S. Senate.
        As far as the statements that were made by two or three of
    the Senators here concerning documents, during the
    consideration of the Clear Skies legislation, people were
    requesting documents from this panel up here. We put a count on
    it, and we found that during the consideration of the Clean Air
    legislation, which did not pass, we received over 10,000 pages
    of documents that would fall into the categories of modeling
    information and responses to requests, which is over four times
    as many documents as we had received during the 1990 Clean Air
    Act legislation. So I think maybe we're just asking for maybe
    too much sometimes.
        So you might take that back to your new jobs. I would say
    to you, Ms. Bodine, we would like very much, after your
    successful effort on the floor today on the WRDA bill, to
    borrow you and use you on the floor of the Senate when we get
    our bill up which we have now passed out of our committee.
        [Laughter.]
        Senator Inhofe. We thank all of you. Is there one last
    thing anybody wants to say before we adjourn this meeting?
        Ms. Bodine. Thank you very much for the opportunity to
    appear before you.
        Mr. Peacock. Thank you, Mr. Chairman and Senators.
        Mr. Nakayama. Thank you, Mr. Chairman.
        Senator Inhofe. We look forward to working with you, and we
    are adjourned.
        [Whereupon, at 5:27 p.m., the committee was adjourned.]
        [Additional statements submitted for the record follow:]
    Statement of Marcus Peacock, Nominated for Deputy Administrator for the
                      U.S. Environmental Protection Agency
        Mr. Chairman, Senator Jeffords, and distinguished members of the
    Committee, I am honored to appear before you today as the President's
    nominee for the position of Deputy Administrator of the Environmental
    Protection Agency. I am indebted to the President for his trust and the
    privilege, if confirmed, of serving the public in this new capacity.
        There are three important things I would like you to know about me.
    They make up who I am and govern how I would conduct the job of Deputy
    Administrator if confirmed.
        First, I am a first generation American. My parents emigrated from
    war-torn England with three suitcases, a couple of trunks, and $200.
    Leaving their family and friends behind, they took a great risk because
    of the opportunity they saw in this country. This was an opportunity
    not just for themselves, but for their children and their children's
    children. It is the greatest gift I have ever received. I love this
    country and cherish the rights we enjoy--rights that give us the
    opportunity to realize our dreams. The first function of any government
    should be to protect and honor those rights.
        Second, I grew up in Minnesota. Minnesota gave me two things.
    First, one cannot grow up in that great State without appreciating the
    outdoors. Even when it is 20 degrees below zero. Indeed, my deep
    interest in the environment started at about age 15 at winter camp. I
    was working on laying out an orienteering course and found myself
    standing alone in the middle of a frozen lake while a fellow Boy Scout
    moved a marker along the shoreline. For some reason, at that moment,
    the serenity and peacefulness of that setting connected with me. My
    eyes opened up to a deeper wonder of nature. That day started a
    lifelong interest in the natural world. It drove me first to an
    interest in science and, ultimately, engineering. It is a fascination
    my wife and I share with our kids through hiking, camping, canoeing,
    and birding.
        Minnesota also gave me a strong sense of community. Public service
    is a high calling in Minnesota and pubic servants are expected to
    express the highest possible level of integrity. An adage etched into
    the old Minneapolis Convention Center struck home with me. It said,
    ``Participation in the rights of citizenship presumes participation in
    the duties of citizenship.'' My parents helped me appreciate the rights
    of citizenship in the United States. Minnesota helped me understand
    that those rights came with an obligation to the community and the
    Nation.
        Finally, I am an engineer. I have not practiced engineering as a
    profession for many years. Nonetheless, I like to think I practice
    engineering everyday. To me, the core of engineering is a disciplined
    process for problem solving. It requires one to be clear, open-minded,
    and analytical. And it focuses on getting results. As a manager and
    budget officer, I have seen many different types of problems.
    Engineering has given me the skills to break problems into manageable
    pieces and work with others to come up with solutions that get results.
    I think this is exactly the kind of skill one needs to be a Deputy
    Administrator.
        Should I be confirmed, I would bring to EPA a strong sense of
    public service, a deep appreciation for the environment, and an
    excellent set of problem solving and management skills.
        Under the President's leadership, our country has made great
    strides in cleaning up our air, water, and land in a way that allows
    our nation to continue to grow and prosper. The air my children breathe
    today is much cleaner than when I was a kid. Our food and drinking
    water supplies are safer. Our land is better protected.
        Building on this success, EPA Administrator Steve Johnson has laid
    out two key challenges for the Agency. First, we must make sure we are
    using the best available scientific information to make decisions.
    Second, we must formalize collaborative approaches to solving problems.
    On this second point, traditional methods of environmental protection
    do not work as well as in the past on our remaining challenges.
    Collaborating with States and other partners to solve remaining
    environmental problems needs to become more routine. I look forward to
    helping the Administrator tackle these challenges and make sure the
    air, water, and land my grandchildren breathe, drink, and live on are
    even cleaner than what we have today.
        Mr. Chairman, if confirmed I will do everything I can as Deputy
    Administrator to continue to serve the people of this great country,
    protecting their health and the health of our environment. Thank you
    very much and I would be happy to answer any questions.

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

           Responses by Marcus Peacock to Additional Questions from
                                Senator Jeffords
        Question 1. With regard to the findings in EPA's final June 2004
    study, Evaluation of Impacts to Underground Sources of Drinking Water
    by Hydraulic Fracturing of Coalbed Methane Reservoirs, that the use of
    diesel was a potential threat to underground sources of drinking water,
    do you think should EPA plan to develop national regulation standards
    for the underground injection control program to address this threat?
    If not, why not?
        Response. I am not familiar with this report or the details of this
    issue. If confirmed, I will look into the issue.

        Question 2. What action do you think EPA should take to address any
    endangerment to public health as a result of hydraulic fracturing
    practices?
        Response. As noted in the answer to the previous question, I am not
    familiar with this report or the details of EPA's activities in this
    area. If confirmed, I will look into it.

        Question 3. Do you know what monitoring procedures are in place to
    ensure that the three major companies conducting hydraulic fracturing
    that signed the MOA with EPA in December of 2003 are no longer using
    diesel as a part of their hydraulic fracturing process? Given that this
    MOA contains no enforcement provisions, what actions should taken
    against these companies should they continue to use diesel? Is the
    voluntary commitment to ban the use of diesel working and have these
    companies fully implemented the ban throughout their entire operations?
        Response. I have no knowledge of this MOA, but will look into it,
    if confirmed.

        Question 4. On March 10, 2005, Assistant Administrator Ben Grumbles
    testified before the House Government Reform Committee regarding lead
    levels in drinking water. Mr. Grumbles stated that EPA conducted a ten-
    state review of LCR implementation that involved review of over 450
    utilities. What actions do you think should be taken regarding these
    reviews in terms of reports and enforcement? If confirmed, would you
    provide the results of this data review, including any reports, to this
    committee?
        Response. It is my understanding that EPA is still working to
    analyze the data collected during its review of the ten state programs.
    I have been told that the Agency will release a report with a national
    summary of the findings and make it available to both the public and
    the committee.

        Question 5. At the March 2005 House hearing, Mr. Grumbles testified
    that data provided by the states indicates that 90th percentile levels
    for approximately 96 percent of utilities subject to the Lead and
    Copper Rule (LCR) are below the 15 ppb action level. Regarding the 4
    percent of utilities out of compliance with the LCR. If confirmed,
    would you provide to the committee a summary of the sampling results
    for each utility, the details of noncompliance, and specify whether an
    enforcement action is pending or has been taken?
        Response. If confirmed, I will work with the Office of Water and
    the States toward a goal of providing a summary of recent information
    to the committee.

        Question 6. While at OMB did you review the Administration's rule
    to exempt coal-fired power plants from the air toxic control
    requirements of section 112 of the Clean Air Act? If so, do you think
    it is in the best interest of the public's and environmental health to
    choose, as the Administration has, to allow hundreds of coal-fired
    power plants to avoid adopting maximum achievable control technology
    for decades?
        Response. OMB's Office of Information and Regulatory Affairs
    (OIRA), not my office, reviewed the section 112 revision notice.
    However, I am generally familiar with it.
        This rule accompanies the Clean Air Mercury Rule, which represents
    the first time the U.S., or any other country, has regulated mercury
    emissions from existing coal-fired power plants. Along with the Clean
    Air Interstate Rule, EPA's recent regulations will require one of the
    most significant investments in air pollution technology ever in the
    history of the Clean Air Act and represents an important part of this
    Administration's efforts to help protect public health and the
    environment without interfering with the steady flow of affordable
    energy for American consumers and business.

        Question 7. The Administration has routinely requested increased
    funds for the EPA's national diesel initiative and clean school bus
    campaign. Congress has not cooperated and the request and
    appropriations have gone down over time. What effect, if any, will the
    authorization bill included as part of the energy bill and the Clean
    Air Subcommittee hearing discussed on Tuesday have on the availability
    of funds?
        Response. Diesel retrofits in general are cost-effective control
    strategies for important pollution reductions. Both the national diesel
    initiative, including finalizing new emissions standards for locomotive
    and marine engines, and clean school bus program are priorities. The
    results associated with these programs will help to reduce particulate
    matter being emitted into the air and provide immediate public health
    benefits. There is substantial interest and support from industry,
    state and local governments, and public health and environmental
    organizations nationwide for these programs.
        Although the Administration supports efforts to reduce emissions
    from both new and existing diesel engines, we are concerned that the
    funding authorized for diesel retrofit programs in the energy bill goes
    well beyond the funding for such efforts called for in the President's
    2006 budget. Like similar authorizations that go well beyond the
    President's budget, we cannot support the authorization levels in this
    bill as they could create pressure to appropriate those levels in the
    future. However, we look forward to working with Congress to address
    the public health goals of the legislation consistent with the fiscal
    constraints that we all must confront.

        Question 8. Which rules and regulations that have you worked on
    over the last 10 years will have the greatest beneficial impact on
    public and environmental health?
        Response. I have worked on a limited number of rules and
    regulations over the last 10 years and very few of these addressed
    public or environmental health. This is because my purview tended to
    address rules and regulations that had an effect on the Federal budget.
    Nonetheless, of the limited number of rules and regulations I have
    worked on, one stands out as being potentially beneficial to
    environmental health. I worked on a U.S. Department of Agriculture rule
    clarifying the Federal share for the cost of eradicating or controlling
    invasive species. The rule helps State and local officials and other
    partners understand, upfront, what they are responsible for and what
    they can expect from the Federal Government. This reduces uncertainty
    and should speed up activities that will eradicate or control such
    species instead of waiting to negotiate cost-share on a case by case
    basis. Unfortunately, the execution of this rule has been blocked by
    appropriations language.

        Question 9. Have you, at any point in your work at OMB,
    participated in discussions or meetings regarding Clean Air Act
    rulemakings that were intentionally structured or designed to avoid the
    docketing requirements of the Clean Air Act?
        Response. No, I have not participated in discussions or meetings
    regarding Clean Air Act rulemakings that were intentionally structured
    or designed to avoid docketing requirements of the Clean Air Act.

        Question 10a. EPA stated in its May 12th Federal Register notice
    finalizing the Clean Air Interstate Rule (or CAIR) that the reductions
    in ground-level ozone achieved by CAIR could save 500 more people from
    premature death every year. Yet EPA did not include these benefits in
    its main analysis. Since then, three new studies were published in the
    July edition of the journal of Epidemiology which clearly provide
    strong scientific evidence that the link between ozone and premature
    mortality is real and significant and additive to the effects of fine
    particles.
        Will and should EPA now immediately include premature death
    reduction benefits in its primary estimates for future ozone rules? If
    not, what process do you believe EPA should have to go through before
    using studies published in peer-reviewed journals for rulemaking
    analyses?
        Response. I am not familiar with the current published literature
    on ozone mortality. If confirmed, I commit to taking a close look at
    this issue.

        Question 10b. If EPA decides not to include ozone mortality as part
    of the next ozone rule analysis, would you be willing to provide this
    Committee with an explanation of any such decision, including a
    description of what steps you feel you need to take before you can
    begin applying this peer-reviewed literature?
        Response. Again, I am not familiar with the details related to this
    issue but, if confirmed, I will look into it.

        Question 11. There have been a number of instances in recent
    regulatory analyses where EPA has used methods which have not been
    subject to outside peer review. A primary example of this was OMB's
    insistence that the Clear Skies benefit-cost analysis should include an
    estimate of benefits based on a ``Senior Death Discount'' which reduced
    the value EPA normally uses for avoided early death by more than half
    for senior citizens (from $6.3 million per life to $2.3 million for
    people over 70). Now, we know that this was OMB's idea and not EPA's
    and this ``Senior Death Discount'' was to be applied even though it had
    no scientific underpinning and peer review to support it.
        It seems reasonable that such proposals by OMB or other Federal
    agencies to use new methods or assumptions in EPA analyses should be
    conveyed in writing and made available to the public. Do you agree such
    new proposed methods should be subject to some kind of peer review so
    we can avoid debacles such as OMB's Senior Death Discount approach in
    the future?
        Response. I agree that important methods or assumptions included in
    its regulatory analyses should be subject to outside peer review
    consistent with the Office of Management and Budget's Peer Review
    Bulletin issued on December 16, 2004. Under this Bulletin, agencies are
    granted broad discretion to weigh the benefits and costs of using a
    particular peer review mechanism for a specific information product or
    components thereof.

        Question 12. According to an Inside EPA article of September 17,
    2004, EPA and OMB have been collaborating on an approach which polls a
    small number of outside experts and asks them to interpret the
    literature on fine particle health effects and provide an estimated
    dose-response function. This sounds to me like an odd kind of non-
    scientific process where a small number of selected people are being
    asked to do the work traditionally done by EPA scientists. Inside EPA
    article reports that the result of this OMB--EPA collaboration is a
    lowering of the estimated benefits of pollution control. The
    professional experts and scientists on the EPA staff were strongly
    critical of this project, which I also imagine is a very time-consuming
    and expensive effort. Aren't there enough health effects experts
    already on the government payroll in EPA who have already interpreted
    the particulate matter health effects literature, and haven't these EPA
    experts' interpretations already been subject to outside peer review by
    the Science Advisory Board and the National Academy of Sciences?
        Response. I am not familiar with the expert elicitation approach
    mentioned, nor any of the details associated with the estimating the
    benefits of pollution control. If confirmed, I plan to take a close
    look at this issue and will make any changes necessary.

        Question 13. If you answered yes to the previous question, why is
    EPA spending taxpayer dollars at OMB's direction on this additional
    outside work for a health endpoint that EPA can already quantify using
    peer-reviewed methods, while a wide range of other human health and
    ecological effects are left unquantified for lack of adequate research
    investment? These unquantified effects include those from dry and wet
    deposition of mercury and mercury contamination in fish, the effects of
    atmospheric nitrogen deposition in watersheds and estuaries like the
    Chesapeake Bay which EPA so far has failed to include in its analyses
    of the benefits of NOx control, and the lack of any method for
    calculating the benefits of improved visibility in cities and
    residential areas where most of us live.
        Response. Again, I am not familiar with the expert elicitation
    approach mentioned or why it is being pursued, but if confirmed, I will
    take as close a look as necessary.

        Question 14. How much is this outside expert survey project,
    mentioned in question No. 13, costing the taxpayers compared to how
    much EPA has been investing in research to address human health and
    ecological effects currently left out of your analyses?
        Response. Although I am not familiar with this case in particular,
    I understand that EPA's Office of Air and Radiation and the Office of
    Research and Development, as well as other EPA offices have made
    significant investments in characterizing, quantifying, and valuing the
    benefits of improving our environment, including the effects of the
    deposition of nitrogen from the air, runoff and other sources on our
    estuaries. This particular project undoubtedly constitutes only a small
    portion of this research effort.

        Question 15. Do you agree that using scientifically rigorous
    surveys can help establish data needed to analyze the effects of EPA
    programs? Are you willing to provide this Committee with information
    regarding any survey work EPA has initiated which is being held up by
    OMB under its Paperwork Reduction Act authority? And if you find there
    is a backlog of scientific survey work being held up by OMB, what steps
    will you take to ensure scientific work on data collection can proceed
    on a timely basis?
        Response. I agree that scientifically rigorous surveys can help
    inform both Agency research and policymaking efforts. If confirmed, I
    commit to looking into the status of any Information Collection
    Requests, and will work to make sure such requests are reviewed as
    expeditiously as possible.

        Question 16. I'm sure you are familiar with OMB's annual Reports to
    Congress on the benefits and costs of Federal regulation, originally
    nicknamed the Stevens Report then the Thompson Reports. To their
    credit, in recent years OMB has made the comments submitted on its
    draft reports available to the public, an admirable example of
    transparency and accountability. However, the OMB website where these
    comments are published shows that EPA last submitted comments on the
    2002 report. Reading EPA's comments on the 2002 report, it is clear
    that the Agency had problems with many aspects of OMB's report and with
    OMB's preferred analytical practices pertaining to matters such as
    discounting future health benefits, using quality of life adjustments
    to reduce estimated benefits of mortality reductions, and other issues.
    I find it very odd that since 2002 EPA has been completely silent,
    submitting no comments on the record for the last 3 years of OMB
    reports. Will you provide this Committee with copies of any comments
    EPA has prepared on drafts of the Thompson Reports for the last 3
    years, including this year, with an explanation for why any such
    comments were not made public and addressed by OMB in the final
    versions of their reports?
        Response. OMB's Report to Congress on the costs and benefits of
    Federal regulation, known as the ``Thompson'' report, is written and
    produced by the Office of Information and Regulatory Affairs (OIRA)
    within the Office of Management and Budget. I was not directly involved
    in the report, except to review drafts. My office at OMB was not
    involved in the review process with other agencies. If confirmed, I
    will find out the details of the process that was used with respect to
    EPA, review the comments that were submitted by EPA and assess how OMB
    responded to EPA's comments.

        Question 17. You have been called the `father of OMB's Program
    Assessment Rating Tool,' designed to evaluate program performance.
    Please explain how this tool works with respect to preventative
    programs, such as most of the public health statutes that EPA
    administers? In other words, how do you quantify cancers avoided or
    hazardous waste not spilled?
        Response. A number of EPA programs with activities focused on
    prevention have been evaluated successfully by the Program Assessment
    Rating Tool (PART). These include programs with prevention, deterrence,
    compliance assistance, and research components. OMB recognized that not
    all programs are alike, and thus there are seven different PART
    instruments: Direct Federal, Competitive Grant, Block/Formula Grant,
    Regulatory Based, Research and Development, Capital Assets, and
    Credit--the first five of which have been used for EPA programs. The
    basic tool is the Direct Federal version. Each of the other versions
    adds a number of questions tailored to the specific implementation
    activities of that type of program. In addition, and has been the case
    with EPA, OMB and the agency have the flexibility to create a program-
    specific hybrid tool which pulls appropriate questions from more than
    one version of the tool.
        It is often challenging to link directly preventative activities
    with environmental or human health impacts--ambient conditions,
    exposure or body burden/uptake, or health or ecological status. In some
    cases, programs have employed ``logic models'' that link programmatic
    activities with the desired outcomes. Annual performance measures thus
    capture programmatic outputs or intermediate outcomes, such as
    compliance rates or the installation of pollution control equipment by
    the regulated community. These annual measures are then linked to long-
    term performance measures which measure the desired environmental or
    human health impacts. In some programs the preventative activities are
    a subset of the program's implementation activities. In these cases the
    program might have annual performance measures focused on programmatic
    activities or outputs, but all the program's activities would share the
    same long-term performance measures. Finally, in some cases it is
    possible to extrapolate from a representative sample the estimated
    impacts of programmatic activities on environmental or health impacts.

        Question 18. The free flow of information from EPA to the outside
    world is of critical importance. Recently, EPA settled a lawsuit with a
    group that had requested copies of employee surveys conducted by the
    agency in 1999, 2001, and 2003. The watchdog group had requested the
    information under the Freedom of Information Act and was basically
    stonewalled by the agency until a formal suit was filed. In addition,
    EPA is increasingly denying public interest groups fee waivers under
    FOIA. Not only were EPA's actions a waste of resources, they were
    against the law. What will you do to make sure that the Freedom of
    Information Act process is not politicized and that requests are timely
    and efficiently processed?
        Response. This Administration takes its obligations under the
    Freedom of Information Act seriously. I am not familiar with the case
    that is referenced in your question, but I commit to doing a thorough
    review of this process, including fee waivers, if confirmed.

        Question 19. The effects of management practices on employee morale
    is a critical area that will be under your purview at EPA. You have
    described the Deputy Administrator position as a sort of ``Chief
    Operating Officer.'' Should you be confirmed, are there certain steps
    you would take to monitor employee morale and ensure that it is going
    up rather than down?
        Response. In keeping with Administrator Johnson's commitment to
    transparency and collaboration, I view the effective stewardship of
    EPA's human resources as one of the most critical responsibilities of
    the Deputy Administrator. Working with the Administrator and with
    Agency leadership at all levels, I believe there are several ways to
    stay in touch with the EPA staff, helping ensure that staff understand
    how critical they are in achieving our mission and how much we value
    them as professionals and individuals. These steps include the
    following.
        Keeping in Touch with Staff Opinions.--The results recently
    reported from the Government-wide Federal Human Capital Survey (FHCS)
    once again confirms what is evident in the EPA workplace everyday. That
    is, EPA staff are strongly committed to the Agency's mission and
    understand their role in achieving that mission. Continued monitoring
    of employee perceptions of EPA, its leadership, its management, and the
    support staff receive in performing their duties will be an important
    step in making sure we are ahead of the curve in dealing with issues of
    morale and employee effectiveness.
        Taking an Active Role in Relationships with the Agency's Human
    Capital Constituencies.--EPA has a strong history of active interaction
    between senior leadership and human resources constituency groups
    across the Agency. EPA's unions are one of these key constituency
    groups and I intend to foster a relationship characterized by
    continuous dialog, union involvement, mutual respect, and honesty. I
    look forward to being actively involved in the work of EPA's Human
    Resources Council (HRC). An organization unique in Federal agencies,
    EPA's HRC is comprised of executive-level leaders whose role is to
    raise issues of significance to the effective management of the
    Agency's human resources and develop the analysis and advice that the
    Administrator needs to deal with those issues.
        Leading the Human Capital Change Effort at the Agency.--It is my
    understanding that EPA's human capital program is making progress in
    aligning its performance management, workforce planning, competency
    management, employee development, recruitment, and planning systems
    with the Agency's strategic plan and then measuring results.
        None of a Deputy Administrator's many areas of responsibility are
    more important than those in the human capital area. I look forward to
    working along side my new colleagues, just as has our Administrator, as
    part of an EPA team.

        Question 20. Given the fact that EPA dropped its voluntary program
    for lead poison prevention a short period after Administrator Johnson
    wrote to Senators Clinton and Obama that lead regulation was
    unnecessary and extolling the virtues of the voluntary approach, do you
    think that the Agency has realized, that at least for lead, voluntary
    programs are not a panacea to regulation? Do you think it would be a
    good idea to conduct a rigorous analysis of all of EPA's voluntary
    programs to make sure that they are achieving their environmental and
    health protection goals?
        Response. As I indicated at the hearing, it is my understanding
    that the Agency intends to propose a lead renovation and remodeling
    regulation by the end of the year.
        As I understand it, EPA is undertaking a review of their voluntary
    programs to more rigorously evaluate them. I believe the Agency's goal
    is to ensure that voluntary programs complement regulatory programs and
    promote innovative approaches for environmental protection.

        Question 21. On July 6, 2005 in Denmark, President Bush told
    reporters, ``Listen, I recognize the surface of the Earth is warmer and
    that an increase in greenhouse gases caused by humans is contributing
    to the problem.'' As you may know, the Administration's current
    voluntary approach to this problem is projected by the Energy
    Information Administration and every other economic forecasting entity
    to continue increasing U.S. greenhouse gas emissions for the
    foreseeable future, thereby continually contributing to and compounding
    the problem. You may also know that knowledgeable climatologists have
    projected that the U.S. and other major emitters have approximately 10-
    15 years to ``decarbonize'' our energy supply system or the next 100
    years of global warming will be unstoppable. Do you think it would be
    prudent for the U.S. to adopt an approach that would result in and
    guarantee that total emissions in the U.S. and the world began to
    decline in the next 10-15 years?
        Response. I agree with the President's statements on climate change
    and I believe that the broad portfolio of actions that this
    Administration is undertaking in this important area is an effective
    response. These activities include near-term voluntary programs to
    reduce current greenhouse gas emissions, many of which are implemented
    by EPA, coupled with substantial efforts on technology development that
    will make new, cleaner energy sources available, and the world's
    largest program in climate science to improve our understanding and
    enable effective responses. Through this program, we will help the
    world achieve the purpose of the recently concluded G8 Summit in
    Gleneagles, Scotland--namely, ``to put ourselves on a path to slow and,
    as the science justifies, stop and then reverse the growth of
    greenhouse gases.''

        Question 22. In my view, the Agency's budget and resources for
    hazardous air pollutants research, regulation development and
    prevention activities have been much lower than warranted by the
    statutory requirements in the Clean Air Act. As a result, the Agency
    has often been significantly behind schedule. EPA has also recently
    issued unauthorized MACT standards incorporating risk factors
    inappropriately (for example in the plywood/boiler MACT development)
    and is also unwisely contemplating, perhaps due to resource
    constraints, further unauthorized residual risk regulatory actions.
    Will you commit to reviewing the air toxics program budget and
    resources and advising this Committee of gaps in funding or resources
    that are needed so that the Agency can promulgate and enforce rules
    that comport with the statutory requirements of the Clean Air Act?
        Response. I am aware of the ongoing demands and the importance of
    the air toxics program. If confirmed, I will look into this issue and
    address any problems if warranted.

        Question 23. A new report, issued this week by the Government
    Accountability Office, serves as a wake up call on the need to
    modernize our chemical management laws. According to GAO, EPA has
    required testing for fewer than 200 of the 62,000 chemicals used in
    commerce since EPA began reviewing chemicals in 1979. Additionally, GAO
    found that EPA's reviews of new chemicals provide limited assurance
    that health and environmental risks are identified before the chemicals
    enter commerce. Finally, even when EPA has toxicity and exposure
    information on chemicals showing significant health risks, GAO found
    that the Agency has difficulty overcoming the legal hurdles needed to
    take action. The public health implications of this report were
    highlighted by another study issued this week, finding that babies in
    the U.S. are exposed to hundreds of synthetic chemicals, even before
    birth. TSCA has not been updated since 1976. If you are confirmed as
    Deputy Administrator, will you work with Congress to enhance TSCA to
    give EPA better tools to protect children from chemical exposure?
        Response. I am very committed to protecting the environment and the
    health of citizens--young and old--of this country by ensuring that
    needed information is available on the hazards of chemicals. If
    confirmed, I look forward to working with the Committee and others in
    Congress on this issue.
                                     ______

           Responses by Marcus Peacock to Additional Questions from
                               Senator Lautenberg
        Question 1. I'm sure you are familiar with the case of Phil Cooney,
    a non-scientist lawyer at the White House who altered science reports
    on climate change. Do you believe these kinds of alterations of science
    documents by the White House are appropriate?
        Response. The documents you reference relate to management of the
    Federal climate science program, and were reviewed following the same
    interagency review process that is used on other documents of this
    type. Approximately 15 Federal agencies were involved on the
    interagency review process which includes both scientists, policy
    specialists and senior managers.
        Phil Cooney was both a policy specialist and a senior manager
    involved in the development and conduct of our climate change policies
    and activities. As someone with expertise on issues relating to climate
    change and the environment, I believe his participation in the review
    was appropriate.

        Question 2. I am very concerned about a new plan that EPA is
    developing on ``risk assessment''. When you visited my office a few
    weeks ago you promised to get back to us with information on that plan.
    Since you haven't done so, could you tell me here what you have learned
    about it?
        Response. I have looked into the issues you raised, and my response
    indicates what I have learned about this issue.
        There are two major purposes of the proposed changes: (1) to
    identify and resolve major scientific issues early in the assessment
    development process and thereby facilitate high quality and timely
    completion of assessments; and (2) to increase transparency in the
    assessment development process and thereby assure full and open
    consideration and scientific review of relevant information.
        EPA is planning to hold a public workshop on the proposed new
    process to solicit comments, suggestions and concerns from the IRIS
    user community and stakeholders. The workshop will be announced in the
    Federal Register and on the IRIS web site.

        Question 3. From my observations this administration
    ``collaborates'' only when a state agrees with it. As just one example,
    during the ``Clear Skies'' debate many states, including New Jersey,
    fought for the ability to regulate facility emissions to meet Clear Air
    Act's health standards. The administration refused to listen. Is that
    the kind of collaboration we could expect if you are confirmed?
        Response. Collaborative problem solving is an environmental
    protection approach that I know current EPA Administrator Steve Johnson
    is committed to and is encouraging. EPA has a long history of helping
    multiple parties to work cooperatively with the Agency to find
    environmental solutions--in watersheds, in communities (e.g.,
    Brownfields), and for some ecosystems such as the Great Lakes and
    Chesapeake Bay. Together with strong regulatory and enforcement
    programs, collaborative approaches can be an effective tool for some
    types of environmental problems. I believe that EPA, under the
    leadership of Administrator Johnson, will continue to look for areas
    where collaborative approaches can achieve beneficial environmental
    results.
                                     ______

     Responses by Marcus Peacock to Additional Questions from Senator Boxer
        Question 1. Do you agree that the recommendations of the NAS on
    human pesticide testing, the Nuremberg Code and Declaration of Helsinki
    and the Common Rule--at a minimum--should be specifically incorporate
    in any EPA regulation on intentional human dosing studies with
    pesticides?
        Response. Yes, I think it is important for EPA to require
    investigators who intend to submit human clinical trial research to EPA
    meet high ethical standards.

        Question 2. EPA estimates that the funding shortfall for wastewater
    treatment and pollution prevention projects as of January 1, 2000 was
    $181 billion, and that this shortfall will grow to $388 billion over
    the next 20 years. Before you are confirmed, please describe for me the
    steps that you will take to address harms to public health and
    environmental quality-including fish consumption advisories, closed
    beaches and degraded aquatic and wildlife habitat--that will result
    from a lack of sufficient funding in later fiscal years?
        Response. In 2002, EPA issued The Clean Water and Drinking Water
    Infrastructure Gap Analysis. The analysis estimated the funding gap
    between projected infrastructure spending needs and current spending
    for the water industry. EPA undertook the analysis to develop a solid
    basis for understanding the magnitude of the funding gaps potentially
    facing wastewater systems.
        As a country, we have made remarkable progress over the years in
    protecting and restoring our waters and wetlands. We have much left to
    do. EPA is committed to meeting the challenge and to accelerating the
    pace. To support sustainable wastewater infrastructure, EPA continues
    to provide annual capitalization grants to the Clean Water State
    Revolving Funds (CWSRF). The CWSRF has been one of the most successful
    and cost-effective infrastructure financing programs in the Federal
    Government's history. The Agency has provided, through fiscal year
    2004, nearly $23 billion to capitalize the CWSRF, nearly triple the
    authorization level of $8.4 billion. This Federal investment, when
    combined with State contributions and other funding sources, has
    allowed the CWSRF to support $48 billion in important water quality
    projects.
        In addition, EPA is addressing the funding gap by focusing on the
    ``four pillars'' of sustainable water infrastructure. The four pillars
    that are essential for sustainable infrastructure are: better
    management, water efficiency, full-cost pricing, and watershed-based
    approaches. Better management means assuring that utility managers have
    the suite of tools they need. These tools include asset management,
    environmental management systems, cost-effective technologies, capacity
    building, and other approaches used by the most successful utilities.
        Another pillar in ensuring sustainable infrastructure is to
    encourage efficient use of water. Although EPA's focus is water
    quality, not water quantity, EPA increasingly finds that water quantity
    and quality issues are inextricably linked. EPA will continue to
    promote water efficiency through such efforts as a voluntary program to
    identify and promote water-efficient products.
        The third pillar is full-cost pricing of water supply and
    wastewater treatment. Pricing that seeks to recover all of the costs of
    building, operating, and maintaining a system is absolutely essential
    to achieving sustainability. Conservation rates and seasonal rates can
    further help reduce peak water demand, and valid concerns about equity
    can be addressed through ``lifeline rates'' for the poor.
        The final pillar in assuring sustainable water infrastructure is an
    important water program priority in itself. EPA is committed to working
    co-operatively on a watershed basis with our State, Tribal, and other
    partners to protect human health and restore water quality nationwide.
    About a decade ago, EPA embraced the watershed approach, focusing on
    multi-stakeholder and multi-program efforts within hydrologically
    defined boundaries, as a better way to address water quality problems.
    Today, we are increasingly managing water quality on a watershed basis.

        Question 3. On June 7, 2005, the NAS and the heads of ten other
    national scientific institutions stated that ``there is strong evidence
    that significant global warming is occurring,'' that ``[i]t is likely
    that most of the warming in recent decades can be attributed to human
    activities'' and that ``scientific understanding of climate change is
    now sufficiently clear to justify nations taking prompt action.''
    Before you are confirmed, please describe whether and how you will take
    specific steps to ensure we will reduce greenhouse gas emissions
    promptly and develop a U.S. policy recommendation consistent with the
    NAS document.
        Response. The President's approach to climate change is informed by
    the best available science, including the 2001 NAS report he requested
    on what is known and unknown about climate science. The Bush
    Administration recognizes that the surface of the Earth is warmer and
    that an increase in greenhouse gases caused by humans is contributing
    to the problem. However, significant uncertainties in climate science
    remain and the Administration is working aggressively to address them.
        The Administration's program first sets the U.S. on a path to slow
    the growth of greenhouse gas emissions, and--as the science justifies--
    to stop and then reverse that growth. The President has launched a
    broad portfolio of domestic and international initiatives to develop
    and delploy cleaner, and more efficient energy technologies through a
    broad range of programs, including voluntary, market-based, and
    mandatory measures. The President's climate change policies also
    promote technological innovation and reduce harmful air pollution in
    the U.S. and throughout the world while improving our energy security.
        I believe that these actions--which at EPA focus on voluntary
    programs like Energy STAR, Smartway Transport, Climate Leaders and the
    international Methane to Markets Partnership--are a strong and
    effective response to the challenge we face.

        Question 4a. On June 8, 2005, the New York Times reported that
    political officials in the Bush Administration edited scientific
    information in government reports on climate change to downplay the
    connection between greenhouse gas emissions, climate change and the
    adverse consequences of climate change. This is not the first time that
    those types of problems have arisen in the Bush Administration. This
    type of political interference with science is a violation of the core
    principles of scientific integrity and violates the public trust in our
    government to base its policies on accurate and independent
    information.
        Please describe for me whether you agree that politics should not
    be a factor in determining what scientific advice the EPA provides?
        Response. I want to assure you that this Administration emphasizes
    the importance of using sound, credible, peer-reviewed science to
    inform its policies and decisions. EPA follows rigorous peer-review
    standards for all of its scientific products to ensure the soundness
    and credibility of their results.
        The Bush Administration supports sound science and has made a
    strong commitment to climate change science. In 2002, the President
    established the U.S. Climate Change Science Program as part of a new
    cabinet-level management structure to oversee public investments in
    climate change science and technology. CCSP coordinates and integrates
    scientific research on global change and climate change sponsored by 13
    participating departments and agencies of the U.S. Government.
        In July 2003, CCSP published the Strategic Plan for the U.S.
    Climate Change Science Program. The Strategic Plan responds to the
    President's direction that climate change research activities be
    accelerated to provide the best scientific information to support
    public discussion and decisionmaking on climate-related issues. The
    Administration's commitment to sound science is exemplified by the
    rigorous public peer review to which it subjected earlier drafts of the
    CCSP Strategic Plan. A major public workshop was held in December 2002
    to review the draft, and the National Research Council was also
    commissioned to review the draft and final versions of the Plan. The
    NRC said the Plan ``articulates a guiding vision, is appropriately
    ambitious, and is broad in scope.'' Also, the Plan calls for the
    production of 21 Synthesis and Assessment Reports, focusing on some of
    the highest priority scientific questions being addressed by the CCSP.
    The 21 Reports will be produced through a FACA process, with rigorous
    peer review, to ensure their balance, credibility, and scientific
    soundness.

        Question 4b. Please describe the steps you will take to ensure that
    political appointees and industry representatives do not alter
    scientific information in government reports, memos and other documents
    on climate change and other matters before EPA?
        Response. As I noted above, EPA emphasizes the importance of sound,
    credible, peer-reviewed science in all of its programs. I also am
    committed to an open and transparent process in the development and in
    the review of EPA's scientific documents that are prepared to inform
    decisionmakers. Consistent with the Information Quality Act guidelines,
    comments EPA receives from stakeholders (e.g., the regulated community,
    environmental organizations, private citizens) are made publicly
    available as the scientific documents are developed for subsequent use
    in setting Agency policy or in developing regulations. I want to assure
    you that if confirmed as the Deputy Administrator of EPA, I will insist
    that only credible, peer-reviewed science be used in informing policy.

        Question 4c. Please describe for me the steps that you will take to
    protect scientists from being asked to violate their scientific
    integrity by altering or suppressing scientific data?
        Response. I will not ask any scientist at EPA or any other agency
    to violate their scientific integrity by altering or suppressing
    scientific data. Indeed I am eager to have the best and most credible
    science as we deliberate on what should be the appropriate policy. I
    also know that the scientific staff at EPA, as well as other agencies
    are incredibly committed to scientific integrity. They also know that
    as scientists, they have an important function to inform policymakers
    but the call as to the appropriate policy is the responsibility of the
    Agency's leadership.

        Question 5. Please work with EPA to ensure that the agency provides
    me with material including any written documents related to any
    assessment, before you are confirmed, which EPA has or is conducting of
    potential concerns by employee regarding influence from political or
    industrial interests?
        Response. I am not familiar with the material you mention in your
    question. If confirmed, I will look into the existence of this
    material.

        Question 6. Please work with EPA to provide me with EPA's new draft
    assessment for MTBE, before you are confirmed, which recent trade
    reports state concludes that MTBE is a ``likely'' carcinogen. Please
    include any comments supplied to the agency and a list of all
    individuals, government offices and other entities, including non-
    governmental entities, which have seen the document or have commented
    on the document.
        Response. It is my understanding that the draft MTBE assessment is
    still early in this process and has not received internal nor external
    scientific peer review and thus it is not ready to be publicly
    released.
                                     ______

     Responses by Marcus Peacock to Additional Questions from Senator Obama
        Question 1. Title 15, Section 2682(c)(3) of the U.S. Code requires
    EPA to promulgate regulations to reduce the risk of lead exposure
    during renovation and remodeling activities by October 28, 1996. By
    what date, will EPA issue these regulations?
        Response. As I understand it, the Agency will announce by the end
    of this year a comprehensive program, which will include a proposed
    regulation, as well as an extensive education and outreach campaign
    aimed at the renovation, repair, and painting industry and the
    consumer.

        Question 2. Following his nomination hearing in April, I asked
    Stephen Johnson when EPA would issue a proposed rule. He responded:
    ``[T]he Agency is developing an education and outreach campaign that
    will convey the benefits of the use of lead-safe work practices to
    minimize both workers' and homeowners' exposure to lead dust during
    renovation and remodeling. EPA is also targeting outreach efforts to
    expand consumer awareness. . . . EPA plans to launch this material by
    this fall and will evaluate the effectiveness of this effort and will
    determine what additional steps may be necessary, including
    regulation.'' Does EPA believe that such a voluntary approach satisfies
    the requirement of 15 U.S.C. Sec. 2682(c)(3)? If so, what is the basis
    for EPA's belief that a voluntary approach satisfies the requirement of
    15 U.S.C. Sec. 2682(c)(3)?
        Response. The Agency is not relying solely on a voluntary program
    based on education and outreach, rather it will be a component of a
    comprehensive program to ensure the use of lead-safe work practices by
    the renovation, repair and painting industry. This comprehensive
    program will include a regulation. In addition, the Agency intends to
    launch an extensive education and outreach campaign designed to assist
    the Agency in reaching this unique industry of small businesses and
    individuals. EPA will also target outreach efforts to expand consumer
    awareness, which is critical to creating demand for the use of lead-
    safe work practices. The Agency will work closely with all interested
    stakeholders in the coming months as we move toward announcement of
    this comprehensive lead safe work practices program.
        As the number of lead-poisoned children continues to decline, it is
    critical that the Agency focus its programs on the housing, the
    activities and the exposures to reach the children of concern. EPA is
    in the process of assessing the costs and benefits of approaches for
    controlling the risks from lead contaminated dust created by
    renovation, repair and painting activities in the target homes. EPA
    currently estimates that there are 1.3 million children living in homes
    where these types of renovation and repair activities take place every
    year.

        Question 3. An EPA study has projected significant benefits from a
    regulation mandating lead-safe renovation and remodeling practices. Has
    EPA conducted a study to evaluate the effectiveness of a voluntary
    approach?
        Response. The Agency is not relying solely on a voluntary program
    based on education and outreach, rather it will be a component of a
    comprehensive program to ensure the use of lead-safe work practices by
    the renovation, repair and painting industry. This comprehensive
    program will include a regulation. In addition, the Agency intends to
    launch an extensive education and outreach campaign designed to assist
    the Agency in reaching this unique industry of small businesses and
    individuals. EPA will also target outreach efforts to expand consumer
    awareness, which is critical to creating demand for the use of lead-
    safe work practices. The Agency will work closely with all interested
    stakeholders in the coming months as we move toward announcement of
    this comprehensive lead safe work practices program.
        As the number of lead-poisoned children continues to decline, it is
    critical that the Agency focus its programs on the housing, the
    activities and the exposures to reach the children of concern. EPA is
    in the process of assessing the costs and benefits of approaches for
    controlling the risks from lead contaminated dust created by
    renovation, repair and painting activities in the target homes. EPA
    currently estimates that there are 1.3 million children living in homes
    where these types of renovation and repair activities take place every
    year.

        Question 4. What, if any, scientific evidence does EPA have to
    indicate that a voluntary approach would protect as many children from
    lead poisoning as would a regulatory approach?
        Response. The Agency is not relying solely on a voluntary program
    based on education and outreach, rather it will be a component of a
    comprehensive program to ensure the use of lead-safe work practices by
    the renovation, repair and painting industry. This comprehensive
    program will include a regulation. In addition, the Agency intends to
    launch an extensive education and outreach campaign designed to assist
    the Agency in reaching this unique industry of small businesses and
    individuals. EPA will also target outreach efforts to expand consumer
    awareness, which is critical to creating demand for the use of lead-
    safe work practices. The Agency will work closely with all interested
    stakeholders in the coming months as we move toward announcement of
    this comprehensive lead safe work practices program.
        As the number of lead-poisoned children continues to decline, it is
    critical that the Agency focus its programs on the housing, the
    activities and the exposures to reach the children of concern. EPA is
    in the process of assessing the costs and benefits of approaches for
    controlling the risks from lead contaminated dust created by
    renovation, repair and painting activities in the target homes. EPA
    currently estimates that there are 1.3 million children living in homes
    where these types of renovation and repair activities take place every
    year.

        Question 5. What is the projected cost of EPA's voluntary approach
    to encourage contractors to use lead-safe work practices?
        Response. The Agency is not relying solely on a voluntary program
    based on education and outreach, rather it will be a component of a
    comprehensive program to ensure the use of lead-safe work practices by
    the renovation, repair and painting industry. This comprehensive
    program will include a regulation. In addition, the Agency intends to
    launch an extensive education and outreach campaign designed to assist
    the Agency in reaching this unique industry of small businesses and
    individuals. EPA will also target outreach efforts to expand consumer
    awareness, which is critical to creating demand for the use of lead-
    safe work practices. The Agency will work closely with all interested
    stakeholders in the coming months as we move toward announcement of
    this comprehensive lead safe work practices program.
        As the number of lead-poisoned children continues to decline, it is
    critical that the Agency focus its programs on the housing, the
    activities and the exposures to reach the children of concern. EPA is
    in the process of assessing the costs and benefits of approaches for
    controlling the risks from lead contaminated dust created by
    renovation, repair and painting activities in the target homes. EPA
    currently estimates that there are 1.3 million children living in homes
    where these types of renovation and repair activities take place every
    year.

        Question 6. At the July 14, 2005, hearing, you indicated your
    belief that the reason that regulations had not yet been promulgated is
    because of the difficulty in creating enforceable rules against small
    contractors. Why would a lead regulation that applies to small
    contractors be any different from countless other EPA regulations that
    apply to small businesses, such as dry cleaners?
        Response. The renovation, repair, and painting industry is
    comprised almost entirely of small businesses and individuals--roughly
    a quarter of a million businesses in the U.S. provide professional
    renovation, repair, and painting services, employing approximately 1.7
    million workers. EPA initially examined several regulatory approaches
    to dealing with the risks of lead-based paint in renovation, repair,
    and painting activities. The Agency's preliminary analysis indicated
    that the annual costs of these regulations could exceed $1 billion.
        These significant costs would be borne by small businesses,
    consumers, and households. This, combined with the challenges of
    enforcing against small businesses and individuals, led the Agency to
    investigate a range of options in an effort to identify an approach
    under the law that would not disproportionately burden America's small
    businesses. However, after careful consideration of a number of
    approaches, including a voluntary program, the Agency determined that a
    combination program that includes regulation, training, educating and
    outreach would provide the most effective approach to ensuring the use
    of lead-safe work practices by this industry. When the Agency issues a
    regulation that impacts small businesses and individuals, the Agency
    significantly increases its compliance assistance efforts, which will
    also be the case when this rule takes effect.
                                     ______

           Responses by Marcus Peacock to Additional Questions from
                               Senator Lieberman
        Question 1. I believe that in your years at OMB, you were a
    significant contributor to formulating the PART methodology for
    evaluating executive branch programs and offices.
        EPA's Acid Rain program was rated only ``moderately effective'' in
    the last PART scoring exercise. I assume you must also know that the
    acid rain program has been highly effective in achieving the emissions
    reductions required under the Clean Air Act, while doing so at far-
    below-predicted costs to industry and also at low cost to the EPA
    itself. According to OMB's Thompson Report, the program is producing
    over $70 billion in health benefits every year; these benefits are at
    least 40 times its costs. I assume that there are not all that many
    Federal programs that can claim achievements that are quite so high-
    leverage. Given that record, it is surprising that OMB rates the
    program as only ``moderately successful''. Since the results of the
    program are so well-documented, the rating itself raises questions
    about OMB's approach to rating programs by PART scores.
        Can you explain the discrepancy between the benefit and cost
    results for the acid rain program and the modest PART score the program
    received?
        Response. The PART is a questionnaire of approximately 30 questions
    that is used to determine if a Federal program is getting results and,
    if not, why not. The PART produces an overall rating for each program
    but it is most helpful in diagnosing strengths and weaknesses in a
    program and helping formulate specific recommendations that are
    expected to improve the program. In this way, it looks at a much
    broader range of program characteristics than just the current costs
    and benefits of the program. The expectation would be that
    implementation of the recommendations would result in a program that is
    more efficient than the status quo.
        In the case of the Acid Rain program the PART resulted in an
    overall rating of ``moderately effective.'' This is a relatively high
    rating. To date, no EPA program has achieved a higher rating.
    Relatively few programs governmentwide have achieved the highest rating
    of 'effective.'
        Despite a relatively high rating, the Acid Rain PART indicates the
    program could be improved if two recommendations are implemented: (1)
    The program should develop and track efficiency measures (which it
    currently does not track) and such measures should include the full
    cost of implementing the program, not just the Federal share, and (2)
    statutory requirements that limit the scope of the program, such as
    maximum emissions reduction targets and the exemption of certain
    facilities, should be removed. The completed PART for this program and
    all of the other EPA programs that have been recently evaluated can be
    found at http://www.whitehouse.gov/omb/budget/fy2006/pdf/ap--cd--rom/
    part.pdf
        I was the lead for the President's Budget and Performance
    Integration Initiative when the Program Assessment Rating Tool (PART)
    was created. I am very proud of my association with this effort. As a
    sign of its success, the PART is now being copied by State governments,
    such as Kentucky and California, and by other countries, such as Asia
    and Scandinavia. The PART is also a finalist for Harvard University's
    prestigious ``Innovations in American Government Award.'' The winners
    will be announced later this month.

        Question 2a. Transparency in the Regulatory Review Process.--
    Executive Order 12866, which this Administration has said governs its
    process for reviewing proposed and final regulations, requires OMB to
    comply with certain requirements to improve the transparency of the
    regulatory development process, such as disclosing relevant information
    regarding any communications with outside parties while a regulation is
    under review by OMB. These requirements are designed in part to ensure
    that the public knows whether people outside the government are sharing
    views with OMB about regulations as they are being reviewed, and to
    provide the public with information about the changes made to a rule as
    a result of the inter-agency review process.
        Increasingly, the Agency is providing OMB with ``informal'' copies
    of rulemaking packages--which, I gather, does not trigger the
    requirements of EO 12866, and making a ``formal'' submission to OMB
    only very late in the review process--sometimes only days before a rule
    is signed. I am concerned that this practice of receiving ``informal''
    rulemaking packages is resulting in either OMB or the Agency
    circumventing the transparency requirements of the Executive Order with
    the effect of creating a back door for certain stakeholders to
    influence the regulatory process without any public record of their
    involvement.
        Could you tell me why the Agency and OMB are relying so heavily on
    this ``informal'' process whether you will support a continuation of
    this practice if you are confirmed?
        Response. I have not participated in the ``significance''
    determinations under EO 12866. This activity is the responsibility of
    Office of Information and Regulatory Affairs. If I am confirmed, I
    would be happy to look more closely at this process.

        Question 2b. I have not reviewed the logs OMB is required to keep
    on review of regulatory actions. When OMB has a regulatory package that
    has been submitted ``informally'', do you know whether it logs the
    dates and names of individuals outside the government who are involved
    in any substantive communication with OMB about the regulation as it is
    required to do once a regulatory package is submitted formally?
        Response. I am not aware of what items OMB's Office of Information
    and Regulatory Affairs dockets. If I am confirmed, I would be happy to
    look more closely at this process.
        In a similar recognition of the importance of a transparent
    process, in Section 307(d) of the Clean Air Act, Congress required EPA
    to place in the docket all drafts of proposed and final rules (and
    accompanying documents) sent to OMB for interagency review and ``all
    written comments'' on those drafts by other agencies.

        Question 2c. On a regulatory package that has been sent to OMB for
    review, if someone from OIRA or another agency, rather than sending
    comments in writing to EPA, were to dictate changes to draft preamble
    or regulatory text to EPA staff with the understanding that EPA staff
    would incorporate these changes, it seems to me that would be a
    circumvention of these provisions rather than compliance with them. Do
    you agree?
        Response. I have not participated in implementing Section 307(d) of
    the Clean Air Act related to OMB review. As a result, I am not aware of
    what items are docketed.

        Question 2d. If so, will you direct EPA staff that, if they receive
    changes to text in a Clean Air Act rulemaking package orally rather
    than in writing, they are to write the comments down, identify who made
    the comments, and then ensure that they are placed in the docket at the
    appropriate time?
        Response. If confirmed, I will work with EPA staff and my
    colleagues at OMB to uphold the important transparency goals reflected
    in Section 307(d).
                                   __________
    Statement of Susan P. Bodine, Nominated for Assistant Administrator for
                the Office of Solid Waste and Emergency Response
        Mr. Chairman, Senator Jeffords and distinguished members of the
    Committee, thank you for the privilege of coming before you today as
    the nominee for the position of Assistant Administrator for the Office
    of Solid Waste and Emergency Response. I'm honored that President Bush,
    Administrator Johnson and this Committee are considering me for this
    position.
        I am proud to introduce my husband, David Bodine, and my 2 sons
    Christopher and Steven. I would also like to thank Chairman Duncan and
    my many colleagues for their support and friendship.
        I have worked on environmental issues for my entire 17-year
    professional career, first as a practicing attorney and than as a
    counsel to the Water Resources and Environment Subcommittee of the
    House Committee on Transportation and Infrastructure.
        In private practice, I learned the substance of our environmental
    laws. But, I also learned from experience that the best way to approach
    a cleanup problem was from a technical and engineering perspective. I
    found it most rewarding to work on cases where the parties were willing
    to get all the scientists in a room to work out the most cost-effective
    way of cleaning up hazardous waste or a Superfund site.
        I also found it very rewarding to work with clients to keep them in
    compliance with the law. This was challenging. Many environmental
    regulations, particularly RCRA regulations, are extremely complex.
        When I moved to the Hill to work on the staff of the House
    Transportation and Infrastructure Committee, I kept the same objectives
    and the same approach: focus on the outcome a clean environment. And,
    try to ensure that the laws that are established to achieve this
    outcome are clear, understandable, and workable.
        It is my experience that even when an issue is contentious or
    complex, if you start by identifying a goal it becomes much easier to
    find common ground. Once a common goal is established, reaching
    agreement becomes much more likely.
        As this Committee knows, this was the process used to develop the
    Small Business Liability Relief and Brownfields Revitalization Act,
    which became law in January 2002. To reach agreement on title I of that
    Act, environmental and business groups had to agree that liability
    against small business owners for municipal solid waste did not
    facilitate cleanups. To reach agreement on title II of that Act,
    municipal groups, developers and environmental groups all had to agree
    that stimulating brownfields redevelopment was an important goal, and
    that it was acceptable to revise Superfund liability to achieve that
    goal.
        This process also was used to develop the Great Lakes Legacy Act of
    2002. Both the Sierra Club Great Lakes Program and the Council of Great
    Lakes Industries had reached the conclusion that something had to be
    done to create incentives and leverage other programs to accelerate
    cleanup of the Great Lakes Areas of Concern. The result was that
    legislation.
        Similarly, in 2000, when Congress started work on beach monitoring
    issues, environmental groups and States had very different views about
    how to create beach water quality monitoring programs. By bringing
    environmental groups, States, and EPA together, Congress was able to
    formulate legislation that greatly improved beach water quality
    monitoring, without placing an unfunded mandate on States.
        EPA employed this approach when it developed its Superfund
    Administrative Reforms, beginning in 1995. These reforms were based on
    the goal of making Superfund cleanups more cost-effective and timely.
    To achieve this goal, the Agency reached a consensus with stakeholders
    that not every site had to be cleaned up to background levels. Taking
    future land use into account and focusing on principal threats has
    allowed EPA to help bring more sites back into productive use.
        If confirmed by the Senate, I would take the same consensus-
    building approach to my new duties at the Office of Solid Waste and
    Emergency Response. I know we share the goal of protecting the
    environment. I know we share the goal of seeing hazardous waste sites
    cleaned up more quickly. I know we share the goal of making
    environmental regulations clear and understandable.
        If confirmed by the Senate, I will work with you to on a bi-
    partisan basis to find sustainable solutions to achieve these goals.
    American citizens expect and deserve both a thriving economy and a
    clean, safe and secure environment.
        In particular, I am very excited about the opportunity to work with
    Administrator Johnson as a member of his team as we accelerate the pace
    of environmental protection; use environmental protection as a driving
    force of economic growth; promote a culture of environmental
    responsibility; and continue to ensure compliance of our nation's
    environmental laws. To meet this challenge, EPA must not only implement
    and enforce the laws enacted by Congress, it must be innovative, form
    partnerships, and leverage private investment.
        In closing, I look forward to any questions you or your colleagues
    may have. Thank you. I ask that my statement be placed in the record in
    its entirety.

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

           Responses by Susan P. Bodine to Additional Questions from
                                Senator Jeffords
        Question 1. One of the roles of Congress is to perform
    congressional oversight. Yet it is difficult to discuss whether human
    health is being protected or whether the Superfund program is getting
    the resources it needs to clean up abandoned toxic waste sites if EPA
    refuses to provide the site specific documents regarding cleanup status
    and remediation needs. In short, Congress needs information regarding
    the on-going remedial, removal and pipeline projects that are not
    sufficiently funded to date and the dollar shortfall, based on the
    requests of the EPA Regions. Will you work to ensure that EPA provides,
    before confirmation, all of the information that I requested with
    Senator Boxer in our October 20, 2004, letter regarding the impact of
    the Superfund's cleanup slowdown?
        Response. I have a great appreciation for the importance of
    congressional oversight work, and if confirmed will work with the
    Committee to facilitate access to Agency information. Agency staff has
    advised me that the questions in the October 2004 letter seem based on
    an assumption that EPA funding process involves separate Headquarters
    and Regional estimates of costs. All Superfund remedial action funding
    decisions are made in close coordination with EPA regional offices
    after a careful review of each project. EPA Headquarters and the
    regions continue to work together extensively throughout the year to
    balance the Superfund program's human health and environmental
    protection responsibilities with both individual site needs and overall
    national priorities. Through the collaborative process, EPA
    Headquarters Superfund program managers decide onsite and project
    funding levels that make the best use of the funds that they have. EPA
    staff advises me that the agency has piloted approaches for identifying
    ``out year'' costs for some large remedial projects, and that
    information will be provided to the Committee.

        Question 2. As a mature program, Superfund works fairly well at
    sites with potentially responsible parties capable of performing the
    cleanup. The heart of the Superfund program, however, is to ensure that
    communities plagued with abandoned toxic waste dumps are able to get
    Federal resources to address the contamination immediately and remove
    the toxic blight. Given the decreased resources available to the
    program, what will you do as Assistant Administrator to accelerate the
    cleanup of these abandoned sites?
        Response. I intend to ensure that, to the extent practicable,
    Federal funding is allocated based on risk. To use Federal funding more
    effectively, I will pursue a number of actions to improve the
    efficiency and effectiveness of Superfund remedies at these sites and
    to closely manage site specific costs. With regard to remedy
    effectiveness, I will ensure that the following measures are taken. I
    will work with the Regions to improve assessment of contamination at
    these sites. I will ensure third party reviews of remedies, using the
    Agency's Contaminated Sediments Technical Advisory Group to review
    contaminated sediment cleanups; the National Remedy Review Board to
    review all remedies expected to cost $25M or more; and Value
    Engineering reviews of remedy design and construction at complex sites.
        In addition, I will ensure that EPA recovers unspent funds from
    contracts, grants, cooperative agreements, interagency agreements and
    state superfund contracts and agreements. Since 2002 the Agency has
    recovered more than $550 million that has been used to fund remedial
    actions, removals, enforcement, pipeline, and management and support.
    Finally, I intend to ensure that opportunities are not overlooked to
    augment Federal dollars with private funding from volunteers who may be
    willing to expend private funds on the cleanup of sites that have
    redevelopment potential.

        Question 3. The hazardous waste program was designed to create a
    ``cradle to grave'' management system to prevent mismanagement of
    dangerous wastes. EPA has proposed a definitional change to allow these
    hazardous wastes to evade the Federal safeguards if they are intended
    to be recycled. Many states are concerned that without minimal
    controls, such as tracking and financial assurance requirements, these
    rules will create a new wave of toxic waste dumps. As Assistant
    Administrator, would you finalize a rule that would allow million of
    pounds of hazardous waste to escape regulation without adequate
    assurances to prevent mismanagement?
        Response. The Nation's cradle-to-grave hazardous waste management
    system provides critical important public health and environmental
    protection, and indeed it has fundamentally changed the way hazardous
    waste is managed in this country. As Assistant Administrator, I would
    not support regulatory approaches that would allow unsafe management of
    hazardous wastes under the guise of recycling. At the same time, I
    believe we should be supporting legitimate and safe recycling, and we
    should make sure EPA's regulatory programs don't provide unnecessary or
    unwarranted disincentives to the safe reuse of industrial materials.

        Question 4. In your written remarks, you state that you are excited
    about the opportunity to join Administrator Johnson to ``use
    environmental protection as a driving force of economic growth.'' Like
    most environmental statutes, Superfund and RCRA are public health laws,
    not public works laws. Will you assure us that, as OSWER Assistant
    Administrator, real estate value will not play a role in whether a
    toxic waste site gets cleanup funds?
        Response. I will not allow real estate values to interfere with
    health or environmental decisions.

        Question 5. The community of Yerington, Nevada, has been exposed to
    dust blowing off mine tailings from the Anaconda Mine site for many
    years. This dust may be contaminated with radionuclides and metals that
    could cause serious health problems for nearby residents. What are
    EPA's plans to reduce the dangers created by exposing residents to this
    dust? The public can still access the Anaconda Mine site, which
    contains numerous hazards. What are EPA's plans and specific date for
    securing and restricting access to the site? When does EPA plan to host
    a public meeting to discuss the status of the cleanup of the Anaconda
    mite site?
        Response. I am not familiar with all of the details surrounding the
    Anaconda Mine site. I am however, committed, to looking into this
    further if confirmed.

        Question 6. Despite the growth of voluntary curbside collection,
    the recycling rates of many consumer commodities, such as plastic,
    aluminum and glass, is near historic lows. Companies are finding it
    increasingly difficult to obtain the quantity and the quality of the
    recycled feedstock they need to meet production demand. EPA recently
    acknowledged that the Agency does not expect to meet the nationwide
    recycling goal of 35 percent by 2005. As the Assistant Administrator of
    the Office of Solid Waste and Emergency Response, what steps will you
    take to ensure that EPA plays a leadership role in rejuvenating
    recycling in America?
        Response. EPA staff advises me that data show that the national
    recycling rate for 2003 was close to 31 percent. While it is true that
    the rate of recycling has slowed, it continues to increase slightly
    each year. Many factors influence the recycling rate, including local
    and state funding for recycling programs, prices of commodities
    recycled, availability of markets, improvements in technology, consumer
    behavior, etc. I am committed to working with our state and local
    governments to improve and reinvigorate the recycling message and
    ethic.

        Question 7. In responding to questions from me and Senator
    Lautenberg on Superfund, you suggested that the significant slowdown in
    the number of sites annually for which construction has been completed
    is in part due to the Bush Administration's emphasis on other sites in
    the Superfund pipeline. However, the number of remedial action
    construction starts during the first 4 years of the Bush Administration
    has averaged 58 per year, down 41 percent from the prior 8 years of the
    Clinton Administration, which averaged 98 new construction starts
    annually. In short, this Administration is making substantially less
    progress in completing construction of Superfund remedies or in
    starting new remedy construction at sites waiting on the National
    Priorities List. If confirmed as the Assistant Administration of EPA's
    Office of Solid Waste and Emergency Response, what specific steps will
    you take to reverse this trend and ensure that sites at all stages of
    the Superfund process are expeditiously cleaned up?
        Response. In my response to Senator Lautenberg's question, I was
    referring to my concern that in the past, more emphasis was placed on
    construction completion, so that less expensive sites were cleaned up
    first. EPA data on construction completions between 1993 and 2001 and
    their costs supports this conclusion. During this time period,
    construction at 659 sites was completed. Of the completed sites, 511
    had EPA costs of less than $5 million, 262 sites had EPA costs of less
    than $1 million, and 63 sites had no remedial action. It is my
    understanding that the need to focus on large, complex sites is now
    consuming significant EPA funds. If confirmed, I intend to ensure that,
    to the extent practicable, EPA prioritizes available Federal funding
    based on risk to public health and the environment. At the sites where
    there are PRPs, I intend to work with EPA's enforcement program to
    ensure that these sites are cleanup expeditiously using PRP funds. To
    date, over $22.8 billion in PRP funds have been committed to clean up.

        Question 8. The Leaking Underground Storage Tank (UST) program
    regulates the installation, maintenance and remedial activities related
    to underground storage tanks. EPA estimates that there are more than
    660,000 active USTs, and 125,221 backlogged cleanups at leaking UST
    sites. Leaking USTs are a major threat to the quality of our nation's
    groundwater, including a significant source of contamination from
    methyl tertiary butyl ether (MTBE). Will you work with EPA to provide,
    prior to confirmation, the latest data, including analysis of such
    data, on the technologies and practices that are best able to prevent
    releases from underground storage tanks?
        Response. I understand that EPA is preparing analyses of tank
    system performance of various technologies and practices. Two reports
    are being finalized, and EPA is prepared to brief you on the findings.
                                     ______

    Responses by Susan P. Bodine to Additional Questions from Senator Boxer
        Question 1. Please work with EPA to provide me with any material
    that contains DoD statements informing EPA that the department does not
    intend to, or may not complete its cleanup obligations at the McClellan
    Air Force base Superfund site, including cleaning up contaminated
    groundwater?
        Response. It is my understanding that EPA has been in communication
    with the Air Force and that they are actively working together to meet
    their cleanup obligations. EPA staff reported that they have not
    located any documents in which the Air Force indicates that it does not
    intend to or may not meet its cleanup obligations. The issues currently
    under discussion are summarized in the Air Force's proposed plan and
    EPA's letter responding to the plan, both of which will be provided to
    the Committee.

        Question 2. Please work with EPA to provide me with material that
    describes the activities that EPA's will undertake to ensure that DoD
    completes its cleanup obligations at the McClellan Air Force base
    Superfund site?
        Response. Given the scope of the projects involved, the EPA OSWER
    staff has informed me that it will require at least 2 weeks to collect
    all the materials to fulfill your request. They plan to collect this
    information and provide it to you as soon as possible.

        Question 3a. EPA produced a proposed AAI rule that failed to meet
    the statutory criteria for determine whether an entity had in fact
    conducted AAI. Among other failings this proposed rule failed to ensure
    that: (1) a qualified environmental professional conducted the inquiry;
    (2) the inquiry included a visual inspection of the site; and (3) the
    investigations protected public health by substituting vague
    performance standards in lieu of the Brownfield law's established
    criteria and benchmarks.
        Please work with EPA to provide me with information that describes
    the status of the agency's rulemaking process?
        Response. EPA published a proposed rule that would establish
    Federal standards and practices for the conduct of all appropriate
    inquiries on August 26, 2004. A copy is attached. I have been informed
    that the Agency intends to publish a final rule within the next 6
    months.

        Question 3b. Please confirm whether you support and whether and how
    you will ensure that the final AAI rule is consistent with the criteria
    from the Brownfields law as described by the attached letter from
    Senators Jeffords and Boxer and Representatives Dingell, Solis and
    Pallone?
        Response. If I am confirmed prior to the publication of the final
    rule, I will ensure that it is consistent with statutory criteria.

        Question 4. The Nation's Brownfield law forbids EPA from providing
    financial assistance in the form of brownfield loans or grants to
    potentially responsible parties. Please work with EPA to provide me
    with information that describes any potentially responsible parties
    that received funds from the brownfield program?
        Response. For several years, EPA's annual appropriations act has
    made parties who purchase property prior to January 11, 2002, but who
    otherwise meet the definition of a prospective purchaser exempt from
    liability, eligible for grants even though they may technically qualify
    as a responsible party because of the purchase date.
        It is my understanding that panels review and screen applicants,
    based on specific information they provide in the application to ensure
    that no ineligible party receives funding. In the 2005 grant guidelines
    (and in all previous versions of these guidelines) since the passage of
    the Small Business Liability and Brownfields Revitalization Act of
    2002, an appendix attached to the guidelines lays out specifics
    regarding eligibility criteria.
        For community-wide or nonsite specific revolving loan fund grants,
    an additional screening occurs post-award, when sites are identified by
    the recipient, to ensure that no ineligible party receives grant funds.
                                     ______

           Responses by Susan P. Bodine to Additional Questions from
                               Senator Lautenberg
        Question 1. Last September the Wall Street Journal, in an article,
    ``Money Shortage Threatens Superfund,'' reported that the funding
    backlog for Superfund site clean-ups will be three-fourths of a billion
    dollars by next year. If current funding is adequate as you suggest--
    what was the Wall Street Journal referring to?
        Response. It was not my intention to say that current funding was
    adequate. There are still sites remaining to be cleaned up so I believe
    additional funding is warranted. In order to clean up these sites, EPA
    must continue with the ``enforcement first'' has led PRPs to commit
    over $22.8 billion in cleanup work through fiscal year 2004. If
    confirmed, I also intend to prioritize the use of Federal funds by
    addressing the highest risk sites first. For less contaminated sites,
    there may be opportunities to find private sector partners who are
    willing to voluntarily invest private funds in cleanup because of
    redevelopment opportunities.

        Question 2. Superfund can't be described just in terms of numbers--
    we are talking about people's lives, as we heard Sen. Baucus describe
    in referring to Libby, Montana. In 1997, you helped write H.R. 2727
    which would have weakened the cleanup standards at Superfund sites. Did
    you agree with those provisions? With 10 million kids living within a
    few miles of a Superfund site, do you now believe these standards
    should be weakened?
        Response. H.R. 2727 was introduced by the Chairman of the Water
    Resources and Environment Subcommittee, Rep. Sherwood Boehlert, on
    October 23, 1997. At that time I was a counsel to the subcommittee and
    I worked on Superfund issues. Title I of H.R. 2727 addressed remedy
    matters. This title did not weaken cleanup standards at Superfund
    sites. Rather, Chairman Boehlert's intent was to codify the remedy
    reforms that had been advanced by EPA as administrative reforms.
        Before introducing this legislation, Chairman Boehlert held
    hearings in the Subcommittee. On April 10, 1997, the EPA Acting
    Assistant Administrator for Solid Waste and Emergency Response, Timothy
    Fields, testified that, through its administrative reforms, EPA had
    achieved an approximately 20 percent cost reduction, on average, in the
    cost of cleaning up Superfund sites, while maintaining protection of
    human health and the environment. According to Mr. Fields, EPA achieved
    these cost reductions by using reasonable assumptions about current and
    future land use, by applying treatment primarily to hot spots (the
    highly mobile, highly toxic waste), and by using a combination of
    pumping and treating and natural attenuation for groundwater
    remediation. Mr. Fields also testified about cost reductions achieved
    by the National Remedy Review Board. Finally, Mr. Fields testified that
    it would be helpful for Congress to codify EPA's administrative remedy
    reforms. Subcommittee marked up H.R. 2727 on March 11, 1998, but did
    not reach consensus. The legislation was not taken up by the full
    Transportation and Infrastructure Committee.
        Chairman Boehlert continued to work on Superfund legislation and,
    in the following year, introduced another bill, H.R. 1300. With this
    legislation, Chairman Boehlert did achieve consensus within the
    Transportation and Infrastructure Committee, which ordered H.R. 1300
    reported by a vote of 69 to 2 on August 5, 1999. With respect to remedy
    selection, H.R. 1300 clarified the intent of H.R. 2727 by incorporating
    certain EPA guidance by reference, instead of attempting to restate the
    guidance. At this point in time, EPA has been operating under its
    remedy reforms for a number of years and they have not been challenged.
    Accordingly, it no longer appears that codification of EPA's
    administrative remedy reforms is necessary.

        Question 3. Placing technical decisions in the hands of scientists
    and engineers, such as how ``clean'' a Superfund site should be, is
    vital. These decisions must remain above politics. So, regarding EPA's
    recent internal discussions on risk assessment--would you support
    giving the regulated industry a bigger role in such technical
    decisions?
        Response. I strongly believe in using sound, credible, peer
    reviewed science to inform policies and decisions. In addition, I
    believe all stakeholders should be given the same opportunities to
    participate.

        Question 4. The Superfund program is of special importance to my
    State. We have 113 Superfund sites in New Jersey and many of them are
    underfunded. The GAO reports that program funding has fallen by 35
    percent in the last decade. The number of sites cleaned up has dropped
    dramatically and the Superfund Projects Manager in New Jersey tells me
    that sites take three-times longer to clean up than they used to
    because the funding just trickles in. As the administrator of the EPA's
    Superfund office, would you support the reinstatement of the Superfund
    tax, or some other funding source, to ensure that polluting industries
    help make up for these funding declines and in cleaning up the orphan
    sites?
        Response. I strongly support the ``polluter pays'' principle under
    the Superfund law. The success of the polluter pays principle is
    illustrated by the fact that historically 70 percent of Superfund sites
    are cleaned up by the parties responsible for hazardous waste, an
    average of $838 million per year to clean sites as mandated by EPA. A
    broader perspective shows that, over the history of the program, EPA
    has required responsible parties to spend more than $22.8 billion on
    cleaning up contaminated properties.
        EPA has always relied upon Congress to appropriate funds for the
    Agency to pay for cleanups at Superfund sites. Superfund program
    appropriations have remained relatively steady over the past 5 fiscal
    years at $1.3 billion to $1.5 billion. The fiscal year 2006 President's
    Budget Request continues to maintain steady funding for the program.
        I believe that the Agency is making significant progress in
    cleaning up Superfund sites. Unlike in previous years where smaller,
    less costly sites were targeted for cleanups, EPA is now addressing
    large and complex sites that present unique cleanup challenges.
    Cleaning up these sites requires a disproportionate share of Superfund
    money. As I understand it, the new projects that are not funded have
    been secured, often have had prior cleanup work and pose no immediate
    threat. I commit that, if confirmed, EPA will not put communities at
    risk and will continue to protect human health and the environment.

        Question 5. From my observations this administration
    ``collaborates'' only when a state agrees with it. As just one example,
    during the ``Clear Skies'' debate many states, including New Jersey,
    fought for the ability to regulate facility emissions to meet Clear Air
    Act's health standards. The administration refused to listen. Is that
    the kind of collaboration we could expect if you are confirmed?
        Response. Collaborative problem solving is an environmental
    protection approach that I know current EPA Administrator Steve Johnson
    is committed to and encourages. EPA has a long history of helping
    multiple parties to work cooperatively with the Agency to find
    environmental solutions--in watersheds, in communities (e.g.,
    Brownfields), in ecosystems such as the Great Lakes and Chesapeake Bay,
    and for some national issues. Together with strong regulatory and
    enforcement programs, collaborative approaches can be an effective tool
    for some types of environmental problems. I believe that EPA, under the
    leadership of Administrator Johnson, will continue to look for areas
    where collaborative approaches can achieve beneficial environmental
    results. My written testimony provides examples of some of the
    collaborative efforts I've been involved with during my tenure as a
    congressional Committee staffer. These are examples of the kinds of
    collaboration you can expect, if I am confirmed.
      Responses by Susan P. Bodine to Additional Questions from Senators
                          Boxer, Lautenberg, and Obama
        Question 1. Please work with EPA to provide us with a complete list
    of Superfund sites in order of current health hazards.
        Response. I understand the Agency has a list that identifies
    priorities for new remedial start actions, which is considered
    enforcement sensitive. It is my understanding that the Committee has
    requested this list under separate cover, and that arrangements are
    being made to provide the list to the Committee. I have been informed
    that the Agency does not have a listing of all sites in rank order of
    current health hazards. I understand the Agency is working to prepare
    the list of 103 sites where human exposure is not confirmed as under
    control, categorized by sites with actual current exposure, current
    potential exposure, and future potential exposure. If confirmed, I will
    ensure that this commitment is met.

        Question 2. Please indicate how many children live near these sites
    and how they may be at risk. Please also indicate any daycares,
    schools, playgrounds or other similar places that are near these sites.
        Response. EPA staff advised me that they do not have the specific
    information requested on a site-by-site basis. EPA does have site-by-
    site information available at http://www.epa.gov/superfund/sites/
    cursites/index.htm. An example of such site-by-site information is
    attached. It is my understanding that the type of information you
    requested is not routinely obtained, but is the type of information
    sometimes collected at the local level when it would help address site
    specific risks.

        Question 3. Please indicate what emergency or other short-term
    steps may of taking at each site to address the risk and the cost to
    take those actions.
        Response. It is my understanding that EPA does not maintain a
    national data base that accurately and readily translates the actions
    described in each site profile into cost calculations.

        Question 4. Please provide the cost to clean up all 103 sites where
    EPA has determined ``human exposure is not under control.''
        Response. I understand that EPA has committed to compiling this
    information for all sites on the list for which EPA has available cost
    information. If confirmed, I will ensure that this commitment is met.

        Question 5. Please work with EPA to ensure that EPA experts,
    including regional staff, are available and authorized to answer any of
    our questions relating to Superfund, including human health risks,
    cleanup costs and funding shortfalls.
        Response. If confirmed, I will be pleased to ensure that
    appropriate EPA staff experts within OSWER are available to you. I
    cannot, however, provide blank, pre-authorization for EPA staff to
    speak on behalf of EPA or to represent EPA positions.

        Question 6. Please insure that the information provided includes a
    priority list of sites, like that provided to Senator Boxer while chair
    of the Superfund Subcommittee.
        Response. Please see response to Question 1, above.

        Question 7. Please work with EPA to ensure that we receive complete
    and detailed responses for each question in the Oct. 2004 letter that
    Senator Jeffords and Senator Boxer sent to then-Administrator Leavitt
    on Superfund, with updated responses to the present.
        Response. I have a great appreciation for the importance of
    congressional oversight work, and if confirmed will work with the
    Committee to facilitate access to Agency information. Agency staff has
    advised me that the questions in the October 2004 letter seem based on
    an assumption that EPA funding process involves separate Headquarters
    and Regional estimates of costs. All Superfund remedial action funding
    decisions are made in close coordination with EPA regional offices
    after a careful review of each project. EPA Headquarters and the
    regions continue to work together extensively throughout the year to
    balance the Superfund program's human health and environmental
    protection responsibilities with both individual site needs and overall
    national priorities. Through the collaborative process, EPA
    Headquarters Superfund program managers decide onsite and project
    funding levels that make the best use of the funds that they have. EPA
    staff advises me that the agency has piloted approaches for identifying
    ``out year'' costs for some large remedial projects, and that
    information will be provided to the Committee.

        Question 8. Please work with EPA to provide us with detailed
    information to date on clean-up work and activities that will not be
    performed at sites that could use additional funding to initiate new
    projects or to expedite work at on-going projects on those sites.
    Please include all regional requests for funding?
        Response. EPA staff advises me that the Agency does not have
    separate Regional and Headquarters costs estimates for sites. Funding
    priorities are based on risk, but decisions at any point in time depend
    to a large degree on the readiness of the site for construction work.
    These decisions are made in close coordination with EPA regional
    offices after a careful review of each project. EPA Headquarters and
    the regions continue to work together extensively throughout the year
    to balance the Superfund program's human health and environmental
    protection responsibilities with both individual site needs and overall
    national priorities. Through the collaborative process, EPA
    Headquarters Superfund program managers decide onsite and project
    funding levels that make the best use of the funds that we have. Hence,
    the category ``could use additional funding'' has not been developed as
    a tool for program management. The agency has attempted some pilot
    approaches to provide longer range funding estimates, and I understand
    the Agency will provide this information to the Committee. If
    confirmed, I will ensure this commitment is met.

        Question 9. Please work with EPA to provide us with complete
    information to date on the on-going remedial projects that could use
    additional funding and the dollar shortfall for each project. Please
    provide all regional requests for funding.
        Response. Please see response to Question 8, above.

        Question 10. Please work with EPA to provide us with complete
    information to date on the removal projects that could use additional
    funding and the dollar shortfall for each project. Please provide all
    regional requests for funding.
        Response. EPA staff advises me that EPA does not allocate removal
    funds to the Regions site specifically so this information is not
    available. Each Region is given a portion of the total removal money
    each year based on the size of the Region and historical need. To
    prepare for potential shifting priorities or new/undiscovered risks, a
    portion of these funds is retained at Headquarters, and allocations are
    determined on a case-by-case basis by senior management.

        Question 11. Please work with EPA to provide us with complete
    information to date on the pipeline projects that could use additional
    funding and the dollar shortfall for each project. Please provide all
    regional requests for funding.
        Response. EPA staff advises me that EPA does not allocate pipeline
    funds to the Regions site specifically so this information is not
    available. Each Region is given a portion of the total appropriated
    pipeline money each year based on Regional workload and historical use,
    and they then determine how to allocate that money across projects.

        Question 12. Section 108(b) of the Comprehensive Environmental
    Response, Compensation and Liability Act required EPA to promulgate
    regulations-``not later than 5 years after December 11, 1980'', which
    required ``classes of facilities establish and maintain evidence of
    financial responsibility consistent with the degree and duration of
    risk associated with the production, transportation, treatment,
    storage, or disposal of hazardous substances.'' Please work with EPA to
    provide me with information that describes all activities that EPA has
    undertaken to meet this requirement to promulgate these regulations.
        Response. EPA staff advises me that although some work on this
    project occurred in the early 1980's, it was not pursued to completion,
    and the staff with whom I spoke are not certain of the details.
    Currently, the Office of Solid Waste and Emergency Response is
    analyzing information from CERCLIS and RCRA to identify the type and
    attributes of RCRA facilities that have had CERCLA funded expenditures.
    With this information, the Agency will review how to improve financial
    assurance, including the use of CERCLA 108(b) financial assurance
    authority. If confirmed, I plan to review the issue.
                                   __________
    Statement of Granta Y. Nakayama, Nominated for Assistant Administrator
                    for Enforcement and Compliance Assurance
        Mr. Chairman, Senator Jeffords, and distinguished members of this
    committee; it is an honor and pleasure to appear before you this
    morning as the nominee to be EPA's Assistant Administrator for the
    Office of Enforcement and Compliance Assurance. I am honored that
    President Bush and Administrator Johnson have invited me to join the
    Administration to improve public health and the environment in this
    great Nation. I am especially pleased to be joined today by my wife,
    Larrene.
        EPA has an important responsibility to protect the land, air, and
    water of our Nation. From the Agency's inception, compliance and
    enforcement has been an important cornerstone of EPA's programs to
    improve public health and the environment. Vigorous enforcement is a
    crucial tool that ensures the promise of our environmental statutes
    becomes an environmental reality. Administrator Johnson has expressed
    his commitment to a strong Federal enforcement program, and it is
    incumbent upon a nominee for this position to share that commitment.
        Just as Americans must be able to trust and rely on EPA to protect
    the land, air, and water, the Agency is committed to obtaining the
    support of citizens in communities throughout our country in protecting
    the environment. If confirmed, it will be my goal to work
    collaboratively to ensure that citizens can both more easily assist EPA
    in identifying potential environmental enforcement issues and can more
    easily receive assistance in complying with environmental regulations.
    The goal is to make a more ``user-friendly'' and efficient enforcement
    organization.
        To this end, my prior experiences have provided me with some unique
    preparation for this position. The Assistant Administrator for
    Enforcement and Compliance Assurance must have an understanding of
    environmental law. I am currently a partner at Kirkland and Ellis LLP
    in the environmental and product safety practice area. I joined the
    firm in 1994 after attending law school in the evening and graduating
    as the valedictorian. The first case I worked on as an attorney was an
    environmental enforcement matter brought by EPA's enforcement staff,
    and I have worked on similar matters ever since. Today, my practice
    includes advising clients on a daily basis regarding their
    responsibilities in complying with our nation's numerous environmental
    statutes. Since 1998, I have also served as an Adjunct Professor of Law
    at the George Mason University School of Law where I currently teach
    Environmental Regulation. Practicing and teaching environmental law has
    provided an appreciation of the challenges of understanding, complying
    with, and enforcing these complex statutes.
        Second, the nominee must be able to manage a large organization
    within the unique structure of the Federal Government. I started my
    career in the military, in the U.S. Navy. After being selected by ADM
    Rickover and serving for 5 years as an officer in the Navy Nuclear
    Propulsion Program, I then served for 8 years as a civilian manager
    reporting to ADM Rickover's successors. In that program, I oversaw the
    manufacture of the prototype reactor for the Seawolf submarine (SSN-
    21). Later, I was a manager with responsibility for welding, non-
    destructive testing, and quality assurance. During this formative
    period I observed first hand the high standards and dedication of the
    individuals who served in the Naval Nuclear Propulsion Program, and the
    results that could be achieved by a group of highly motivated Federal
    employees.
        Lastly, I have found that technical training and the ability to
    process technical information can provide additional insights into the
    practice of environmental law. My educational background, including a
    Bachelor of Science and Master of Science degrees from MIT in Nuclear
    Engineering, combined with my prior experience as a practicing nuclear
    engineer has provided a strong technical background. In my experience,
    a first-hand understanding of the technology and science at issue in
    the environmental area inevitably leads to a deeper and more realistic
    appreciation of the problems and challenges faced by both regulators
    and the regulated community.
        EPA is most fortunate to have a very dedicated, extremely capable
    staff in the enforcement and compliance assurance office. I have
    personally worked with many of them over the last decade and I have
    been uniformly impressed by their dedication and professionalism. They
    work extremely hard because they care about the environmental health of
    the Nation. As enforcers of the environmental laws, they must also
    adhere to the highest ethical standards. It is a group that any
    environmental attorney or engineer would be proud to join.
        If you should honor me by confirming my nomination, I look forward
    to working with the members and staff of this distinguished Committee,
    Administrator Johnson, and President Bush to make the environment
    better for all Americans. Thank you for the opportunity to appear
    before you today. I will be happy to answer any questions.

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            Response by Granta Nakayama to Additional Question from
                                Senator Jeffords
        Question. The actual number of individuals working in the
    enforcement and compliance assurance office has essentially remained
    flat over the last 5 years at about 3,444 employees. Do you think that
    if the office were larger, there would be more enforcement actions and
    hence a cleaner environment?
        Response. I have not yet had the opportunity to analyze the
    staffing needs of OECA, but intend to do so, if confirmed. I intend to
    examine the resources to ensure that OECA is directing them to achieve
    the best environmental results and, if additional resources are
    warranted, to advocate for those needs during the budget process.
                                     ______

    Responses by Granta Nakayama to Additional Questions from Senator Boxer
        Question 1a. The Fourth Circuit Court of Appeals ruled on June 15
    in United States v. Duke Energy Corp. that EPA cannot prohibit large
    annual increases in air emissions from power plants and other sources
    under New Source Review regulations, because NSR applies only to
    increases in hourly emission rates. The Fourth Circuit ruling was based
    on an interpretation of the statute that was apparently rejected by the
    D.C. Circuit Court of Appeals in a decision reached later that month in
    State of New York, et. al., v. USEPA. The Department of Justice would
    normally ask the Fourth Circuit for an ``en banc'' to review of its
    decision in Duke Power in light of the D.C. Circuit's ruling in New
    York v. EPA.
        Do you plan to recommend or do you believe that situation merits
    asking the Department of Justice to seek en banc review of the Duke
    Power decision by the Fourth Circuit?
        Response. I have not been involved in the deliberations within EPA
    on what steps the Agency should take in response to the Fourth Circuit
    decision in Duke Power. Therefore, I am not in a position to set forth
    a personal recommendation on that issue that would reflect
    consideration of all of the relevant factors.

        Question 1b. Please work with EPA to provide me with information,
    before you are confirmed, which describes who is ultimately responsible
    for deciding whether to seek such review?
        Response. The decision whether to seek en banc review of a ruling
    by the U.S. Court of Appeals normally rests with the Solicitor General
    of the United States, after consideration of recommendations from the
    affected agency or department, and staff within the Department of
    Justice.

        Question 1c. Please work with EPA to provide me with analysis,
    before you are confirmed, of how the D.C. Circuit's opinion affects
    information gathered by EPA on previous NSR violations and the status
    of potential NSR violations among various classes of industry?
        Response. Since the D.C. Circuit issued its decision in State of
    New York only very recently, I believe it will take some time for EPA
    to determine how the opinion affects information gathered by EPA on
    previous NSR violations and the status of potential NSR violations
    among various classes of industry. Therefore, I am not certain that the
    Agency will be in a position to complete such analysis in the relative
    short term. However, I can assure you these court decisions would not
    alter my view that NSR enforcement is an important tool in implementing
    the Clean Air Act.

        Question 2. EPA's enforcement policy requires the Agency to issue a
    notice of violation within sixty days of identifying a ``high priority
    violator'' under the Clean Air Act. The Environmental Integrity Project
    submitted a Freedom of Information Act request seeking notices of
    violation issued to 20 three power plants that EPA has identified as
    ``high priority violators.'' EPA has responded that it failed to issue
    any ``notice of violations,'' in clear violation of its own enforcement
    policies.
        Before you are confirmed, please provide me with a description of
    the specific actions that you will take to address the lack of ``notice
    of violations'', including whether you will immediately review the
    cases identified by the Environmental Integrity Project as required
    under the Agency's own policy.
        Response. Enforcement is an important tool in implementing the
    Clean Air Act. If confirmed, I intend to work with the Office of Civil
    Enforcement regarding enforcement to ensure that the best environmental
    results are achieved, taking into consideration available resources.
    Enforcement matters typically involve weighing the specific facts
    relevant to each individual case. As I have not been involved in the
    NSR enforcement efforts, I am not currently in a position to describe
    specific actions that I would take with respect to on-going NSR
    enforcement cases. Thus, while I am not familiar with the specific
    cases that the Environmental Integrity Project is referencing, I commit
    that I will thoroughly review all of these matters, if confirmed.

        Question 3. Please provide me with a list of all of the
    environmental enforcement cases, before you are confirmed, which you
    have worked on during your career, including the party that you
    represented and the outcome of the case. Please specify your capacity
    in each case (e.g. lead attorney, supporting attorney, expert . . . ).
        Response. Under the D.C. Rules of Professional Conduct, an attorney
    may not reveal confidential client information. Under Rule 1.6--
    Confidentiality of Information, ``a lawyer shall not knowingly: (1)
    Reveal a confidence or secret of the lawyer's client . . .'' A list of
    all of the environmental enforcement cases that I have worked on during
    my career, including the party that I represented and the outcome of
    the case, would reveal confidential client information. This
    confidential information includes the fact that I have worked on
    specific cases, as well as the identity of specific clients. Consistent
    with the D.C. Rules of Professional Conduct, I am unable to provide
    this list.
        However, if confirmed, in the event that I am confronted with a
    potential conflict of interest, I intend to consult with the Agency
    ethics officials to ensure compliance with all government ethics
    requirements.
                                     ______

     Outstanding Document and Information Requests to the EPA from Senator
                     James M. Jeffords, as of July 14, 2005
                         1. original request: may 2001
        The EPW Committee has repeatedly requested an ``apples-to-apples''
    comprehensive comparison of the various multi-pollutant legislation
    proposals and their allocation methods (including the Clean Power Act,
    the Clean Air Planning Act and the Clear Skies Act) using the same
    models and assumption and estimates of the net air quality and public
    health impacts of any elimination of existing Clean Air Act provision.
    These proposals should be compared to the final Clean Air Interstate
    Rule and the Clean Air Mercury Rule, as well as any other State or
    Federal programs and settlement agreements affecting or potentially
    affecting power plant pollution, as the base case.
                2. original request: december 2001 and july 2002
        An updated privilege log of the documents in EPA and DOE possession
    relating to the New Source Review program regulation changes including:

             (a) the resulting impacts of the rules on future emissions;
             (b) the impacts on EPA, State, or citizen NSR enforcement,
            including settled or pending cases, or cases that may have been
            ripe had the rules not been changed, or future enforcement
            authority;
             (c) the impacts on attainment or maintenance of the NAAQS for
            SIPS, FIPS, or tribal implementation purposes;
             (d) the legal consistency of inconsistency of the rules; and
             (e) the extent to which fewer sources may take permit limits
            to ``net out'' of NSR, and the related future emissions impact
            (provided only a qualitative estimate with no mechanism to
            detect impact).

        Additionally, EPA has not produced a quantitative analysis of the
    effects that the new and proposed NSR rules would have on the
    environment and public health, as was promised during both a July 16,
    2002, joint-EPW-Judiciary Committee Hearing and a September 3, 2002,
    HELP Committee Hearing, and as is required by Executive Order 12866.
                       3. original request: december 2001
        EPW members originally requested a log of documents to the proposed
    New Source Review rules on December 14, 2001. After EPA failed to
    deliver the log by the promised date of October 24, 2002, EPW
    resubmitted the request on December 20, 2002. A log was finally
    received on January 22, 2003--after the first set of rules was
    finalized. However, the log is only a partial collection of the
    documents that would be responsive to the request, it does not contain
    information pertaining to document content, and it ends on September
    30, 2002. EPW has requested a log that identifies document content
    pertaining to both sets of rules finalized in December 2002 and August
    2003, through the date of the Agency's response to this request, which
    covers all documents described in the original request. To date the
    Agency has not provided an updated privilege log of the documents in
    EPA and DOE possession relating to the New Source Review program and
    regulations.
                        4. original request: august 2001
        Senator Jeffords wrote to Administrator Whitman on August 10, 2001,
    with follow-up questions to a July 26, 2001, hearing, seeking a
    consolidated estimate of the public health and environmental benefits,
    including tons of pollution avoided, achieved through full
    implementation of all Clean Air Act Programs (including NSR, MACT, and
    PM2.5/Ozone) that the Administrator mentioned during the
    hearing would be potentially ``unnecessary'' under the Administration's
    Clear Skies Act. A good faith effort by EPA needs to be made to
    estimate the net air quality and public health impacts of the
    elimination of the Clean Air Act Provisions mentioned above as proposed
    in the Administration's Clear Skies Act, and needs to be reported to
    Congress.
                5. original request: february 2003 and july 2004
        In an EPW briefing in February of 2003, EPW Committee staff asked
    for the amount of methyl bromide currently in stockpiles in the United
    States. EPA replied that it would not fulfill the request because it
    considered this confidential business information. As stated by
    Committee staff in subsequent email correspondence and meetings, this
    assertion does not apply to congressional requests. Again, in a July
    22, 2004 letter to Administrator Leavitt, Senator Jeffords made a
    formal request that this information be provided. EPA's response was
    that it was barred from providing Congress with this information
    pending the court's decision in a related lawsuit. The Ranking Member
    of the Senate Environment and Public Works Committee does not recognize
    this as a sufficient reason for denying Members of Congress this
    information.
                       6. original request: july 22, 2004
        In a July 22, 2004 letter to Administrator Leavitt, Senator
    Jeffords made several inquiries that the Agency considers privileged
    under the Freedom of Information Act (FOIA). The Agency has not
    provided a legal rationale for its failure to respond to the request
    for information, nor has it directly addressed the question of
    congressional access to information.
           7. original request: october 20, 2004 and february 9, 2005
        In an October 20, 2004 letter, Senator Jeffords and Senator Boxer
    made an information request regarding Superfund sites receiving no
    funds in fiscal year 04 and sites receiving only partial funds in
    fiscal year 04. The Agency has not provided information about the
    remedial activities that were not
        conducted at the 34 ranked unfunded sites due to inadequate funds.
    Additionally, neither Senator received a response to their request for
    information about sites receiving only partial funds in fiscal year 04.
    During the February 9, 2005, EPA Budget Hearing, Senator Jeffords
    reiterated these requests, but has received no new information, let
    alone updated information for fiscal year 05.
                       8. original request: december 2004
        In December 2004, EPW staff requested by email that the reports and
    the drafts of those reports for the National Acid Precipitation
    Assessment Program required to be submitted to Congress for the years
    2000, 2002, and 2004, under section 1030) of the Clean Air Act. Senator
    Jeffords formally made this request to James Connaughton in followup
    questions to a February 2, 2005 hearing. Senator Clinton made this same
    request in April 2005 during the nomination hearing of Administrator
    Johnson. In Administrator Johnson's response, it was indicated that the
    requested documents would be made available in May or June. In a June
    24, 2005 letter, Senator Jeffords and five other senators reiterated
    the same request for these reports and drafts of the reports. On July
    13, 2005, the Office of Science and Technology Policy replied in a
    letter stating the report will be available by August 22, 2005.
                     9. original request: february 9, 2005
        Senator Jeffords is still awaiting responses to his questions for
    the record relating to the EPW Committee hearing of February 2, 2005,
    for James Connaughton, Chairman of CEQ. The questions were submitted on
    February 9, 2005, but the Senator has still not received any response.
                      10. original request: april 6, 2005
        In follow-up questions to the nomination hearing of Administrator
    Johnson, Senator Jeffords requested the status and the promulgation of
    the proposed implementation rules for the revised PM-2.5 and
    ozone (second phase) National Ambient Air Quality Standards (NAAQS).
    This request was initially made in 2004. The Agency has no working
    deadline or given any indication of when the rules will be proposed.

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