[Senate Hearing 109-1029]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 109-1029
 
 NOMINATIONS OF RICHARD CAPKA, JAMES B. GULLIFORD AND WILLIAM L. WEHRUM

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   ON

THE NOMINATIONS OF RICHARD CAPKA, TO BE ADMINISTRATOR, FEDERAL HIGHWAY 
  ADMINISTRATION; JAMES B. GULLIFORD, TO BE ASSISTANT ADMINISTRATOR, 
      OFFICE OF PREVENTION, PESTICIDES AND TOXIC SUBSTANCES, U.S. 
ENVIRONMENTAL PROTECTION AGENCY; AND WILLIAM L. WEHRUM, TO BE ASSISTANT 
    ADMINISTRATOR, OFFICE OF AIR AND RADIATION, U.S. ENVIRONMENTAL 
                           PROTECTION AGENCY

                               __________

                             APRIL 5, 2006

                               __________

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


      Available via the World Wide Web: http://www.access.gpo.gov/
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                               __________

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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED NINTH CONGRESS
                             SECOND SESSION

                  JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia             JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri        MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio            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

                             APRIL 5, 2006
                           OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana.........    14
Bond, Hon. Christopher S., U.S. Senator from the State of 
  Missouri.......................................................     7
Boxer, Hon. Barbara, U.S. Senator from the State of California...    11
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode 
  Island, prepared statement.....................................    48
Clinton, Hon. Hillary Rodham Clinton, U.S. Senator from the State 
  of New York....................................................    17
DeMint, Hon. Jim, U.S. Senator from the State of South Carolina..    10
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     1
Jeffords, Hon. James M., U.S. Senator from the State of Vermont..     4
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................     8
Lieberman, Hon. Joseph I., U.S. Senator from the State of 
  Connecticut, prepared statement................................    48
Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska......    12
Thune, Hon. John H., U.S. Senator from the State of South Dakota.    16
Voinovich, Hon. George V., U.S. Senator from the State of Ohio, 
  prepared statement.............................................    47
Warner, Hon. John W., U.S. Senator from the Commonwealth of 
  Virginia.......................................................     3

                               WITNESSES

Capka, Richard, nominated to be Administrator, Federal Highway 
  Administration.................................................    25
    Committee questionnaire......................................    59
    Prepared statement...........................................    49
    Responses to additional questions from:
        Senator Baucus...........................................    57
        Senator Boxer............................................    56
        Senator Inhofe...........................................    51
        Senator Lautenberg.......................................    58
        Senator Murkowski........................................    55
        Senator Voinovich........................................    54
Gulliford, James, B., nominated to be an Assistant Administrator, 
  U.S. Environmental Protection Agency...........................    32
    Committee questionnaire......................................    88
    Prepared statement...........................................    75
    Responses to additional questions from:
        Senator Bond.............................................    79
        Senator Boxer............................................    83
        Senator Inhofe...........................................    76
        Senator Jeffords.........................................    80
        Senator Lautenberg.......................................    83
        Senator Murkowski........................................    79
Wehrum, William, L., nominated to be an Assistant Administrator, 
  U.S. Environmental Protection Agency...........................    34
    Committee questionnaire......................................   141
    Prepared statement...........................................   105
    Responses to additional questions from:
        Senator Boxer............................................   133
        Senator Carper...........................................   130
        Senator Clinton..........................................   127
        Senator Inhofe...........................................   106
        Senator Jeffords.........................................   108
        Senator Lautenberg.......................................   132
        Senator Lieberman........................................   130
        Senator Murkowski........................................   129
        Senator Voinovich........................................   123

                          ADDITIONAL MATERIAL

Letters of support for nominee Richard Capka:
    American Association of State Highway and Transportation 
      Officials, John Horsley, executive director, March 17, 2006    22
    American Highway Users Alliance, Gregory M. Cohen, president 
      and CEO, March 17, 2006....................................    21
    American Road & Transportation Builders Association, T. Peter 
      Ruane, president and CEO, April 4, 2006....................    23
    American Trucking Associations, Bill Graves, president and 
      CEO, April 4, 2006.........................................    24
    The Associated General Contractors of America, Stephen E. 
      Sandherr, CEO, March 29, 2006..............................    20
Resolution, Associated General Contractors of America in support 
  of Richard Capka, March 21, 2006...............................    74


 NOMINATIONS OF RICHARD CAPKA, JAMES B. GULLIFORD AND WILLIAM L. WEHRUM

                              ----------                              


                        WEDNESDAY, APRIL 5, 2006

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:30 a.m. in room 
628, Dirksen Senate Office Building, Hon. James M. Inhofe 
(chairman of the committee) presiding.
    Present: Senators Inhofe, Warner, Bond, Voinovich, 
Murkowski, Thune, DeMint, Jeffords, Baucus, Boxer, Carper, 
Clinton, and Lautenberg.
    Senator Inhofe. The meeting will come to order.
    General you are seated in place, so you are in the right 
place. We will go ahead and start. We will have a pretty good 
participation this morning, I understand. Right now, there are 
staff of several of the Senators, but several are going to be 
coming by.

 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 vital positions within the 
Administration, including the head of the Federal Highway 
Administration and two Assistant Administrator positions for 
the EPA.
    It is my hope that we can move all these nominees quickly. 
I want to extend a welcome to all of you and the members of 
your families who are here today. I want each one of you to 
feel free to introduce any members of your family who are here.
    I also want to thank all of you for your willingness to 
serve our Nation. Anyone who has been through this before 
understands all too well that it is no small task of a nominee 
or a nominee's family to go through the confirmation process 
that you are facing.
    On the first panel, we have retired General Richard Capka, 
who has been nominated to be Administrator of the Federal 
Highway Administration. Rick Capka is a very good choice to 
head the FHWA. He is a career engineer, beginning at the Army 
Corps of Engineers after graduating from West Point. After 29 
years of military service to our country, he retired as a 
Brigadier General and then went over to the Massachusetts Toll 
Authority before being tapped to serve this country again as 
Deputy Administrator for the FHWA under Mary Peters, who did an 
excellent job as Administrator.
    I have talked to you about that before. Mary did an 
excellent job, and one of the things she was was responsive. As 
soon as something happened, she was there and you were there 
with her. So you know that, and that is one of the things we 
would look for in your service, too.
    Mary stepped down just prior to Hurricanes Katrina and 
Rita. General Capka and FHWA have received wide acclaim for 
their response to these disasters.
    On the second panel, we will have James Gulliford and 
William Wehrum, both of whom have been nominated to fill 
critical Assistant Administrator positions at the EPA. Mr. 
Gulliford has been nominated to head the EPA Office of 
Prevention, Pesticides and Toxic Substances.
    Since 2001, Mr. Gulliford has been based in Kansas City as 
EPA's Regional Administrator for Region VII. As Regional 
Administrator, Mr. Gulliford is the chief of all technical and 
administrative operations of the EPA in Region VII, which is 
comprised of Nebraska, Iowa, Kansas and Missouri.
    Region VII has a staff of over 550 and an annual budget of 
approximately $500 million. Prior to joining EPA, Mr. Gulliford 
was the director of Iowa's Department of Soil Conservation.
    Mr. Wehrum has been nominated to head the EPA Office of Air 
and Radiation. Mr. Wehrum is currently the Acting Assistant 
Administrator to this office. Prior to his assuming the acting 
role, he served the EPA as both Principal Deputy Assistant 
Administrator and Counsel to the Assistant Administrator of the 
Office of Air and Radiation.
    This committee has seen much of Mr. Wehrum lately as a 
witness representing the EPA three times in the past 6 months. 
He has answered numerous questions before the committee and 
over 70 follow-up questions from the committee's minority 
members alone. I believe that all of the nominees that we have 
had during this Administration, that Mr. Wehrum is the most 
familiar with this committee.
    Once again, I thank all of you for being here today.
    [The prepared statement of Senator Inhofe follows:]

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

    Good Morning. The purpose of today's hearing is to consider the 
President's nominees for three vital positions within the 
Administration, including the head of the Federal Highway 
Administration and two Assistant Administrator positions at EPA. It is 
my hope that we can move all of these nominees quickly. I want to 
extend a welcome to all of you and the members of your families who are 
here today. I also want to thank all of you for your willingness to 
serve our Nation. Anyone who has been through this before understands 
all too well that it is no small task of a nominee or a nominee's 
family to go through the confirmation process that you are facing.
    On the first panel, we have retired General Richard Capka, who has 
been nominated to be Administrator of the Federal Highway 
Administration. Rick Capka is a very good choice to head the FHWA. He 
is a career engineer, beginning at the Army Corps of Engineers after 
graduating from West Point. After 29 years of military service for our 
country, he retired as a Brigadier General. He then went over to the 
Massachusetts Toll Authority before being tapped to serve this country 
again as the Deputy Administrator of FHWA under Mary Peters--who did an 
excellent job as Administrator. Mary stepped down just prior to 
Hurricanes Katrina and Rita. General Capka and FHWA have received wide 
acclaim for their response to these disasters.
    On our second panel we will have James Gulliford and William 
Wehrum--both of whom have been nominated to fill critical Assistant 
Administrator positions at EPA.
    Mr. Gulliford has been nominated to head the EPA Office of 
Prevention, Pesticides and Toxic Substances. Since 2001, Mr. Gulliford 
has been based in Kansas City as EPA's Regional Administrator for 
Region 7. As Regional Administrator, Mr. Gulliford is the chief for all 
technical and administrative operations of the EPA in Region 7--which 
is comprised of Nebraska, Iowa, Kansas and Missouri. Region 7 has a 
staff of over 550 and an annual budget of approximately $500 million. 
Prior to joining EPA, Mr. Gulliford was the Director for Iowa's 
Department of Soil Conservation.
    Mr. Wehrum has been nominated to head the EPA Office of Air and 
Radiation. Mr. Wehrum is the current Acting Assistant Administrator to 
this office. Prior to him assuming the Acting role, he served the EPA 
as both Principal Deputy Assistant Administrator and Counsel to the 
Assistant Administrator in the Office of Air and Radiation. This 
committee has seen much of Mr. Wehrum lately as a witness representing 
EPA three times in the past 6 months. He has answered numerous 
questions before the committee and over 70 follow-up questions from the 
committee's Minority members alone. I believe that of all the nominees 
that we have had during this Administration, Mr. Wehrum is the most 
familiar to the committee.
    Once again, thank you all for being here today.

    Senator Inhofe. Do you want to go ahead and do his 
introduction?
    Senator Warner. If you wish to have other comments, 
Senator?
    Senator Inhofe. I think it might be better with the number 
of members we have if you go ahead with your introduction, 
Senator Warner, and then we will go ahead with our opening 
statements. It gives you some more time.

OPENING STATEMENT OF HON. JOHN W. WARNER, U.S. SENATOR FROM THE 
                    COMMONWEALTH OF VIRGINIA

    Senator Warner. Delighted, Mr. Chairman and members of the 
committee.
    You know, one of our great responsibilities is to find 
well-qualified individuals to serve in these public service 
positions. I commend the President of the United States for 
selecting Mr. Capka to be the Administrator of the Federal 
Highway Administration. I have had the opportunity to work with 
him.
    As Brigadier General, he spent 29 years in the U.S. Army 
Corps of Engineers serving across the world in positions 
managing infrastructure projects from water infrastructure, to 
road, flood response in California. He was awarded the 
Distinguished Service Medal, which is the highest-ranking medal 
given to officers for their distinguished service in non-
combatant situations mostly, and the Defense Superior Service 
medal and the Legion of Merit.
    After his retirement from active duty, General Capka served 
as CEO and executive director of the Massachusetts Turnpike 
Authority, where he directed and turned around Boston's famous 
$14.5 billion Big Dig project. His experience as a practicing 
engineer and in managing infrastructure across the world, 
coupled with his experience managing highway projects, he has 
served this country well.
    He has been the Deputy Administrator since 2002. The 
committee worked very closely with him and his staff crafting 
the Surface Transportation Reauthorization bill, passed and 
signed into law last year.
    I will put the balance of my statement in the record, but 
he has an extraordinary family history, and perhaps he will 
allude to it. Do I see some of your family is with you here 
this morning?
    Mr. Capka. Sir, I am flying solo this morning.
    Senator Warner. Flying solo this morning. All right, but I 
think it should be in the public record, two sons, both of them 
followed in the father's career in the military for periods of 
time.
    Thank you, Mr. Chairman, and good luck to you. You are on 
your own.
    [The prepared statement of Senator Warner follows:]

         Statement of Hon. John Warner, U.S. Senator from the 
                        Commonwealth of Virginia

    Thank you Mr. Chairman for holding this hearing today. One of our 
greatest responsibilities as members of the U.S. Senate is to provide 
advice and consent regarding the President's nominees for executive 
branch positions. Today, I have the pleasure to introduce an 
accomplished public servant, Richard Capka, to be the Administrator of 
the Federal Highway Administration.
    Brigadier General J. Richard Capka spent 29 years in the U.S. Army 
Corps of Engineers serving across the world in positions managing 
infrastructure projects from water infrastructure to roads to flood 
response in California. He has been awarded the Distinguished Service 
Medal, the Defense Superior Service Medal, and the Legion of Merit.
    After his retirement from active duty, General Capka served as CEO 
and executive director of the Massachusetts Turnpike Authority (MTA) 
where he directed and turned around Boston's $14.5 billion ``Big Dig'' 
project.
    His experience as a practicing engineer and in managing 
infrastructure projects across the world coupled with his experience 
managing highway megaprojects has served General Capka well in his role 
as Deputy Administrator of FHWA since August 2002. This committee 
worked very closely with him and his staff in crafting the Surface 
Transportation Reauthorization bill, SAFETEA, passed and signed into 
law last year. It was a 3-year odyssey that tested his mettle and led 
to his nomination to run the FHWA.
    Perhaps his most important accomplishment as an engineer however, 
is shared with his wife Susan. They have raised two sons who served in 
the Army and are engineers, one of whom followed in his father's 
footsteps to attend the U.S. Military Academy at West Point. I had 
secured an appointment for him to attend the U.S. Air Force Academy but 
he decided on West Point instead. They now have left active duty but 
are still serving the public building light rail transit systems in the 
Northwest United States and as a geotechnical engineer at the Federal 
Energy Regulatory Commission (FERC). Most important, with their wives 
Mary Beth and Kristen, General Kapka's sons are raising the next 
generation of America's engineers, 3 grandsons and twins on the way.
    He is ready, willing, and able to get to work. I applaud his 
willingness to serve this President, the Secretary of Transportation, 
and the American people and urge the committee to quickly report his 
nomination to the full Senate.

    Mr. Capka. Thank you, sir.
    Senator Inhofe. Thank you, Senator Warner.
    We will now continue with our opening statements.
    Senator Jeffords.

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

    Senator Jeffords. Thank you, Mr. Chairman.
    I want to thank all of our nominees here this morning for 
their commitment to public service.
    I want to welcome our first nominee, Richard Capka, to head 
the Federal Highway Administration. I look forward to learning 
from Mr. Capka about the implementation of SAFETEA and his 
views on how we will finance the Federal Surface Transportation 
Program in the years to come.
    Welcome to James Gulliford, the nominee to head the Office 
of Prevention, Pesticides and Toxic Substances. This office has 
not had a political appointee in charge since Governor Whitman 
left EPA in 2003. During this time, the Center for Disease 
Control uncovered widespread human exposure to untested 
industrialized chemicals. Several studies confirm that even 
newborn babies are exposed to hundreds of manmade chemicals, 
many of which have been linked to cancer and neuro-development 
disorders.
    The Government Accountability Office revealed that EPA has 
required testing for fewer than 200 of the 62,000 chemicals in 
commerce since 1979, and only five chemicals have been 
regulated. In addition, the GAO found the Agency lacks 
sufficient data to ensure that political health and 
environmental risk of new chemicals are identified. Faced with 
these challenges, the Bush administration has chosen to cut 
funding for these critical functions and weaken the community's 
Right-to-Know Toxic Release Inventory Program.
    Thank you.
    Mr. William Wehrum is named to be Assistant Administrator 
for Air and Radiation at the Environmental Protection Agency. 
Quite frankly, I am troubled by this nomination, given that Mr. 
Wehrum has served a top political appointment in this office 
since 2001. During his tenure, we witnessed this 
Administration's repeated assaults on our Nation's 
environmental protection laws, especially the Clean Air Act.
    During this time, big energy companies have complete access 
to the decisionmakers at the top levels of the Bush 
administration and the EPA. We see reports in the national 
press that Mr. Wehrum and his predecessor, Mr. Holmstead, have 
crafted rules based on input from their former colleagues in 
industry, rather than the advice of the EPA career staff.
    At the industry's request, rules and regulations have been 
put forth that allow the dirtiest powerplants to increase their 
electricity production without installing required modern 
pollution controls. A report of the EPA Inspector General 
suggests that the outcome of EPA's mercury rule was 
predetermined by ``senior management,'' and analysis promised 
to a Federal advisory committee was abruptly cancelled by Mr. 
Wehrum and his predecessor.
    Another report by the EPA Inspector General forces us to 
conclude that neither Mr. Wehrum nor his predecessor have 
completely been candid about the effect of EPA's proposed New 
Source Review rules on ongoing enforcement actions.
    The person who accepts this role will be a steward of the 
Nation's air quality. We ask that he serve as our conscience on 
air pollution and we ask that his conduct and his 
decisionmaking process be above reproach, both in terms of 
scientific basis and in transparency to the public.
    I have concerns about whether the 5-year public record put 
forth by this nominee and this Administration upholds these 
standards. I hope that during the questioning, Mr. Wehrum can 
convince me that these concerns are unfounded.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Jeffords follows:]

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

    Thank you, Mr. Chairman, and I want to thank all of our nominees 
here this morning for their commitment to public service.
    I want to welcome our first nominee, Richard Capka, to head the 
Federal Highway Administration. I look forward to hearing from Mr. 
Capka about the implementation of SAFETEA and his views on how we will 
finance the Federal surface transportation program in the years to 
come.
    Welcome, James Gulliford, the nominee to head the Office of 
Prevention, Pesticides and Toxic Substances. This office has not had a 
political appointee in charge since Governor Whitman left the EPA in 
2003. During this time, the Center for Disease Control uncovered 
widespread human exposure to untested industrial chemicals. Several 
studies confirm that even newborn babies are exposed to hundreds of 
man-made chemicals, many of which have been linked to cancer and neuro-
developmental disorders.
    The Government Accountability Office revealed that the EPA has 
required testing for fewer than 200 of the 62,000 chemicals in commerce 
since 1979, and only five chemicals have been regulated. In addition, 
the GAO found the Agency ``lacks sufficient data to ensure that 
potential health and environmental risks of new chemicals are 
identified.''
    Faced with these challenges, the Bush administration is proposing 
to cut funding for these critical functions and to weaken the 
Community-Right-To-Know ``Toxic Release Inventory Program.'' Mr. 
Gulliford, I look forward to hearing your plans to overcome these 
hurdles if you are confirmed.
    Our third nominee is William Wehrum, named to be the Assistant 
Administrator for Air and Radiation at the Environmental Protection 
Agency. Quite frankly, I am troubled by this nomination, given that Mr. 
Wehrum has served as a top political appointee in this office since 
2001. During his tenure, we have witnessed this Administration's 
repeated assaults on our Nation's environmental protection laws, 
especially the Clean Air Act.
    In 1990, Congress and the first President Bush agreed on far-
reaching changes to the Clean Air Act to improve the health of every 
single American. As a member of this committee, I sat through days of 
meetings in this building and over in Majority Leader Mitchell's office 
as we developed this delicate compromise.
    Throughout the 1990's, then-Presidents Bush and Clinton moved to 
fully implement these important air-pollution reduction measures. But 
in the past 5 years, this Administration has systematically dismantled 
these protections. During this time, big energy companies have had 
complete access to the decisionmakers at the top levels of the Bush 
administration and the EPA.
    We see reports in the national press that Mr. Wehrum and his 
predecessor, Mr. Holmstead, have crafted rules based on input from 
their former colleagues in industry rather than the advice of EPA 
career staff. At the industry's request, rules and regulations have 
been put forth that allow the dirtiest powerplants to increase their 
electricity production without installing the required modern pollution 
controls. The result: more mercury in our environment causing learning 
disabilities in children; greater soot and ozone causing lung and 
respiratory illness in children and seniors; more haze and acid rain 
destroying our forests.
    Polluters win, public health loses. This is a most disturbing 
trend, and one that I can only assume that Mr. Wehrum has had an active 
role in promoting during his tenure with the EPA. A report issued by 
the EPA Inspector General suggests that the outcome in the EPA's 
mercury rule was pre-determined by ``senior management,'' and analyses 
promised to a Federal advisory committee were abruptly canceled by Mr. 
Wehrum and his predecessor. Another report by the EPA Inspector General 
forces us to conclude that neither Mr. Wehrum nor his predecessor has 
been completely candid about the effect of the EPA's proposed New 
Source Review rules on ongoing enforcement actions.
    Mr. Chairman, you and I have worked together on the committee for 
many years and we have confirmed many qualified nominees from all ends 
of the political spectrum. While I have not always agreed with the 
views of candidates, I believe the President should be able to choose 
his own people to carry out his policies, and I have always voted in 
this committee to confirm nominees.
    Having said that, I also believe the Constitution imposes an 
obligation upon this body, and this committee, to carefully scrutinize 
nominees and not simply rubberstamp those who come before us for 
positions of the public trust. The person who accepts this role will be 
the steward of our Nation's air quality. We ask that he serve as our 
conscience on air pollution, and we ask that his conduct and his 
decisionmaking process be above reproach, both in terms of its 
scientific basis and its transparency to the public.
    I have concerns about whether the 5-year public record put forth by 
this nominee and this Administration upholds these standards. I hope 
that during our question-and-answer period, Mr. Wehrum can convince me 
that these concerns are unfounded.

    Senator Inhofe. Thank you, Senator Jeffords.
    Senator Bond.

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

    Senator Bond. Thank you very much for holding these 
hearings today, Mr. Chairman. We are delighted to have these 
fine nominees before us.
    Briefly, with Mr. Capka, I know that he has endured the Big 
Dig in Boston and come out with some successes out of a project 
that was mired in the mud. He is well known to the State 
transportation officials in Missouri, as well as other States, 
and based on the reports we get from the folks who are actually 
building the highways in the States, I can say that he deserves 
our wholehearted support.
    On the next panel, I have the great privilege of 
introducing a nominee who has served very well. I am proud to 
introduce him to the committee. I claim him as somewhat of a 
constituent because he currently serves EPA's Region VII as the 
Regional Administrator for the region covering Missouri. He has 
done a fine job for EPA and a fine job for Missouri, even if he 
did come from Iowa.
    He has had 25 years of professional experience 
administering environmental programs in agriculture and mining. 
Before serving as Regional Administrator, he was Director of 
the Iowa Soil Conservation Program. Previously, he was with 
Iowa State University and Southern Illinois in mine reclamation 
and environmental protection.
    As you can imagine, I am much more familiar with what he 
has done in Missouri. I can tell you that the record has been 
outstanding. He oversaw EPA's participation in a project to 
clean up Smithville Lake in partnership with the Missouri 
Corngrowers, USDA, and other agricultural organizations. The 
project produced successful voluntary watershed efforts by 
farmers to establish best management practices to protect a 
very important lake from atrazine runoff. Atrazine is a very 
important herbicide in corn production.
    As a result of that project, the atrazine impairment for 
the lake has been removed. He has helped get out the word on 
soy biodiesel, recognizing the importance of alternative fuels 
and the opportunity of agriculture to contribute to the next 
generation of low-sulfur diesel fuels.
    Together, we participated in the Missouri State Fair 
Agricultural Leadership Listening Forums, as well as efforts in 
Southwest Missouri with communities and farmers to protect 
water quality in high-growth areas. He has been a very 
successful Regional Administrator and he will be good for the 
Nation and its pesticide programs.
    Finally, Mr. Chairman, I regret to say that today is the 
kind of day with respect to our third nominee that keeps so 
many fine candidates from serving their country, the kind of 
day that means so many of them say ``no, thank you'' when their 
country calls, the kind of day that makes family members in the 
audience cry.
    You see, we are about to witness the fruition of a long-
planned attack in opposition to the EPA Air nominee. To help 
the cause, details of a mysterious EPA proposal not formalized 
by the Agency, not proposed as a rule, only commented upon 
internally by Agency officials in a private memo, are leaked to 
an environmental group and then to the press.
    In perfect coordination, a member releases a press release 
and stories appear in the Washington Post and the New York 
Times criticizing the proposal and nominee. Even though the 
leaked memo was written in December, all this coincidentally is 
brought to light in the days before a confirmation hearing in 
April.
    What is the issue about? Well, it has to do with whether 
EPA should revoke an air policy which forces facilities to 
install control technology even if they no longer exceed 
emissions limits. Now, you think that is pretty dry stuff, but 
of course that is not why it was done. Instead, it was done to 
create a scene, to get media attention, to make things 
uncomfortable for the nominee, and by damaging his fine 
reputation, to try to hurt the President and the 
Administration.
    Well, on behalf of all of us, I apologize to Mr. Wehrum, 
the EPA Air nominee, in advance, and more importantly to your 
family. You have served EPA and the Nation tirelessly for the 
last 5 years. Air quality has improved during your tenure and 
will continue to improve under your watch. I was proud to 
support the Administration's Clear Skies proposal to reduce 
acid rain, smog and mercury emissions by 70 percent. I was glad 
to see that EPA went ahead with it anyway where it could when 
politics blocked the Senate from acting.
    I will proudly support the nomination of Mr. Wehrum in the 
committee, and will vote on the floor if we are given a chance 
to do so. I hope, however, this latest example of polarized 
debate here in Washington and the potential for personal 
attacks that come with it, do not deter other fine candidates 
from serving in the Government.
    I thank the Chair.
    Senator Inhofe. Thank you, Senator Bond. I must associate 
myself with your remarks.
    Senator Lautenberg.

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

    Senator Lautenberg. Thanks, Mr. Chairman.
    I appreciate the fact that we are having a chance to meet 
with these candidates this morning and review, as we have as a 
responsibility to do, their qualifications. I listened to our 
colleague just a minute ago, identifying these hearings as 
torture tests and opportunities to pick on families. Not to do 
it, not to ask the questions that come across in our 
responsibility as U.S. Senators, I think is a dereliction of 
duty.
    I served my country in uniform and I have done what I had 
to to be a good representative of the State of New Jersey and 
this country. I feel free to ask questions, and I will 
unashamedly be willing to criticize publicly if necessary. I 
apologize to the families if they are offended. This is by no 
means an attack on your representative who is here.
    We have a job to do. When I think of the work that I have 
to do, especially in the area of EPA and environmental 
controls, I never forget that I have 10 grandchildren, the 
oldest of which is 12. I am concerned about the air they 
breathe, the water they drink, and the chemicals that invade 
our everyday living. I am concerned about things like that. No 
one can take that responsibility away from me, I will tell you.
    So Mr. Chairman, I thank you. I am concerned about these 
nominees. These hearings present important tasks. We have three 
candidates and I look forward to the opportunity to hear from 
them and to learn more about their views.
    The Agency that Mr. Capka--and I commend you for your 
military service, Mr. Capka--is nominated to head initially 
indicated it may withhold New Jersey highway funds from being 
transmitted. These are funds which this committee approved last 
summer in the Highway bill. Last year, Mr. Capka got involved 
personally and soothed our feelings by approving New Jersey's 
method of funding of our State's share of transportation 
projects. A few weeks ago, however, information came out that 
the Administration was considering going back on their word and 
might withhold some of these funds. But I understand that Mr. 
Capka is working to clear up the problem, and I look forward to 
his affirmation in our question period.
    I am pleased that the Federal Highway Administration has 
agreed to approve New Jersey's fiscal year 2006 and 2007 State 
transportation plans, and I will closely monitor the Agency's 
progress.
    Regarding Mr. Wehrum, his record is different than that 
which I would like to see at the EPA in this critical job. I am 
concerned about jobs. I am concerned about our economy, but I 
am also, as I indicated earlier, concerned about his view on 
what enters our atmosphere and what we are going to do to 
control it. As Counsel for EPA's Office of Air and Radiation, 
then as Acting Assistant Administrator, he presided over 
rulemakings that would delay reductions in the emissions of 
mercury, which has already polluted every river and lake in New 
Jersey.
    According to news stories published this week, Mr. Wehrum's 
office drafted a proposal to allow hundreds of industrial 
facilities to increase their emissions of toxic chemicals like 
arsenic, benzine, cadmium, lead and formaldehyde. A Federal 
court recently held that a different set of rules drafted by 
Mr. Wehrum to relax pollution controls were in violation of the 
Clean Air Act.
    Mr. Chairman, you and other members of this committee know 
how strongly I feel about the need to maintain a strong Clean 
Air Act. I don't see the evidence that Mr. Wehrum's agenda 
extends much beyond weakening critical clean air protections.
    I also will be interested to hear the testimony today from 
Mr. Gulliford, the nominee to head the Office of Prevention, 
Pesticides and Toxic Substances. I hope that Mr. Gulliford will 
be able to articulate and follow through on an aggressive 
agenda to obtain needed information about the health effects of 
new chemicals and those already on the market. I would like an 
assurance that the mission of the office would be to truly 
protect families from toxins, dangerous chemicals, my 
grandchildren and the grandchildren of everyone who has 
grandchildren living in America.
    Thank you.
    Senator Inhofe. Thank you, Senator Lautenberg.
    Without objection, I will submit for the record right 
before the opening remarks of General Capka five letters of 
support from organizations who are singing your virtues.
    Senator DeMint.

  OPENING STATEMENT OF HON. JIM DeMINT, U.S. SENATOR FROM THE 
                    STATE OF SOUTH CAROLINA

    Senator DeMint. Thank you, Mr. Chairman.
    I want to thank all of our nominees for their willingness 
to serve.
    Just a couple of comments. I will start with the highway 
system, Mr. Capka. I am going to introduce a bill today that 
would begin a process of turning back some of the functions 
that the Highway Administration has taken over from the States. 
As you know, the Federal Highway Administration was set up to 
build an interstate highway system, which is essentially 
complete. The mission has crept to the point where we are 
effectively micromanaging a lot of functions at the State level 
that we cannot do efficiently.
    My hope is that you and others at the department will work 
with us on evaluating this idea to look at the idea of 
devolving some of the functions now at the Federal level to 
allow States more flexibility to manage their own roads and 
highways and bike paths. So we can talk more about that later.
    Just a couple of comments about the EPA. I appreciate my 
colleagues' concerns for air quality, water quality. We have 
made a lot of progress and it is something that I hope we can 
continue.
    But we do need to do it in a rational way. I hear some 
folks suggesting that perhaps the EPA is too pro-business. My 
experience is they have been irrationally anti-business in my 
part of the country. The EPA has put our part of the State of 
South Carolina under a designation of unclassifiable. We have 
tried to work with the EPA for a number of years now.
    The real problem here is we are still collecting data. We 
have yet to be told what the pollutants are, or have any 
recourse in how to fix them, yet the EPA continues to develop 
new standards, stricter standards, when we have no idea on how 
to fix the problem we already have, or whether it is coming 
from another State.
    So I will certainly support the nominees, and I know it is 
a difficult balance to deal with what we have just heard from 
some other folks about being too pro-business, when it looks to 
me like we are trying to close business down in this country. 
Clean air is an important part of the quality of life, but so 
is a good job. So the EPA has a very difficult challenge, and I 
look forward to working with both of these nominees, 
particularly Mr. Wehrum, on how to develop a better regulatory 
system that works for health, as well as our economy.
    Thank you, Mr. Chairman.
    Senator Inhofe. Thank you, Senator DeMint.
    Senator Boxer.

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

    Senator Boxer. Thanks so much, Mr. Chairman.
    We have before us nominees for three important positions: 
highways, pesticides and air. We have limited time to question 
all of them, at least I certainly do, and I know you will be 
devastated to know that I have a conflict.
    Senator Inhofe. Oh.
    [Laughter.]
    Senator Boxer. I know. I know. I have to go to the Foreign 
Relations Committee to deal with the India-United States 
proposed agreement on nuclear weapons. So I would ask unanimous 
consent, first, that my questions and the nominees answers be 
included in the record.
    Senator Inhofe. Without objection.
    Senator Boxer. Mr. Chairman, I want to focus my remarks 
today on the nominee who would lead the Office of Air and 
Radiation, Mr. Bill Wehrum. I do want to associate myself with 
Senator Lautenberg's remarks. Senators are not rubber stamps. 
We need to be independent voices fighting for the health and 
safety of our States. So in that context, I will make my 
remarks.
    I will not be referring to leaked memos that Senator Bond 
talked about. I will address those at a later time, but right 
now I have other things to talk about, because the job of 
ensuring our air is safe to breathe is crucial to the health of 
our people, and every State faces challenges when it comes to 
air quality. I want to share with you a few of the reasons I am 
so concerned about where we are heading on this issue.
    Because Californians breathe some of the most toxic air in 
the Nation, according to a recent article, March 22 in the L.A. 
Times, California is second in the Nation when it comes to 
cancer risk posed by air pollution. Another recent L.A. Times 
article on March 25 describes new scientific research showing 
that the number of deaths from breathing city smog in 
California may be twice as high as previously estimated.
    The current number of premature deaths due to air 
pollution-related disease in California is 9,000 annually. We 
face increased risk of lung cancer, heart attacks, and other 
serious illness tied to fine particulants in the air. A 
doubling or tripling of premature deaths represent a lot of 
unnecessary suffering for the families of my State.
    So I view today is that we are at a crossroads. Do we 
continue to erode the gains that we have made in the past on 
air pollution? One thing is clear to me, if we continue down 
the recent path the public will pay the price. We are not 
talking about bureaucracy here. We are talking about life and 
death.
    The nominee to lead the air program at EPA is extremely 
troubling to me, and I see that Senator Clinton has come in. 
Senator Clinton, your State is No. 1 in cancer deaths related 
to air. My State is No. 2. So you have people on this committee 
who view these nominations through a very different kind of 
lens, perhaps, than others.
    Mr. Wehrum's record at EPA has demonstrated to me a pattern 
of discounting health impacts and ignoring scientific findings, 
and substituting industry positions for the clear intent of 
Congress. I am going to very quickly in my remaining time go 
through some of the highlights of his record.
    Let's start with the mercury rule. Mercury is, among other 
things, a potent toxin on the human nervous system. It is 
especially dangerous to developing fetuses and young children. 
Common sense would dictate that every effort be made to limit 
human exposure to this substance. A look at comments by the 
former chief of EPA's own Air Enforcement Division and the EPA 
Inspector General on the mercury rule are more than troubling, 
given Mr. Wehrum's position and documented direct involvement 
in the rule.
    Here it is. EPA enforcement chief criticizes EPA for 
failing to rely on science in the mercury rule, and says, ``a 
political agenda is driving the Agency's output, rather than 
analysis of science.'' Then chart 2 shows ``EPA mercury rule 
ignores children's health. The Agency downplayed or ignored the 
significant threat of mercury to children's health, even in the 
face of persistent evidence-based concerns voiced repeatedly by 
the leading children's health experts in the country.''
    Chart 3, ``EPA Inspector General critical of proposed 
mercury rule.'' I don't have time to read all of this. 
``Evidence indicates EPA senior management instructed EPA staff 
to develop a maximum achievable control technology standard for 
mercury that would result in national emissions of 34 tons 
annually, instead of basing the standard on an unbiased 
determination of what the top performing units were achieving 
in practice.''
    Then, I would say that I mentioned at the outset, fine 
particles are one of the most lethal forms of air pollution, 
causing thousands of deaths in California, New York and 
elsewhere.
    Mr. Wehrum was running the air program at EPA when the EPA 
particle rule came out. Let's look at what children's health 
experts say about the rule. I am almost done, Mr. Chairman. 
They say, ``EPA soot and toxic dust standards fail to protect 
children's health.''
    So here we go. We have a nominee here, and I would ask 
unanimous consent that the rest of my statement be placed in 
the record.
    Senator Inhofe. Without objection.
    Senator Boxer. Who is being rewarded? How is he being 
promoted after he has received criticism from people in his own 
Agency and from scientific experts and doctors and children's 
health experts? I think this is very troubling, Mr. Chairman, 
and I feel very strongly about it because, again, this is a 
position that is directly related to the lives and the health 
of my people at home.
    Thank you.
    Senator Inhofe. Thank you, Senator Boxer.
    Senator Murkowski.

OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM THE 
                        STATE OF ALASKA

    Senator Murkowski. Thank you, Mr. Chairman.
    Welcome and good morning to all of the nominees here this 
morning, obviously very important positions, critical positions 
as they relate to all of our constituents.
    Having just gone through a very lengthy and ultimately very 
contentious reauthorization of the Highway bill, I think we all 
know how important it is to make sure that we have a leader in 
place at the Federal Highway Administration who will see to it 
that the Agency functions, that it is smooth, that it is 
responsive. We look forward to ultimately your leadership there 
at Federal Highway Administration, Mr. Capka.
    Similarly, the other two nominees that are before us today 
within EPA, very critical positions in terms of how we do 
answer to the air quality concerns of this country. We are all 
concerned about the toxics that we are exposed to. We want to 
be absolutely certain that whatever we do, we are doing the 
most that we can to make sure that the environment is healthy, 
that the air is clear, that we do have an environment that we 
want to live in and we want to know that our children are safe 
as well.
    We know very well the importance of air quality, of 
emissions regulations. These are some very difficult 
discussions that we have as they relate to a healthy 
environment and climate.
    Mr. Chairman, I just want to note also, I did find it 
curious in terms of the timing, the article just yesterday in 
the New York Times and in the Washington Post, as it related to 
this draft EPA rule, and recognizing that the draft did not 
come from the Agency itself, but the draft came through an 
environmental group.
    I have not read it. I don't know the contents of it. 
Obviously, that will be something of much greater discussion as 
we move forward. I will tell you, however, having read that 
article, I don't think that we can dismiss out of hand if it is 
true that 8 or 9 of the Agency's 10 regional offices expressed 
concern about the draft and felt that they were being kept out 
of the decision loop. That is something that we need to be 
looking to.
    But Mr. Chairman, I recognize that we probably all have a 
fair number of questions to the nominees this morning, so I 
will yield back the balance of my time. I, too, have two other 
conflicting committee meetings, so the questions for Mr. Wehrum 
will probably be submitted through the record, if they may.
    [The prepared statement of Senator Murkowski follows:]

 Statement of Hon. Lisa Murkowski, U.S. Senator from the Sate of Alaska

    Thank you, Mr. Chairman. I look forward to hearing the comments of 
the nominees before us today. These are all very important positions 
and need to be scrutinized carefully, as they affect all Americans 
every day.
    Having just gone through a very lengthy and ultimately very 
contentious reauthorization of the Highway bill, I think we all know 
how important it is to ensure that we have a leader in place at the 
Federal Highway Administration who will ensure that Agency's smooth 
functioning and responsiveness to the issues.
    I place similar value on the two positions in EPA we are 
considering about today. Throughout the country, Americans are 
concerned about toxics and want to be absolutely sure we are doing our 
best to keep their environment healthy. We know very well the 
importance of air quality and emissions regulations which are at the 
center of some of our most difficult discussions on health, the 
environment and the climate.
    I found it striking that articles that were highly critical of a 
draft EPA rule appeared yesterday in the New York Times, the Washington 
Post and Congress Daily, just when Mr. Wehrum was coming before this 
committee. Just as interesting was the fact that the draft rules were 
apparently not released by the EPA, but by a national environmental 
group. However, we cannot simply dismiss the issue out of hand, if it 
is true that 8 or 9 of the Agency's 10 regional offices expressed 
concern about the draft and felt they were being kept out of the 
decision loop.
    I noted comments ranging from an accusation that the rule would 
allow the release of up to 50,000 pounds more toxic material per year, 
to a rebuttal saying it would actually encourage companies to install 
control systems earlier than they are required to do under the current 
law.
    My understanding is that current law requires companies to install 
Maximum Achievable Control Technology (MACT) [rhymes with ``smacked''] 
which can be a great deal more expensive than more modest alternatives 
if toxics exceed 10 tons of any single substance or 25 tons overall. I 
haven't seen the proposed rule, but understand it simply allows a 
company that exceeds this limit to avoid MACT if it can get back down 
to the acceptable range. I am very interested in hearing what Mr. 
Wehrum may have to say about this, and for that reason, I'm happy to 
forego the opportunity to give a speech in order to get us to that 
point even more quickly.

    Senator Inhofe. Thank you, Senator Murkowski.
    Senator Baucus.

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

    Senator Baucus. Thank you, Mr. Chairman.
    First, thank you for holding this hearing. These are very 
important nominees, all are dedicating their lives, virtually, 
to public service, certainly during the term in which they 
serve. I commend them and I thank them for making that 
sacrifice. It is difficult for them personally, as well as for 
their families. We all thank them and owe them a deep debt of 
gratitude. So thank you very much for scheduling this hearing.
    I am going to focus on one in particular, and that is Mr. 
Capka, who has been nominated to be Administrator for the 
Federal Highway Administration. I will begin, Mr. Capka, by 
noting that my State, Montana, is a highway State. We are not a 
seaport State. We are not a barge State. We don't have big 
international airports. We are a highway State. It is our 
lifeblood. We have more miles per capita of Federal highway 
than any other State in the Nation.
    In my State of Montana, I might say that people think 
nothing of getting in the car at 4, 5, or 6 o'clock in the 
evening and driving maybe 60 or 80 miles for dinner or supper. 
With apologies and respect to my good friend sitting to my 
left, like in New Jersey or New York, which are States that are 
densely populated, we don't want to drive 60 miles through New 
York or New Jersey. We do want to drive in those vast spaces of 
Montana, the mountains, the skies. It is just beautiful.
    We are a highway State. We just love getting into the car 
and driving to go someplace. It is also to haul our grain, our 
products and so forth. I know you understand that. You told me 
you have visited Montana a couple of times, but I just want to 
reemphasize that point.
    Much of my time, too, in this committee has been devoted to 
ensuring our highway system. I very much thank the Senators to 
my right, the Chairman of the committee, Senator Inhofe, 
Senator Jeffords, and Senator Bond. We are part of the core 
center that worked together to make sure we have a good solid 
highway program put together, and then working with the House. 
We are a good team. We work together. There is compromising. It 
is not partisan at all. I thank you, Mr. Chairman, for your 
help very much. Your chairmanship is one of the main reasons 
why we have a good Highway bill. I look forward to working with 
you in the future.
    It is also I think important to remind ourselves that we 
have to really work to improve our infrastructure generally and 
the highway system particularly in this new competitive world. 
Some say the world is flat. If you come to Montana, it is not 
entirely flat, but it certainly is a new economy. It is a new 
globalization where we have to put even more emphasis on our 
infrastructure to make sure that we can get goods and products 
to market and back and forth.
    We visit countries overseas, it is incredible the amount of 
time and energy they are spending on their infrastructure. I 
was in India just a couple of months ago. They just kept crying 
out, okay, where are you Americans? We need your help to build 
our infrastructure in India. The same is true in China, the 
highways they are building in China. I was in Chunking, China 
not too long ago. It is incredible the highway system they have 
there in Chunking, a city of 30 million people. It is a massive 
highway system, brand new. It is like interstate standards. It 
is incredible. So if we are going to be competitive, we have to 
maintain that same effort.
    I wish you luck, Mr. Capka. It is a tough job. It is a job 
that is very, very important. It is critical to the safety and 
the competitiveness of our country. I look forward to working 
with you. As we discussed yesterday, I am especially 
interested, and you know what it is, it is to make sure that we 
get the funding for the Going-to-the-Sun Highway through 
Glacier Park in Montana.
    I know Senator Lautenberg knows what I am talking about. I 
took him to Glacier Park not too long ago, and he was very 
impressed. I will never forget some of the words that he used 
when he was in Glacier. I won't say his eyes popped out, but he 
really appreciated the Going-to-the-Sun Highway. We want to 
make sure that we get that full funding that was provided for 
in the Highway bill.
    As you know, this Congress said okay, $50 million to 
renovate the Going-to-the-Sun Highway, because the highway, as 
you know, it was built in the 1930s during the Depression. I 
think 10 or 12 miles was literally carved out of the mountain 
through Glacier Park, but over time it needs repair. This is a 
national treasure. People across the country travel the Going-
to-the-Sun Highway in Glacier Park. It is a Montana treasure. 
It means so much to so many people. There aren't that many 
treasures like that left. It is certainly therefore important 
that that treasure be maintained.
    So $50 million was provided for it in the Highway bill. We 
also wrote the language according to the way that the Federal 
Highway Administration asked us to write it, to make sure that 
$50 million is actually there. As you know, as we have 
discussed, lo and behold now the Administration has changed its 
mind subsequent to passing the Highway bill, and saying, ``Oh, 
that language isn't quite exactly the right words.''
    I am just saying to you that we have to be sure that we get 
that full $50 million right now, or frankly we are going to 
have to spend some time discussing your nomination. It is just 
that important, frankly, to not only Montana, but to the people 
of this Nation.
    Now, it is a large project. It is going to cost probably 
around $150 million total all together, but we are just asking 
to make sure that down payment is available and is there, 
because we have short construction seasons in Montana. The 
Going-to-the-Sun probably is not going to open up this year 
until after the Fourth of July, there is so much snow, after 
the Fourth, and that is usually the opening date, some years 
earlier, some years later, or about July Fourth. There is so 
much snow now in Glacier that we don't get to open up the road 
until that date.
    So I just want to emphasize, Mr. Capka, I want to work with 
you, but this is something we just have to resolve before we 
can proceed. So let me know what you have to do, and I hope 
that very soon we can reach an agreement with the 
Administration that that money is there so that we can proceed, 
and then we can go address all the other issues that this 
country is facing with respect to our highway system. There 
have been lots of times over the years we will be working 
together on issues, because they come up with the highway 
system, one thing or another. I frankly want to thank your 
boss, Secretary Mineta.
    We had another problem in Montana. It is called the Bear 
Tooth Highway. You I'm sure knew about it. There was a big 
flood, a catastrophe, a lot of snow, then heavy rain. It just 
breached the highway in lots of places. It was an emergency to 
get that put back together again. Secretary Mineta was really 
good. I want to just make sure you thank him for his help in 
making sure we got that money to repair that highway.
    So again, Mr. Capka, I wish you good luck, but we have this 
little issue we have to straighten out.
    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.
    I appreciate your holding today's hearing on three nominees 
that I believe are well qualified to fill the existing 
vacancies at Federal Highway Administration and at the EPA.
    I have recently met with Mr. Capka and Mr. Gulliford, and 
feel that each nominee brings not only experience, but 
expertise to the positions the President has nominated them to. 
I have reviewed some of Mr. Wehrum's material that he has 
provided to this committee and feel as well that he will do an 
excellent job as Assistant Administrator.
    I might add that I have worked fairly closely with the Air 
Office at EPA concerning renewable fuels issues. I appreciate 
very much the importance of having people in those positions 
who look at the science, who will take a balanced, common 
sense, science-based approach to these issues and try to 
sanitize some of, if we can, emotion out of these issues and 
look at it based on the facts and look at it based on the 
science. That certainly was my experience in working with the 
Air Office on an issue of great importance to my State and to 
the future of the renewable fuels industry in this country.
    Mr. Chairman, each of today's nominees is particularly 
important in light of this committee's longstanding involvement 
in transportation and environmental issues. I strongly believe 
that each of the existing vacancies should be filled by well 
qualified individuals. After all, our job of Agency oversight 
is particularly difficult when there is not an individual on 
the other end of the phone regarding issues that are important, 
not only to our respective States, but also to this committee.
    So I appreciate very much the opportunity to have these 
nominees in front of the committee this morning to be able to 
respond to questions from members of the committee. I look very 
much forward in the future to working with each of these 
nominees as we pursue policies that are good for the 
environment, good for the economy, good for creating better 
jobs in this country for Americans. So I very much welcome them 
here today and thank them for their service.
    I yield back.
    Senator Inhofe. Thank you, Senator Thune.
    Senator Clinton.

OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR 
                   FROM THE STATE OF NEW YORK

    Senator Clinton. Thank you very much.
    Mr. Chairman, I would ask unanimous consent to submit my 
entire opening statement for the record.
    Senator Inhofe. Without objection.
    Senator Clinton. Mr. Capka, with the strong support of the 
Chairman, we created the National Surface Transportation Policy 
and Revenue Study Commission. The idea behind that was to study 
the future needs of surface transportation, both highways and 
intermodal functions, and to determine how we were going to 
meet the needs of our country, because clearly, as Senator 
Baucus pointed out, other countries are moving ahead with their 
infrastructure development. We have old infrastructure. We not 
only need to repair and maintain that, we have new 
infrastructure we should be building.
    So I would expect before your nomination gets to the floor 
that this commission will be underway. It was supposed to be 
put into place within 120 days after the bill was passed last 
August. So far, it has not been, although I just heard that the 
White House is going to make its nominations, but the report is 
due on July 1, 2007.
    So I hope that you and the folks from the White House and 
from the department will make it a real priority to get those 
nominations made, and then secondly to make sure that they have 
the key staff from the Federal Highway Administration to do the 
work that we expect them to do, and whatever resources are 
necessary to carry out its functions.
    I will certainly be looking to that as we move forward with 
your nomination because there is no reason this should drag on. 
We are now months behind the schedule that we should have to 
get that commission up and going.
    With respect to the concerns expressed by several of my 
colleagues, in particular Senator Boxer, I just have to 
underscore the distress that many of us feel with respect to 
the constant manipulation of analyses and the failure to 
consider relevant scientific information, and to ignore the 
advice of key advisory panels.
    In February 2005, the EPA Inspector General issued a report 
about the Administration's mercury rule. That report basically, 
after going through all of the decisions that were made, 
concluded that the nominee before us, Mr. Wehrum, and other EPA 
officials simply ignored the Clean Air Act's requirements and 
directed EPA staff to rig the mercury analysis so that 
reductions would mesh with the expected co-benefits of the 
Clean Air interstate rule.
    The advisory committee that was supposed to be assisting in 
developing the mercury rule, requested specific information, 
requested a meeting. The meeting never happened. According to 
the L.A. Times in early 2003, Mr. Wehrum told the dozen or so 
EPA staffers that comparative studies would be postponed 
indefinitely. In fact, the advisory committee was disbanded. 
The studies were never conducted.
    Similarly, the EPA ignored the recommendations regarding 
the mercury rule made by the EPA Children's Health Protection 
Advisory Committee.
    Third, in addition to refusing to conduct the analyses 
requested by the advisory committee, Congress or others, EPA 
did not even consider all of the relevant scientific studies 
that were available. When finalizing the mercury rule, EPA 
ignored an EPA-funded study conducted by the Harvard Center for 
Risk Assessment which showed potentially greater health 
benefits from reducing mercury.
    You know, it is very disheartening, Mr. Chairman, because 
we constantly have this problem. Now we get the article in the 
paper today that even the internal EPA regional directors are 
speaking out because they are so distressed about the direction 
that the political appointees are taking the Environmental 
Protection Agency.
    I just have to underscore the point made by Senator Boxer. 
Every year that goes by, we get more evidence about the adverse 
affects of the environment in terms of the toxins that we 
breathe or we drink on our development, particularly of our 
children. Mercury is not safe in any amount for human beings, 
particularly for children. As we look at this record that this 
particular nominee presents, I just find it very discouraging 
that we keep being asked to support nominees who really seem to 
be so disregarding and even contemptuous of all of the research 
that has been done by a broad cross-section of independent 
analysts about the air we breathe.
    Finally, Mr. Chairman, when we look at the New Source 
Review Act and the court that overturned what the EPA, with Mr. 
Wehrum's leadership, did was striking. This was the U.S. Court 
of Appeals including Janice Rogers Brown and the decision was 
unanimous. Now, you have to go a long way to get everybody 
unanimously against the government's position. In fact, the 
government's case rested on a bizarre and unlikely 
interpretation of the language and the court was absolutely 
contemptuous, and in fact said it was a humpty-dumpty world 
where Congress would use words that the Agency would basically 
ignore.
    So I think, Mr. Chairman, that this nominee deserves the 
closes of attention. It is absolutely clear that if he expects 
to have my support, he is going to have to demonstrate a new 
attitude toward policy from everything from mercury to clean 
air, because he was at the center of all of these decisions 
that, in my view, did not respect the law, did not consider all 
the available science, and did not put a premium on public and 
human health.
    Thank you, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Clinton.
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    Senator Inhofe. General Capka, we will recognize you for 
your opening statement.

  STATEMENT OF RICHARD CAPKA, NOMINATED TO BE ADMINISTRATOR, 
                 FEDERAL HIGHWAY ADMINISTRATION

    Mr. Capka. Thank you, Mr. Chairman, Senator Jeffords, and 
members of the committee.
    I have brief introductory remarks and request your 
permission to provide a more complete statement for the record.
    Senator Inhofe. Without objection.
    Mr. Capka. I would like to thank Senator Warner for his 
very kind introduction. I have been a resident of Virginia off 
and on for about 15 years of my 35 years of public life, and 
have enjoyed every minute of living in Virginia, even with the 
congestion.
    I appreciate the opportunity to appear before you today as 
you consider my nomination to be the Federal Highway 
Administrator. I am honored to have earned the confidence of 
President Bush and Secretary Mineta for this important 
position. I know, Mr. Chairman, you and the committee have a 
very important obligation to the American people. If confirmed, 
I pledge to work with this committee and Congress to ensure our 
Nation is strengthened through the work done at Federal 
Highways.
    It is an honor to be considered for this opportunity to 
continue to serve our great Nation. Most of all, I am honored 
and proud to be blessed with the love and support of my 
wonderful wife Susan and a family that includes two sons, their 
wives, three grandchildren and three more on the way. They have 
been beside me for a career in public service that includes 
almost 30 years of proudly wearing the military uniform and 
numerous assignments both here and abroad, commanding some of 
the finest organizations in the U.S. Army Corps of Engineers.
    Upon retirement, I continued my public service by accepting 
a challenging position in Massachusetts managing one of the 
Nation's largest and most complex public works projects. There, 
I earned the praise of the Department of Transportation 
Inspector General, while establishing for the first time a 
budget with the appropriate controls that has enabled cost 
forecasts to remain unchanged through today.
    I have also served more than 3\1/2\ years here in 
Washington addressing the Nation's transportation needs as 
Deputy and now Acting Administrator of Federal Highways. I have 
focused my energy on enhancing the stewardship of the Federal-
aid Highway Program, providing an effective Federal response to 
disasters, reducing highway fatalities, and relieving 
congestion.
    If confirmed, I will look at the prospect to serve with 
great optimism and enthusiasm. I see opportunities for us to 
improve the system that we do have. We will be celebrating the 
50th anniversary of the Interstate Highway System on June 29 of 
this year. Yet, our Nation continues to face serious 
challenges.
    It is unacceptable that nearly 43,000 Americans are killed 
on our roads every year. Congestion is clogging the routes to 
and from work and our recreation destinations. It is also 
clogging the movement of freight, which is so vital to our 
economy. The quality of our environment and the vitality of our 
communities all depend upon the quality of our transportation 
planning, efficient program delivery, and the effective 
management of our highways.
    Innovation must and will be at the heart of our solutions. 
How we capture and invest the Nation's transportation 
resources; how we employ research and technology talent; how 
well we attract the right disciplines and the best and the 
brightest into the transportation profession will determine how 
successful we will beare for the next 50 years.
    If you confirm my nomination, I will work diligently with 
this committee, Congress, and the many transportation 
stakeholders to both effectively carry out SAFETEA-LU and to 
help shape the future of surface transportation.
    Again, thank you, Mr. Chairman and members of this 
committee. I look forward to answering your questions.
    Senator Inhofe. Thank you, General. I appreciate your 
excellent opening statement.
    First, we have the required questions of you. Are you 
willing to appear at the request of any duly constituted 
committee of Congress as a witness?
    Mr. Capka. I am, Mr. Chairman.
    Senator Inhofe. Do you know of any matters which you may or 
may not have thus far disclosed that might place you in any 
kind of a conflict of interest if you are confirmed for this 
position?
    Mr. Capka. There are no such matters, Mr. Chairman.
    Senator Inhofe. Okay. Thank you.
    I think Senator Clinton brought up a good point in talking 
about this commission, the National Surface Transportation 
Policy and Revenue Study Commission. I can recall over the last 
three reauthorizations that I have been here through that that 
has been a discussion, of recognizing that the old way of doing 
it is not going to provide adequate resources to take care of 
what I consider to be the second-most significant function of 
government just behind defending our Nation.
    This time, because of that, we actually put the commission 
in here. I would like to get from you where you are on that 
right now, and what your thoughts are, and have you developed 
any kind of ideas for a new type of a system for funding, an 
overhaul of the old system?
    It is my observation, and while I am a conservative, I feel 
this is an area where conservatives are big spenders, and that 
is that we have infrastructure needs. As large as this bill was 
that we reauthorized, I think you could give a persuasive 
argument that the amount of money that is going to be used will 
just barely maintain that which is already there.
    So what thoughts do you have so far in terms of this 
commission and what they might come up with?
    Mr. Capka. Thank you, Mr. Chairman.
    I do share your concerns and the concerns of the committee 
over the importance of the commissions that were established 
under SAFETEA-LU. I also share your concerns that resourcing 
the requirements of the Nation's surface transportation is also 
critical to how well we are able to compete in the world 
economy in the not too distant future. We are all going to be 
depending on an excellent highway infrastructure, surface 
transportation infrastructure.
    Regarding the commission, I can assure you that Secretary 
Mineta, the White House, and I are all very interested and are 
watching and moving the nomination process forward for the 
appointees that will come out of the White House here in the 
not too distant future. We are thinking that we can say by the 
middle of May, within 6 weeks that we will be seeing the 
nominations emerge.
    It is vital that we have the right people. As you and the 
members of the committee and others have identified your 
nominees, the White House is also being very deliberate and 
careful in conducting the appropriate background checks to 
ensure that we have the right folks there.
    Regarding the support that Federal Highways will provide to 
these commissions, it is also extremely important that the 
commissions are readily armed with the information, the data, 
and the analysis that will be required to investigate the many 
alternatives that will be presented to them as to where the 
future of surface transportation will go.
    Senator Inhofe. I was going to ask you, the report is due 
in July 2007, 15 months from now. Do you think that getting the 
confirmation of these people is going to give you adequate time 
to do that? One of the things that we don't like in this 
committee both Democrats and Republicans, is when we establish 
a deadline and then we don't meet that deadline. Do you feel 
committed right now to reaching your conclusions, giving a 
report by the deadline of July 2007?
    Mr. Capka. Sir, we are committed to providing those results 
by July 2007.
    Senator Inhofe. Okay. General, in your career with the Army 
Corps and since you have managed several major projects such as 
that that was referred to by Senator Bond, the Big Dig in 
Boston, what was your role and what did you achieve in leading 
that effort? How can you use these experiences to improve 
FHWA's project oversight?
    Mr. Capka. Yes, sir, I appreciate your question and 
understand the importance of you reviewing my credentials for 
this position. Certainly, the position that I held in Boston as 
the Chief Executive Officer for the Massachusetts Turnpike 
Authority was a very responsible position.
    I was hired in the year 2000 and selected by the Governor, 
and, at the time, reported to a board of directors of three 
members. The goals that I was given at the time, because of the 
significant cost overruns that had seemed to plague the 
project, and most recently up to that point unexpectedly, I was 
given the challenge of getting my arms around what it was going 
to take to complete the project in terms of cost, to develop a 
budget, and then to focus on the ongoing and future work of the 
Big Dig project, to get it completed as efficiently as we 
could.
    Shortly after I got there, I reviewed the project cost 
history. I looked at the work and the risks that remained in 
front, and developed a new estimate, which I presented to the 
members of the State legislature, to the Governor's office, and 
to my board of directors. The estimate that was developed at 
that time, and that I released in the summer of 2001, remains 
true to today. I am very proud of the fact that we were able to 
nail that and allow the project to be completed under that 
estimate.
    I also worked on management controls to ensure that we 
maintained close tabs on costs as cost data came in and 
requirements for management intervention popped up. So we had 
the controls in place. We had a good budget to work from, and 
we had the resources to complete it.
    In March 2001, after I had put the controls in place and 
nailed down the budget, the Department of Transportation 
Inspector General called for a meeting of the Massachusetts 
delegation here in Washington, where he complimented the work 
that I had accomplished, which I believe he said was improved 
by more than 1000 percent of what he had seen before, and 
subsequently called off a number of the investigations that the 
IG had underway at the time. I was very proud to be there with 
the Massachusetts delegation and the Federal Highway 
Administrator to receive that report from the Department of 
Transportation IG.
    It ensured us that the finance plan would be approved, 
which again provided the continuing Federal funding for the 
project, which was critical at that particular point in time. 
Lessons were learned on the project that I could only learn 
personally by being part of it. Secretary Mineta and 
Administrator Peters asked me to come to Washington to be in a 
position where I could share those kinds of lessons with other 
very large undertakings around the country. We have been doing 
that ever since I have been there.
    I am proud of the management and I am proud of what I have 
been able to achieve. Sir, if confirmed, I will continue to 
work with you and make those improvements as we move forward.
    Senator Inhofe. Thank you, General Capka.
    Senator Jeffords.
    Senator Jeffords. Mr. Capka, while their estimates differ 
slightly on the date, both the Congressional Budget Office and 
the Treasury Department project dire near-term financial 
straits for the Highway Trust Fund. Given our current level of 
investment, the Treasury Department estimates the fund will be 
insolvent before the end of this authorization period.
    This problem is not unique to the Federal program. In my 
home State of Vermont, State legislators are looking for ways 
to pay for needed infrastructure improvements including raising 
the gas tax. Does your vision for the future financial health 
of the Federal aid program include raising the gas tax, more 
innovative financing, increased opportunities for public/
private partnerships, or some combination of alternatives?
    Mr. Capka. Senator Jeffords, thank you very much for that 
observation. In fact, it puts an exclamation point behind the 
discussion we had about the importance of the committee that is 
being formed to look at the future of the Highway Trust Fund.
    With respect to the situation with the Trust Fund today, if 
you recall, it was our intent to bring the Trust Fund down to 
zero at the end of the SAFETEA-LU period. We have done that. 
The Treasury has said we may be a little bit below, on the 
order of $2.3 billion. The Congressional Budget Office has 
provided estimates that say we will be a little bit above. So I 
think the estimate is within the margin of error that tells us 
that, yes, we are going to be tangent in the Trust Fund at the 
end of the period.
    There are opportunities for us to adjust as we go forward, 
and with the budget 2008 coming up next year, we will have an 
opportunity to look at it again. We will maintain a close 
finger on the pulse of what is happening, and I will assure you 
that if confirmed, I will not let the issue out of my sight.
    As far as the future, and I think it also puts an 
exclamation point behind the fact that perhaps we have relied 
too much on the Trust Fund up to this point, we are going to 
have to look for additional innovative sources of revenue to 
keep the Nation's highway infrastructure in good shape and to 
improve it where it needs to improve. Yes, sir, the innovation 
that I referred to in my remarks applies specifically to where 
we look for these additional sources of revenue to do our work.
    If confirmed, I will continue to seek those innovative 
solutions for you.
    Senator Jeffords. Thank you.
    In the recently passed Transportation bill, Congress 
granted States more flexibility in the types of stormwater 
mitigation projects eligible for Federal aid funds and accounts 
used to pay for these projects. Based on your experience with 
the corps, can you comment on how the Federal aid highways 
might impact water quality in surrounding water bodies, and why 
you believe it is important to address these water quality 
impacts on both new construction and older existing highways?
    Mr. Capka. Thank you, sir, for that question.
    As we all know, projects and our highway system, just by 
virtue of the fact of where it goes and why it needs to go to 
the various places that it serves, it does and will have an 
impact on the environment. The impacts are many. Stormwater 
impacts are one of those, and very certainly we need to 
evaluate the impacts and address them so that the economy is 
enhanced and not harmed.
    If confirmed, I will continue to work with you and the 
members of this committee to identify those problems and to 
determine the best way of investing our resources.
    Senator Jeffords. Thank you very much for that answer, sir.
    Senator Inhofe. Senator Lautenberg?
    Senator Lautenberg. Yes, thank you, Mr. Chairman.
    Mr. Capka, as I indicated in my opening remarks, I am very 
much concerned about the commitment to New Jersey on the multi-
year funding. Generally speaking, does the Administration 
believe that multi-year funding is an appropriate financing 
mechanism or doesn't it?
    Mr. Capka. Thank you, Senator Lautenberg.
    As you had pointed out in your opening remarks, we had a 
very productive session with the commissioner of the New Jersey 
Department of Transportation and his staff and our staff at 
Federal Highways yesterday. We readily recognize that we need 
to maintain open communications to ensure that both we at the 
Federal Highway level and at the State Department of 
Transportation level are working together to ensure the proper 
stewardship of the resources that are entrusted to us, and to 
meet the needs of the citizens of New Jersey.
    So we are moving in that direction.
    Senator Lautenberg. Can we be more specific, Mr. Capka, and 
say that you worked out an arrangement with New Jersey 
Transportation Commissioner Lettiere last year regarding the 
use of multi-year funding, and I just want to be sure that if 
the money is committed for the first 2 years--2006 and 2007--
and reasonably available in later years, would you as head of 
the FHWA continue to approve New Jersey's State transportation 
plan, which incorporates these multi-year funding projects, 
similar to Pennsylvania, by the way?
    Mr. Capka. Sir, we have not backed away from the commitment 
that we made to New Jersey this past fall when we were working 
through some very challenging financial situations in the State 
of New Jersey. We have not backed away from that and will hold 
true to our commitment.
    We will look to the outputs of the plans that are submitted 
by New Jersey and work with New Jersey to ensure that they meet 
the requirements of the legislation, our authorizing 
legislation, and Title 23.
    Senator Lautenberg. They have taken pains to do that. You 
know, we have a new Governor who used to serve here. He is 
aware of the fact that we have got to keep our transportation 
funds available and plan to do that.
    I wanted to ask you this question. The job you undertook up 
in Massachusetts, you were the CEO of the corporation that was 
running that job, the Massachusetts Turnpike Authority.
    Mr. Capka. That is correct, sir.
    Senator Lautenberg. You were in charge. Now, that job, 
complicated I will admit, but I think in its final analysis 
came out to be a pretty significant addition to the functioning 
of Boston in that area. However, there was a significant 
overrun there. I think it was about $500 million-plus during 
your service as the CEO there. How did that come about, Mr. 
Capka?
    Mr. Capka. Sir, when I arrived in Boston in December of 
2001, January of 2001, the estimate for the project was at 
$14.075 billion. I immediately undertook a review of the cost 
history, a review of the project status and the risks that were 
ahead, and revised the estimate at that time to $14.475 
billion.
    That was based upon my assessment right after I arrived in 
Massachusetts. That particular estimate has held true to today. 
There has been an adjustment that was requested from the 
Inspector General as an accounting adjustment, but was not a 
requirement for additional resources or wasn't any additional 
cost. It was merely an accounting adjustment that brought it up 
to what you will see today, $14.625 billion. That is correct. 
Yes, sir.
    Senator Lautenberg. Yes. So was it an uncontrollable 
expansion of costs?
    Mr. Capka. Sir, in my review of the cost, it was the 
situation that existed when I arrived in Massachusetts and 
reflected what had brought the project to where it was at that 
point in time, and what I estimated it would take to complete 
the project. So it was a point in time that I adjusted finally 
the estimate for that job.
    Senator Lautenberg. If I may digress for a moment, Mr. 
Chairman, I am sorry that our friend isn't here from Montana, 
Senator Baucus, because he talked about Glacier National Park, 
which was a beautiful sight when I went there. But the bad news 
is that one of the biggest glaciers in that park has lost 90 
percent of its mass, and park scientists predict that if global 
warming trends continue, the Grinnell Glacier in the park will 
be gone by 2032.
    In 1850, there were 150 glaciers in the park. Now there are 
27. This has nothing to do with General Capka, but it was an 
observation that I wanted to note as we talked to some of the 
other candidates here, that the glaciers are rapidly 
disappearing. One can debate all they want, but the result of 
global warming is definitely there and we ought to be looking 
at ways to control the car emissions that we have in our 
society.
    Mr. Capka, I am sorry to run over a minute.
    Senator Inhofe. Two minutes.
    Senator Lautenberg. Two minutes over?
    There is such a kind, generous Chairman in this committee.
    [Laughter.]
    Senator Lautenberg. I am overcome with emotion.
    So Mr. Capka, you have had a lot of experience. You have 
served your country well. I am relying on you, based on your 
affirmation just now, that we won't run into any problems with 
our funding. That is an agreement that you have established, 
and I heard your qualifying it, but we hope that there will be 
no problems. Our highway system is just as important to New 
Jersey as it is in Montana or any of the other States. As a 
matter of fact, we spend more time, Mr. Chairman, in our cars 
going places than they do in Montana. Sometimes it takes us a 
couple of hours to go five miles, so we are in that car, we 
love it, and we want the highway to be in good shape to support 
it.
    Thank you very much.
    Senator Inhofe. Thank you, Senator Lautenberg.
    I wouldn't want my silence to in any way infer that I agree 
with the good Senator from New Jersey. When in fact the 
glaciers you are referring to, whether you are talking about 
those glaciers or the Arctic or the Antarctic or Greenland, the 
science quite frankly does not come to the same conclusion that 
you do. While sometimes there is a receding around the edges 
such as Greenland, it is actually thickening in the middle. In 
terms of Antarctica, the trend is it has been much colder than 
warmer in the last 40 years.
    General we appreciate your responding to our questions. I 
would ask Senator Voinovich if he has any questions for you.
    Senator Voinovich. All I would like to say is that I really 
enjoyed visiting with you yesterday, and I am pleased that 
someone of your capability and background is willing to take on 
this new role. It is very, very important to the future of our 
country.
    Mr. Capka. Thank you, Senator Voinovich. I really 
appreciate that. I also enjoyed you sharing your time with me 
yesterday afternoon.
    Senator Inhofe. I agree with Senator Voinovich.
    We will excuse you at this time. Thank you very much for 
your appearance.
    We ask our second panel to come forward. Our second panel 
is James Gulliford, nominated to be Assistant Administrator of 
EPA, and William Wehrum, nominated to be Assistant 
Administrator of EPA.
    Let me first of all get the required questions out of the 
way. If you would please respond, each one of you, to these two 
questions.
    Are you willing to appear at the request of any duly 
constituted committee of the Congress as a witness?
    Mr. Gulliford. Yes, I am.
    Mr. Wehrum. Yes, Senator.
    Senator Inhofe. Do you know of any matters which you may or 
may not have thus far disclosed that might place you in any 
conflict of interest if you are confirmed to this position?
    Mr. Gulliford. Mr. Chairman, there are no such matters.
    Mr. Wehrum. No, Mr. Chairman.
    Senator Inhofe. All right. I would like to ask each of you 
prior to your opening statement if you have any members of your 
family here. Please feel free to introduce them, and we will 
begin with you, Mr. Gulliford.
    Mr. Gulliford. Mr. Chairman, I do have two members of my 
family, my wife Von is with me, and my daughter Keri.
    Senator Inhofe. Where are they? All right. Which one is 
your daughter?
    [Laughter.]
    Mr. Gulliford. The taller one.
    Senator Inhofe. I see. All right. You are recognized for 
your opening statement.

 STATEMENT OF JAMES B. GULLIFORD, NOMINATED TO BE AN ASSISTANT 
      ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

    Mr. Gulliford. Thank you, Mr. Chairman, Senator Jeffords, 
members of the committee.
    I am honored to appear before you today and I am seeking 
your confirmation to serve as Assistant Administrator for the 
Office of Prevention, Pesticides and Toxic Substances. It has 
been my pleasure to serve as EPA Region VII Administrator for 
the past 4\1/2\ years, and it is truly an honor to have the 
support of President Bush and Administrator Johnson to serve 
the American people in this new capacity.
    I also want to thank Senator Bond for his kind 
introduction. It has truly been a pleasure to transfer fairly 
deep roots from the State of Iowa to the State of Missouri and 
I enjoy living there now.
    The environmental challenges we face today are complex. 
They demand a focused and unyielding commitment to fully 
understand the issues, to seek solutions and to facilitate 
change. I believe that working together with Congress, the 
States, the regulated community and the public interest 
community, that we can accelerate our environmental progress, 
foster a strong and vibrant economy, and assure that our 
citizens enjoy a safe and healthy environment in which to live, 
work and play.
    I am dedicated to that belief, and the knowledge and the 
experience that have brought me here today will serve me and 
the environment well. I bring a strong and abiding respect for 
America's natural resources. I majored in forestry management 
at Iowa State University. In addition to a forestry traditional 
curriculum, I minored in agronomy, recognizing the importance 
of soil science, of nutrient management and soil conservation.
    My MS in forestry economics and marketing added additional 
tools to help solve complex environmental and natural resource 
management problems.
    Before coming to EPA, I worked for 25 years in the fields 
of mine reclamation, soil conservation and water quality 
protection. I understand well the complexities of natural 
resource management. I also bring a healthy appreciation for 
the work of OPPTS, and office that is at the forefront of 
protecting public health and the environment.
    Growing up west of Chicago, my anticipation each summer was 
for several weekend camping trips and one major family vacation 
visiting any number of our Nation's national parks. Hiking, 
camping and seeing the incredible beauty of our country sparked 
my interest and my career in natural resource management and 
environmental protection. My wife Von and I chose to pass those 
same experiences, the love of the land, on to our children as 
well. With my son Jason, I backpacked the Sierras, I canoed the 
Boundary Waters, and I have hiked the Grand Canyon.
    If I am confirmed for this position, I know that I will be 
stepping up to the plate on a number of strategically important 
environmental issues, issues that are important to many members 
of this committee. These include pesticide registrations, the 
challenges of lead, and endangered species, just to name a few.
    I can say unequivocally that I will approach each of them 
with an open mind, a commitment to fully understand and 
appreciate all sides of an issue, and most importantly, with 
the paramount objective of protecting public health and the 
environment.
    I will use the best and most appropriate tools to get the 
job done. If a regulatory approach makes sense, that is what I 
will choose. If I can get the job done quicker and more 
efficiently by advocating a stewardship or partnership 
approach, then I will proceed down that path. If a combination 
of tools makes the most sense, I will move in that direction.
    I believe that this job requires flexibility, creativity, 
common sense and I believe that I bring those skills to the 
job.
    Finally, I want to close by acknowledging the importance 
that my family's love and support means to me in this work. I 
am blessed that my family, my parents, continue to live healthy 
productive lives back home in Illinois, and the values and 
training that they have given me over the years continue to be 
central to my being.
    My daughter Keri is a constant example of strength, 
character and determination as a nurse in a neurosurgeon's 
office and as a part-time student, finishing her bachelor's 
degree. My son Jason is one of the finest, caring young men I 
know and a great outdoor adventure partner. He and his wife 
Heidi are beginning their life together and constantly remind 
me why the work that we do today to assure a safe, healthy 
future of our planet is important to young people that are just 
beginning their lives together.
    Finally, the love, the strength and partnership of my wife 
Von inspires and sustains me. With this support, I am confident 
that if confirmed as Assistant Administrator, my service will 
reflect positively on my family and the needs of all families 
who rely on OPPTS and EPA for a safe, healthy environment.
    Thank you for the opportunity to appear before you today. I 
am happy to answer your questions.
    Senator Inhofe. Thank you, Mr. Gulliford.
    Mr. Wehrum, start with your family. Do you have any family 
here today?
    Mr. Wehrum. Yes, I do, Mr. Chairman, and thank you for 
that. First, I will note my wife unfortunately was not able to 
be with me today. She had a higher calling, but I know she is 
watching over the webcast, and I certainly appreciate her 
support and patience over the past few years and hopefully for 
another couple.
    I am joined by my mother, Mary Ann; my two twin sisters, 
Lisa and Laura; my brother-in-law Van; and I think most 
importantly, two nieces, Katy and Sarah from Bowling Green, KY; 
and two nephews, Matthew and Coleman from Nashville.
    Senator Inhofe. I want each one of you to hold your hand up 
anyway, so we can figure it out. All right. Thank you for being 
here today.
    Mr. Wehrum. I appreciate their support.

 STATEMENT OF WILLIAM L. WEHRUM, NOMINATED TO BE AN ASSISTANT 
      ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

    Mr. Wehrum. Mr. Chairman, Senator Jeffords, members of the 
committee, thank you for the opportunity to testify before you 
today as the nominee for the position of Assistant 
Administrator of Air and Radiation at the U.S. Environmental 
Protection Agency. I am grateful to President Bush for 
nominating me for this position and I appreciate your 
consideration.
    President Bush has provided consistent and clear 
expectations to Administrator Johnson at EPA to accelerate the 
pace of environmental progress, while maintaining our Nation's 
economic competitiveness. We have taken this task to heart in 
my time at EPA and I am proud of what we have accomplished.
    The air is cleaner today than it has been in generations. 
EPA programs have resulted in a substantial reduction in air 
pollution and correspondingly dramatic improvements in air 
quality. Much of this progress is attributable to the good work 
of those who came before us over the past 35 years of EPA's 
history, but under the leadership of President Bush, and due to 
the hard work of my predecessor and EPA career staff, we have 
made significant progress during my tenure.
    Perhaps highest on our list of accomplishments is the Clean 
Air Interstate Rule. This standard will reduce emissions from 
powerplants by millions of tons, help solve some of the 
toughest and most persistent air quality problems in the 
Nation, and deliver the largest health benefits of any EPA rule 
in more than a decade.
    Other notable rules include the Clean Air Mercury Rule, the 
Clean Air Visibility Rule, and the Non-Road Diesel Engine Rule. 
These rules will assure continued significant progress toward 
cleaning our air. If confirmed, I promise to build on these 
successes.
    Mr. Chairman, I am appreciative of this committee's efforts 
to pass Clear Skies legislation. Similar to the President and 
Administrator Johnson, I believe enactment of legislation to 
reduce and cap emissions of sulfur dioxide, nitrogen oxides and 
mercury from powerplants is a priority, and I intend to work to 
that end.
    Other near-term priorities will include the renewable fuel 
standard, a standard for locomotive and marine engines, and the 
review of the particulate matter, ozone and led national 
ambient air quality standards.
    My priorities also include the continued growth of our many 
successful voluntary and public/private partnership programs. 
Perhaps the best example is the Energy Star Program. Last year 
alone, Americans with the help of Energy Star prevented the 
release of 334 million metric tons of greenhouse gas emissions, 
equivalent to the emissions from 23 million vehicles and saved 
about $12 billion on their utility bills.
    These programs are particularly noteworthy because they 
accomplished significant improvements in human health and the 
environment, but do so in a collaborative way, rather than 
through our usual regulatory approach.
    All of these efforts will be guided by the goal of 
protecting human health and the environment, but doing so in 
the smartest and most efficient way possible.
    I believe that I am well qualified for this position. I 
started my career as a chemical engineer, and most of my time 
was spent in a specialty chemical plant. I had responsibility 
for implementing a multitude of health, safety and 
environmental rules that applied to our operations. I became 
acutely aware of the value of clear and concise rules, which 
are particularly important to the operators, engineers and 
maintenance crews directly responsible for actions needed for 
day-to-day compliance.
    I also experienced first-hand the frustration and challenge 
of de-coding complicated rules that sometimes seem to be 
written without apparent understanding of the real consequences 
for those who are required to implement them in the field. This 
work inspired me to pursue a law degree which I obtained by 
attending classes at night, while still working in the plant 
during the day. I was fortunate to have the opportunity after 
graduation to come to Washington to work with two top-flight 
law firms. I learned not only the business of law, but also the 
complex legal and policy questions that drive the regulatory 
process.
    I worked extensively with EPA and came to appreciate the 
dedication and energy that motivates EPA employees and moves 
our Nation toward continuing environmental progress.
    I was given the opportunity to join EPA in 2001. I came on-
board as Counsel to the AA for Air. In that capacity, I had the 
privilege of advancing some of the greatest environmental 
issues of our day. I consider it a rare privilege to now have 
the opportunity to serve as Assistant Administrator.
    I will close by saying that I have an added interest in 
clean air both by vocation and avocation. Running is one of the 
few pastimes I have that has survived the last few years of 
engineering, law school, law practice and government service. I 
run well over 1,000 miles in a typical year, and most of this 
within inches of major roadways here in the DC area.
    I can tell you this experience has indelibly impressed upon 
me the need for and value of clean air. The occasional smoking 
truck or bus and the occasional smoking stack are stark 
reminders to me of the progress we have made and the challenges 
that remain.
    Mr. Chairman and members of the committee, I thank you 
again for the opportunity to be here, and I am happy to answer 
any questions that you may have.
    Senator Inhofe. Thank you very much, Mr. Wehrum.
    I will go ahead and start. We will only have one round of 
questions because of our timing.
    Mr. Gulliford, last year, the Administration published a 
rule reiterating years of Federal policy that pesticide sprays 
did not have to have NPDES permits for pesticide sprays if they 
did it in accordance with FIFRA, the approved labels. As you 
know, I have introduced legislation to codify the policy with 
some important modifications in statute.
    If I had all the faith in the world that we would have a 
permanent rule on this, it might not be necessary. I would just 
ask you, do you know what the status of this rule is and 
whether or not you support its finalization?
    Mr. Gulliford. Yes, Mr. Chairman. The Agency did establish 
a position that pesticides applied in accordance with the FIFRA 
recommendations on, near or adjacent to waters need not have 
NPDES permits. That is the Agency's position. The rule has been 
proposed. I don't know the exact timetable for completion of 
that rule, but I would be happy to get back to the committee 
with that.
    Senator Inhofe. For the record, if you could do that, I 
would appreciate it.
    Mr. Gulliford. I will do that.
    Senator Inhofe. Mr. Wehrum, there have been assertions made 
by Senators Lautenberg and Boxer in their opening statements 
that the EPA management instructed staff to develop a maximum 
achievable control technology, the MACT standard for mercury 
that would result in the emission of 34 tons annually. It is my 
feeling that the EPA developed this rule, no commercially 
demonstrated mercury technology was in use at any coal-fired 
powerplants across the country, but the MACT rule must be based 
on actual emissions reductions already achieved at the best 
plants. So clearly, the EPA had to base its rule on the level 
of reductions achieved as a co-benefit of the controls 
installed to reduce sulfur dioxide and nitrogen oxide within 
each subcategory evaluated.
    I would ask you, how did you determine the emissions for 
the purpose of the mercury MACT? Was this something that was 
dictated prior to the study taking place?
    Mr. Wehrum. Thank you, Mr. Chairman, for your question.
    I will start by saying, as I indicated in my remarks, the 
Clean Air Mercury Rule as we came to call the final regulation, 
we hold that as one of the most significant accomplishments of 
this EPA, our office, and this Administration as it relates to 
clean air. It is the first-ever regulation in the world to 
regulate mercury emissions from coal-fired powerplants, and we 
are quite proud of the progress that we have made, and we are 
quite proud of the reductions that will be achieved through 
that regulation. It was a substantial undertaking. The issues 
were quite complex and we feel like we did a very good job on 
that rule.
    As you alluded to in your question and in response to your 
particular question, Mr. Chairman, it was very important to us 
that the proposed MACT standard be based on a thorough analysis 
of what we believe could in fact be accomplished by the better-
performing sources in the category, as the law requires. That 
was the law. That is what we attempted to do in structuring the 
proposed rule, and I believe we accomplished that.
    Senator Inhofe. Thank you.
    I know you addressed this, but I would like to get down to 
the specifics of the assertion that was made by two individuals 
up here in opening remarks that the EPA prematurely disbanded 
the Mercury Federal Advisory Committee Act, FACA, and did not 
provide all cost-benefit modeling information promised to the 
group.
    One of my staff members was 1 of the some 50 people that 
participated in FACA. It is my understanding that FACA met for 
almost 2 years and had more than a dozen meetings and many 
dozens of sub-group meetings. Few clean air advisory groups 
have ever met so frequently or produced so much work for EPA to 
consider. I would challenge some of those who don't agree with 
that to show me where there has been one that has exceeded the 
scrutiny that this has.
    It is my understanding also that the Inspector General 
failed to report that most members of the FACA process believe 
that the issue was discussed thoroughly and it was not until 
after the conclusion that a minority of members wanted to 
reopen the process. That was Nikki Tinsley, a Clinton 
appointment. It is my understanding that she did not interview 
all the members of FACA, but only those individuals who were on 
that letter, some 15 out of the 50. That is my understanding, 
that they met for more than a dozen day-long meetings, and had 
many sub-group meetings and so forth.
    I would ask you, did the Inspector General interview every 
member of FACA? If not, could that oversight have influenced 
the findings of the report?
    Mr. Wehrum. Mr. Chairman, let me start again by saying we 
are indebted to the work of the FACA. That group did in fact 
meet over an extended period of time. They were given an 
important task, which was to help us understand the nature of 
the mercury emissions problem from domestic coal-fired 
powerplants.
    As I mentioned a moment ago, the issues are complex. The 
information is voluminous and complicated, and they were very, 
very helpful to us in understanding what the issues are and 
ultimately in issuing a report at the end of their work which 
made a series of recommendations. The group was not able to 
reach a recommendation supported by every member of the 
committee, so the report reflected a variety of positions that 
were supported variously by sub-groups within the total FACA.
    Senator Inhofe. But part of the question I asked you is 
whether or not the Inspector General did interview all members 
of FACA.
    Mr. Wehrum. Not to my knowledge, Mr. Chairman.
    Senator Inhofe. All right.
    Senator Jeffords.
    Senator Jeffords. Bill, the Clean Air Scientific Advisory 
Committee has now indicated twice that the annual standard for 
particulate matter should be lower. EPA in its proposed rules 
declined to accept that advice. Is there a scientific or public 
health reason for disregarding the Advisory Committee's advice?
    Mr. Wehrum. Thank you for your question on that important 
topic, Senator Jeffords. I often tell people there is not a 
single more important issue that we will deal with in the next 
couple of years at EPA, in the Air Program at least, than the 
review of the particulate matter ambient air quality standards. 
It is an enormously important review and one that we take very, 
very seriously.
    What I can tell you, and what I am sure you know, Senator, 
is that while a tremendous amount of work has been done already 
to get us to where we are in the review process, and that 
includes substantial effort invested in compiling science and 
understanding the nature of the science, and developing policy 
recommendations for consideration by myself and Administrator 
Johnson, we are still only at the proposed rule stage. The 
comment period is still open, as a matter of fact.
    So the proposal includes, and we thought it was very 
important that it include a particular proposed level for each 
of the various PM standards that we tentatively believed was 
correct, and that the Administrator tentatively believed was 
correct as of the time of the proposal, based on our 
understanding of the science and the relevant policy issues.
    We also felt it was very, very important in this proposal, 
Senator, to reflect the fact that there is a diversity of 
opinion among very knowledgeable and informed people on what 
the right standard should be and how they should be supported 
and how we should interpret and apply the science.
    So our proposal includes a range of other alternative 
outcomes that we know various folks support. We did that so 
that we could solicit good, solid public information and 
additional data and public comment, and have the benefit of 
that later this year when we have to bring it together and 
consider that information and make a final decision.
    So Senator, we have enormous respect for CASAC. They play a 
very, very important role in the NAAQS review process. We take 
their advice very, very seriously, but the short answer to your 
question is, at least with respect to the proposed primary 
approach in the regulation, it differed from the CASAC 
recommendations in some respects. That is exactly right, 
Senator.
    Senator Jeffords. As reported in yesterday's New York 
Times, the EPA is developing a proposal to amend the rules 
relating to toxic air pollution. A memo from the EPA regions 
raises numerous questions about the legality and wisdom of this 
approach. I am going to assume that you were aware of this 
proposal prior to yesterday, unless you tell me differently 
now.
    Mr. Wehrum. I was aware of it, Senator, yes.
    Senator Jeffords. With regard to this proposal, will it 
require additional reductions in toxic air pollutants beyond 
current rules? Or will it allow additional emissions of toxic 
air pollutants when compared to current rules?
    Mr. Wehrum. Senator, again you have asked a highly relevant 
question, particularly in light of the articles that were 
published yesterday about this draft proposed regulation. This 
is a draft proposal that has been underway for some time within 
our office. In fact, work to my recollection began almost 2 
years ago when we first began talking about the possibility of 
conducting a rulemaking to establish within our rules itself a 
method for addressing this particular issue.
    The Agency has spoken to the question in the past and in an 
interpretive memoranda issued by our predecessors a number of 
years ago now, took a position that many people support and 
many people believe is not the correct position to take on this 
particular issue.
    So it is my belief that it is important for an issue of 
this nature to be codified in our rules. We should not rely on 
interpretive guidance documents for important interpretations 
like this. Part of the value of that is that people can pick up 
the rule book and know what they have to do, and not have to 
rely on guidance memoranda that exist in other places and that 
are sometimes difficult to find.
    But also, it is important to go through the public comment 
process and the notice and comment rulemaking process because 
that lets everybody with an interest in these issues to offer 
us their thoughts and we have the benefit of those thoughts as 
we take final action. So we have not even yet proposed this 
regulation, Senator.
    When we propose, and I hope we propose the regulation 
sometime soon, we look forward to receiving the public comments 
so that we understand the diversity of views, we understand 
better the kind of concerns that were expressed in these 
newspaper articles, and have the benefit of that as we decide 
what kind of final action to take.
    Senator Jeffords. Again, I understand there may be more 
recent documents related to this proposal than were discussed 
in yesterday's articles. Will you provide those documents to 
the committee as part of your nomination process?
    Mr. Wehrum. Senator, I would be happy to work with you and 
to work with your staff in identifying relevant documents and 
talking about what we may be able to provide you.
    Senator Jeffords. I appreciate that response very much. 
Thank you.
    Mr. Wehrum. Thank you, Senator.
    Senator Inhofe. Thank you, Senator Jeffords.
    Senator Voinovich.
    I quite often say when I am turning it over to Senator 
Voinovich, he is probably the most knowledgeable person on this 
committee on air issues. He headed that committee when he was 
Governor of Ohio, and actually testified before this committee 
in that capacity.
    Senator Voinovich.
    Senator Voinovich. Thank you, Mr. Chairman.
    First of all, Mr. Wehrum, I want to thank you very much for 
sticking with this Agency and not tipping your hat and leaving 
it. You have been there since 2001. You would like to be 
appointed to head up the Air Office. You and I have talked, and 
in all probability you are going to take a lot of flak from 
some of the members of this committee, and they are going to 
probably stop you from getting it, and the President will 
probably have to give you a recess appointment.
    But I want your family to know how much I really dearly 
appreciate the sacrifice that this young man has made for our 
country. I want you to know that. If you read about stuff in 
the paper about this and that, let me tell you, this is a good 
man. I worked with him on Clear Skies and he put in hour after 
hour after hour, an honorable man.
    The record of that Agency may be controversial, but the 
fact of the matter is in terms of our mercury rule, we are the 
first Nation in the world to have a rule dealing with mercury. 
It is a reasonable rule, even though some of the members of 
this committee may not agree with it.
    I am also Chairman of the Clean Air, Climate Change and 
Nuclear Safety Subcommittee. Even though the Chairman and I 
have a little difference of opinion about the issue of climate 
change, we have a situation in this committee where one of the 
members thinks it is the worst problem facing the world, and 
the Chairman has said on a couple of occasions that it is a 
hoax.
    But the fact of the matter is, that this Administration has 
done more to deal with climate change than any government in 
the world. The money that we have spent dealing on technology 
and so forth to deal with climate change shows that we are 
doing something. We provide more money to the United Nations 
probably more money for climate change than all of the rest of 
the members of the United Nations.
    So I think that it is a record that you ought to be proud 
of. It doesn't mean that there isn't room for improvement.
    Now to the issues that I have. No. 1, is I think that the 
Agency has got to do more about getting the word out about what 
you indeed are doing. I know that is public relations, but I 
think it needs to be put forward. I would like you to answer 
the question as to what you can do to try and clarify more to 
the public what you are actually doing, and your sincerity 
about cleaning up our environment and air and the world's air.
    The second issue is the one that Senator Inhofe and I have 
been working on for a long time, and that is to somehow 
harmonize our environment, our energy and our economy. I am 
very, very worried about where we are going in regard to that 
issue because today if you look at the testimony that I read 
before the Foreign Relations Committee, and by the way, that is 
where I was. We are talking about a new relationship with India 
dealing with nuclear power. This country is more reliant today 
than ever before on foreign oil. The demand for oil is up 
dramatically, actually a 40 percent increase because of China. 
The sources of it are less reliable than ever before.
    We are really in a very, very vulnerable position. In the 
area of natural gas, we have the same thing. We have seen 
industries close down, move to other places like the fertilizer 
industry. In other words, what has happened here is that for 
some reason this Nation, I think it is myopic, hasn't 
recognized that somehow we have to get to the table and work 
together for our economy and for our national security.
    I would like to find out from you, what are you going to do 
in the 2\1/2\ years you are going to have, to try and get these 
folks to the table to start to put each other's shoes on and 
realize that if we don't start working together, God help this 
country. A Stanford report said that in the next 10 years, 
there is an 80 percent chance of a crisis in the area of oil 
that could bring us to our knees.
    It is a very serious issue today, and we are dealing with 
these problems, in due respect to Senator Jeffords, like we 
used to deal with them, Jim, 10 years ago or 15 years ago. But 
the world has changed. What are you going to do about it?
    Mr. Wehrum. Senator Voinovich, first I want to thank you 
for your kind words. I appreciate your support. I think we have 
done a lot of good work so far and I look forward to continuing 
that trend over the next couple of years.
    In response to your first question about public relations 
and trying to get the message out, that is a very important 
issue for us. I will be honest and say something that 
frustrates me, but also energizes me about these issues is that 
on the one hand people care and they care passionately about 
environmental issues, and that animates the public debate, and 
that is part of why I like to do what we do here, because these 
issues matter to people.
    On the other hand, what frustrates me is much of the public 
debate to my mind is misinformed. People don't understand all 
the facts. They are relying on limited information and limited 
voices and limited perspectives. So I think that one of the 
most important things we can do at EPA is just get full 
information out there, make sure that people understand the 
issues, and have the information that is necessary to evaluate 
those issues, and then the chips fall where they do.
    There will always be divided minds on the issues we deal 
with, but that is part of what makes this country strong and 
this country great, because we can have these debates. We can 
feel very passionately, and at the end of the day we pick a 
path and we go, and we make real progress.
    With regard to energy security and just striking a balance, 
I believe that is enormously important. I think our record to 
date reflects the efforts that we have made in that regard. The 
Clean Air Interstate Rule is a great case, a great example of 
that where public health demands significant reductions in 
emissions from SO2 and NOx and mercury from 
powerplants. But the public health and the good of society 
demands that we have a reliable power supply and an affordable 
power supply to drive the economy, to drive businesses, and to 
allow people to lead lives with the quality that they do right 
now.
    So we worked very hard and care to establish appropriate 
limits, to make sure we protect human health and the 
environment, but to do it in the smartest way we possibly could 
and still get those results. We are very proud of those 
results, Senator.
    Senator Voinovich. My time is up.
    Senator Inhofe. Thank you, Senator Voinovich. Let me make 
sure that we are accurate in quoting what I have said about 
global warming.
    [Laughter.]
    Senator Inhofe. I didn't say it was a hoax. I said it was 
perhaps the greatest hoax ever perpetrated on the American 
people.
    [Laughter.]
    Senator Inhofe. I might also add in 1977 I used those same 
words for the same individuals who are now predicting that the 
world is coming to an end. Back then it was coming to an end 
because of an ice age that was coming. I said at that time that 
it was a great hoax.
    Senator Lautenberg.
    Senator Lautenberg. I am overpowered by your comments, Mr. 
Chairman.
    [Laughter.]
    Senator Lautenberg. Thanks very much. Despite our somewhat 
obvious differences in view, there is good friendship and good 
respect for each other, while I am sorry that the Chairman and 
some of the others don't see how right I am in my views.
    [Laughter.]
    Senator Lautenberg. Mr. Wehrum, was there a change in the 
targets for reductions of mercury that was recently put into 
place where it was expected or believed at one time that it was 
going to be a 90 percent reduction in 3 years, and now we are 
talking about a 70 percent reduction by 2018? What occasioned 
that change of view, can you tell me?
    Mr. Wehrum. Senator, when we proposed our clean air mercury 
rule, as we came to call it, we love our acronyms at EPA as you 
know, a CAMR rule. It included two distinctly different 
mechanisms of regulation. On the one hand, we proposed to 
regulate mercury emissions from powerplants using the authority 
of section 112 of the Clean Air Act. I was cautioned against 
charging out into the weeds, and I will try not to do that, but 
section 112 is the part of the Act that tells us to establish 
toxic air emission standards for various sources of pollution.
    The second and the alternative proposal was to regulate 
under section 111, which is the authority we use to set new 
source performance standards.
    Senator Lautenberg. Can we clarify and get to the specific 
targets, as opposed to quotes from the various sections? How we 
get there is my concern, how quickly we get there is my 
concern. So are these similar measurements? Are the reductions 
definable reductions? Are we talking about something that is 
measurable, something that is clear in its intent?
    Mr. Wehrum. Senator, I guess I would say this. Regardless 
of the mechanism used to regulate mercury emissions from 
powerplants, the actual way in which the mercury would be 
reduced is the same. We had to undertake a very complicated 
inquiry in preparing both of those proposed regulations as to 
how we thought mercury emissions could be reduced from 
powerplants in the relative near future, because that is most 
important for the toxics rule if we had chosen to do that. As 
you say, it would have required compliance by existing sources 
within 3 or 4 years.
    So we would have had to identify emissions controls that 
could be employed now, or close to now, for those powerplants, 
versus controls that might be available over a longer period of 
time because we believed and we ultimately promulgated a 
regulation based on the idea that we can regulate in phases 
over time, which is what we have tried to do in part to 
accommodate advances in technology and to allow those advances 
to be rolled out through the industry and used to meet later 
compliance obligations.
    So it is a complex area and we had to undertake a very 
intensive analysis, and that analysis is what caused us to 
propose what we did on the toxic side and to propose what we 
did on the mercury.
    Senator Lautenberg. Forgive the interruption, but I would 
ask that you submit something in writing to my office and to 
the committee in terms of how the variation developed, because 
it is a little complicated. I am very much results-oriented.
    Would the report that came out in the newspaper, the now-
infamous report as I hear it described here, there was 
considerable disagreement by the 7 of your 10 regional 
colleagues. Do you think that 70 percent of your field officers 
were wrong when they were critical of the attempt to lift the 
emissions controls on toxic chemicals?
    Mr. Wehrum. Senator, first to respond to your request. We 
would certainly be happy to work with you in providing 
additional information about the questions you raise as to how 
the mercury proposal was put together and the information we 
had available.
    Second, as I indicated a second ago, one of the great 
things, one of the great attributes of EPA is it still is a 
very collaborative work environment. We have a lot of very 
capable people, people who understand the issues and frankly 
people have diverse opinions on where we should go on these 
issues. You see that reflected in our policy debates. You see 
that reflected in the articles like you saw yesterday in the 
Post and the Times. But that is part of what makes us strong.
    We have the ability to accept diverse opinions. We have the 
ability to factor that into our decisionmaking and ultimately 
that does result in better policies, better regulations, and a 
better approach for the Nation. So I think you are seeing a 
great process in action, and as I said a little while ago, we 
haven't even proposed this rule yet. We are still working on 
the draft proposal. So I am hoping to get that done soon, and 
then I am hoping we can have the debate in earnest in public by 
way of the public comment period.
    Senator Lautenberg. Well, if I may just say, ``the Regional 
Offices therefore appreciate the opportunity to review and 
comment on the drafts. However, we are disappointed that the 
OAQPS formulated revisions to the OI/AI policy without seeking 
Regional input and was reluctant to share the draft policy with 
the Regional Offices. This trend of excluding the Regional 
Offices from involvement in rule and policy development efforts 
is disturbing.''
    Do you consult with the regional offices? Do you credit 
them? You said that individuals have diverse opinions and that 
makes it more challenging. I don't know. These are experienced 
people, are they not, who have had these important assignments 
in the field?
    Mr. Wehrum. Sure. We rely a lot on the efforts and the 
judgment of our regional offices. In fact, we have a structure 
in place by which we provide draft regulations of the sort that 
we are talking about here, to the regional offices for their 
review and for their input. That is a normal part of the 
process and that is the process that you see unfolding in front 
of you now.
    Senator Lautenberg. So then they are just plain wrong?
    Mr. Wehrum. Well, they care deeply about the opinion and I 
am glad they care deeply about the rule. I am glad they 
expressed their opinion and we are certainly going to make sure 
they have a seat at the table as we go forward, Senator.
    Senator Lautenberg. Thanks, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Lautenberg.
    Senator Carper.
    Senator Carper. Thanks, Mr. Chairman.
    I just want to ask Mr. Gulliford, how is the hearing going?
    [Laughter.]
    Mr. Gulliford. Senator, thank you for your question. It is 
going very well for me.
    Senator Carper. It is nice to have you here. I am sorry I 
didn't get to meet your family.
    Mr. Wehrum, I am delighted to have met part of yours. I 
understand your wife is from Delaware?
    Mr. Wehrum. That is correct.
    Senator Carper. I am sorry she couldn't join us today, but 
thank you for coming, and thank you both for your service to 
our country.
    Mr. Wehrum, last October, I am sure you recall, you joined 
Administrator Johnson and a number of your colleagues from EPA 
to make a presentation to this committee following a modeling 
that was done on Senator Jeffords' proposal for a multi-
pollutant bill, the Administration's proposal and a bipartisan 
proposal that I had worked on with a number of our Republican 
colleagues.
    One of the questions that has consistently come up since 
that presentation involved EPA's determination that under our 
bill, the Carper-Alexander-Chafee bill, that there would be 
about a $1 offset for a ton of carbon from our proposal.
    Let me just ask, do you have any idea how EPA came up with 
that conclusion?
    Mr. Wehrum. Yes, Senator Carper. The provisions in the 
Clean Air Power Act imposed mandatory carbon requirements on 
the power sector, but allowed that obligation to be satisfied 
by achieving offsets that could be obtained outside of the 
industry. So our estimate of the cost of the offsets that would 
be necessary for compliance was a dollar or two a ton. It was 
based largely on the fact that the powerplants could go off-
sector and find other ways to satisfy that obligation.
    Senator Carper. I think you may have answered this. Let me 
ask this anyway, what is it about our proposal that allows 
offsets to be purchased so cheaply, for example, compared to 
the cost of similar approaches, say, in Europe?
    Mr. Wehrum. Well, an excellent comparison is the Clean Air 
Power Act versus the legislation introduced by Senator 
Jeffords, which also included mandatory carbon constraints, but 
required those reductions to be achieved in-sector. We 
estimated that the cost of those provisions would be very high 
because it would require significant fuel shifting out of coal 
and into natural gas and other forms of generation that produce 
much less carbon.
    So that is a good basis of comparison, where the ability to 
go off-sector in your legislation resulted in an estimate of 
much less cost than the comparable, or at least similar 
provisions in Senator Jeffords' legislation.
    Senator Carper. So when you say ``off-sector,'' we are 
talking about the ability for an emitter, somebody that is 
putting out the carbon dioxide, to go to a farmer and say we 
would like for you to change the way you till your fields, the 
way you run your animal feedlots, to encourage the maintenance 
or actually the planting of additional forests? Is that the 
sort of thing you are talking about?
    Mr. Wehrum. That is correct, Senator.
    Senator Carper. All right. We had quite a public dispute 
over the last really 3 years trying to get information out of 
EPA. You may recall we tried for, I guess starting in 2002, to 
try to get EPA to model Senator Jeffords' proposal, the 
President's proposal and our bipartisan proposal with respect 
to the health consequences of each of the three, what are the 
economic consequences of each of the three approaches, what are 
the environmental consequences of each of the three.
    It took forever to get the modeling done. I think back in 
2004, we got a letter from EPA that said that this committee 
was not preparing to move multi-pollutant legislation that 
year, and EPA would not conduct the analysis that we were 
seeking. That was just one of a variety of responses that 
slowed down the process.
    I think if EPA had actually done the analysis that we 
requested starting in 2002 or 2003, we may have a bill passed 
and enacted at this point in time. I am pleased we finally got 
the analysis. I frankly was pleased with the analysis itself. 
But I guess my question is, could you just take a minute and 
explain to us how, if you were actually the Assistant 
Administrator for Air, and you are running the office, how your 
office's cooperation might be any different than it was for 
those 3 years when you were the prior Assistant Administrator's 
chief advisor?
    Mr. Wehrum. Senator, I was not involved in all the 
discussions related to the analysis that was conducted on the 
various competing legislation. Your question was mostly forward 
looking, and what I can tell you is I will commit to work with 
you and your staff and with other members and the Chairman, to 
identify information needs and analytical needs that you have, 
and I will try to work with you to satisfy those needs.
    Senator Carper. I hope so.
    The last thing I want to mention, I am going to submit one 
question for the record on the toxic inventory question. But I 
understand that not too long ago, maybe a month or so ago, EPA 
published a study, I think it was centered in Ohio, where you 
looked at the mercury that is coming back down onto the ground 
from sources emitted. They found out, I understand the EPA 
study said about 75 percent of the mercury that was measured 
coming back down to earth in Ohio was found to have come from 
sources within 400 miles or less of where it came back to the 
earth.
    The Administration's is proposing to deal with mercury in a 
multi-pollutant bill on a cap-and-trade system. I question the 
wisdom of the cap-and-trade approach on mercury, given the 
results that you just published from Ohio.
    I would just ask you, how do you reconcile the two? The EPA 
approach and the analysis from Ohio?
    Mr. Wehrum. Senator, there are two aspects to your question 
I would address. The first is how did those results, which were 
a product of measurements in the field, folks went out and took 
samples and did the analysis, how did that compare to the 
analysis that we did just before the Clean Air Mercury Rule? 
The answer is, it squares up pretty closely. They are not exact 
and we wouldn't expect them to be exact, but they square up 
pretty closely.
    Our models predicted significant deposition in the 
Steubenville area, which is the area addressed by the study, 
from domestic powerplants and that is exactly what the 
Steubenville data seemed to show. That report has not been 
published yet, so it is not final, but it is getting close.
    So we were frankly gratified by that. It shows that there 
is a pretty high degree of consistency between our analysis and 
the actual study that was done with Steubenville.
    The second thing I would say is when you look at the 
further analysis we did with the Clean Air Mercury Rule, you 
see that we predict substantial reductions in deposition in the 
Steubenville area on the order of 70 percent to 80 percent, 
after application of the Clean Air Mercury Rule. So we 
predicted and the analysis shows there is deposition 
attributable to domestic powerplants and our analysis further 
shows that that will be substantially addressed by application 
of the Clean Air Mercury Rule.
    So we think that is very important information and 
certainly helpful to us as we assess the implementation of the 
Clean Air Mercury Rule.
    Senator Carper. I don't have time to get into it further. 
It would seem strange to me if in our cap-and-trade system with 
respect to Steubenville, I am almost done here Mr. Chairman and 
I know my time has expired, but for Steubenville to go out 
maybe to folks in Des Moines or someplace in Nebraska or South 
Dakota or North Dakota and say, well, we are going to get you 
to work out a deal where they reduce mercury emissions there in 
order to help offset the situation in Steubenville, that just 
doesn't add up.
    I think the EPA's own analysis would undermine that 
argument. That is an argument, I guess, for another day, and we 
will have a chance to revisit it.
    But I have a question, Mr. Chairman, that I want to submit 
for the record on the toxic release inventory changes that EPA 
is proposing. We welcome your input there.
    Thank you.
    Mr. Wehrum. Thank you.
    Senator Inhofe. Thank you, Senator.
    I understand that Senator Jeffords has one more question. 
That is perfectly all right.
    Senator Jeffords. Mr. Gulliford, your academic training was 
in forestry and most of your professional experience relates to 
soil conservation issues. Please describe your experience on 
toxic substances and chemical issues.
    Mr. Gulliford. Thank you, Senator, for the question.
    My last 4 years working at EPA in Region VII in Kansas 
City, we have done a lot on what I consider the application of 
the work that OPPTS does here in headquarters. They develop the 
programs. They develop the risk assessments that are helpful to 
us in setting thresholds for cleanups on our Superfund work 
that we do, our site cleanups that we do.
    As we analyze programs in the field, we look to that 
information. Another toxics area that we worked at, we have one 
of the few sites in Coffeyville, KS, where PCBs are actually 
processed and treated and dealt with. We permit that site, for 
example. We do the inspections on that site to assure that they 
are meeting the terms of their permits. So there are a lot of 
application sites to the toxic program that we implement in the 
fields, and that is what I have been a part of in Region VII.
    Senator Inhofe. Thank you very much, and thank you to both 
the witnesses. It has been a long morning. We appreciate your 
straightforward answers.
    We are adjourned.
    [Whereupon, at 11:35 a.m., the committee was adjourned.]
    [Additional statements submitted for the record follow.]

     Statement of Hon. George V. Voinovich, U.S. Senator from the 
                             State of Ohio

    Mr. Chairman, thank you for holding this hearing. I welcome the 
three very qualified individuals before us this morning who have been 
nominated for key positions at the Department of Transportation and 
Environmental Protection Agency. I first want to thank all of you for 
your willingness to serve, and even more importantly, I thank your 
families for their sacrifices.
    Our first nominee this morning is Richard Capka to be Administrator 
of the Federal Highway Administration. You have extensive experience in 
dealing with our nation's and the world's infrastructure. In addition, 
I know you were very helpful in helping begin the restoration process 
in the Everglades. With Masters Degrees in Engineering and Business 
Administration, you served in the Army Corps of Engineers, for the 
State of Massachusetts, and as Deputy Administrator for FHWA since 
2002.
    I have become increasingly concerned that we are ignoring our 
physical infrastructure needs. According to FHWA's 2002 Conditions and 
Performance Report, $106.9 billion through 2020 is needed annually to 
maintain and improve our highways and bridges. To address this need, I 
introduced the National Infrastructure Improvement Act of 2006 (S. 
2388) with Senators Carper and Clinton. I hope to hear your thoughts on 
this legislation and how we can address our needs.
    Second, we have James Gulliford who has been nominated to be 
Assistant Administrator of EPA's Office of Prevention, Pesticides, and 
Toxic Substances. In addition to serving as EPA's Region 7 
Administrator, you bring more than 25 years of experience of 
administering environmental programs pertaining to agriculture and 
mining including for the State of Iowa.
    The last nominee is Bill Wehrum to be Assistant Administrator for 
EPA's Office of Air and Radiation. When EPA Administrator Steve Johnson 
was before this committee for his hearing, I told him that he was 
taking on one of the most difficult positions in the Federal 
Government. Bill, this is the most difficult job within EPA. As I told 
the Administrator, no matter what you do it is either too far for 
industry or not enough for the environmental groups.
    The fact of the matter is that you understand this very well. You 
currently serve as the Acting Assistant Administrator and were counsel 
since 2001. In addition, you bring a wealth of experience and knowledge 
to the position as a Registered Professional Chemical Engineer and 
former environmental attorney. As Chairman of the Subcommittee on Clean 
Air, Climate Change, and Nuclear Safety, I have had the pleasure to 
work with you over the past few years and found you to be balanced, 
conscientious, and hard-working. I look forward to working with you 
more on how we can better harmonize our environment, energy, and 
economic regulations.
    Again, I thank all you for being here today and for your desire to 
serve this country.
      
        Statement of Hon. Lincoln Chafee, U.S. Senator from the 
                         State of Rhode Island

    Thank you, Mr. Chairman. I would like to join you in welcoming the 
nominees this morning. Mr. Capka has been nominated to be the 
Administrator of the Federal Highway Administration (FHWA). Prior to 
his appointment in the FHWA, Mr. Capka oversaw the Massachusetts 
Turnpike Authority after a 29-year career with the Army Corps of 
Engineers. At the Turnpike Authority he directed oversight of the 
$14.5-billion Central Artery/Tunnel project in Boston, the largest and 
most complex infrastructure project in the United States. I look 
forward to working with Mr. Capka to ensure that civil projects 
continue to be completed on a prompt and fiscally responsible schedule 
and that the safety of our interstate highway system continues to 
improve.
    This morning, the committee is also considering two nominees to be 
Assistant Administrators at the Environmental Protection Agency (EPA). 
Mr. Gulliford has been nominated to serve as the head of the EPA Office 
of Prevention, Pesticides and Toxic Substances. Mr. Gulliford currently 
serves as the EPA Region 7 Administrator, and has a great deal of 
experience with pesticide issues and natural resource management in the 
Midwest. Should Mr. Gulliford be approved for the Assistant 
Administrator position, I encourage him to visit Rhode Island and other 
New England States where lead and other toxic substances such as 
mercury continue to be plague our housing stock and our aquatic 
environments.
    Mr. Wehrum has been nominated to serve as Assistant Administrator 
for the EPA Office of Air and Radiation. After serving with EPA for 
nearly 4\1/2\ years and several years in private law practice on air 
regulatory issues previously, Mr. Wehrum has a great deal of expertise 
in the Federal air policy arena. I agree with Mr. Wehrum that this 
Nation continues to have challenges ahead in terms of attaining clean 
air, but we have also come a great distance. While I continue to oppose 
the Administration's Clear Skies proposal, I remain a strong supporter 
of the cap-and-trade concept for addressing the four major pollutants 
from the powerplant sector. I look forward to continuing to work with 
this committee and EPA to craft a Clean Air reauthorization bill that 
moves us toward the ultimate goal of clean air for all Americans.
    I look forward to hearing from each of the nominees. Thank you.

                               __________
     Statement of Hon. Joseph I. Lieberman, U.S. Senator from the 
                          State of Connecticut

    Mr. Wehrum comes before the Senate Environment and Public Works 
Committee today as President Bush's nominee to the position of 
Assistant Administrator for Air and Radiation at the Environmental 
Protection Agency. For several years now, Mr. Wehrum has been an 
influential attorney in the EPA air office. In that role, he has shaped 
and promoted a series of Agency decisions that needlessly threaten to 
prolong and even increase the high concentrations of industrial air 
pollution that millions of Americans are forced to breathe. 
Unfortunately, a review of even just a sample of the harmful 
initiatives that have emanated and continue to emanate from EPA's Air 
Office with Mr. Wehrum's active participation and support raises 
troubling concerns about this nomination. These episodes and several 
others will be the subject of written questions that I will submit to 
Mr. Wehrum.
    By his own account, Mr. Wehrum was deeply involved in developing 
the so-called ``Clean Air Mercury Rule'' that EPA issued on March 15, 
2005. That rule rescinded the Agency's prior commitment to mandate 
that, within 3 years, coal-fired powerplants control their toxic 
mercury air pollution to the maximum extent achievable. In place of 
that unmet promise, which would have yielded 80 to 90 percent cuts in 
mercury emissions at each of the Nation's coal-fired plants by 2008, 
EPA left the public with a rule that will take until sometime after 
2026 to reduce coal-plant mercury emissions by 70 percent. Moreover, 
the rule will allow many coal plants to avoid substantial control by 
buying mercury emissions credits from cleaner plants. In a study 
recently conducted at a site in the Ohio River Valley, 70 percent of 
the mercury found in the rainwater originated at nearby coal-burning 
plants. The fact that mercury emissions might decrease elsewhere in the 
country will be no consolation for the families living near plants that 
buy permission to keep their emissions high.
    Mr. Wehrum was also a central participant in EPA's October 2003 
promulgation of an ``Equipment Replacement Provision'' that 
dramatically expanded a regulatory exemption from the Clean Air Act 
requirement that large industrial facilities accompany emissions-
increasing renovations with the installation of up-to-date pollution 
controls. Two months before EPA issued the final provision, the General 
Accounting Office determined that EPA's stated reasons for the change 
were based on self-serving, unsubstantiated industry anecdotes, rather 
than on reliable data. Shortly after EPA published its rule change, the 
U.S. Court of Appeals for the District of Columbia stayed the action 
after finding that it was likely unlawful and would cause irreparable 
harm to the public if allowed to take effect. Nine months later, EPA's 
inspector general found that the Agency's support for the expanded 
exemption had already ``seriously hampered'' Clean Air Act enforcement 
against coal-fired powerplants and that the exemption would ``result in 
significant amounts of lost emissions reductions.''
    Despite mounting condemnations from both within and outside of EPA, 
Mr. Wehrum and his colleagues refused to rescind the expanded 
exemption. On March 17, 2006, however, a unanimous panel of the D.C. 
Circuit found the EPA rule unlawful and vacated it. The panel wrote 
that EPA's attempted legal defense of the rule a defense crafted in no 
small part by Mr. Wehrum would make sense ``[o]nly in a Humpty Dumpty 
world.''
    Rather than abandoning its misguided effort to undermine the Clean 
Air Act, Mr. Wehrum's air office is forging ahead with a new proposal 
to neutralize the same pollution-control requirement that it 
unsuccessfully targeted in its 2003 rule. EPA's stated goal for the new 
rule is conformity with the result of a decision by the U.S. Court of 
Appeals for the Fourth Circuit, which rejected EPA's longstanding 
interpretation of key Clean Air Act language. That Fourth Circuit 
interpretation was later superseded, however, by a D.C. Circuit holding 
that upheld the erstwhile EPA position in a decision that, by law, 
establishes the governing rule across the entire country. Thus, EPA is 
ignoring a binding court decision in order to bring air-quality 
protection across the entire country down to the level prescribed by a 
ruling that never applied outside of one region and is in any event no 
longer controlling law. Mr. Wehrum's office is again pursuing an 
approach that would make sense only in a Humpty Dumpty world. The 
current, ill-conceived EPA air initiative, like the one in 2003, is 
having a negative impact even before it becomes a final rule. Just last 
week, the power company defendant in one of the largest-ever Clean Air 
Act enforcement suits filed a brief in the U.S. Court of Appeals for 
the Sixth Circuit arguing that it should not be liable for its 
pollution increasing activities since, under EPA's new proposed rule, 
those activities would not trigger the Clean Air Act's control 
requirements.
    I cannot close without briefly mentioning two additional, related 
examples of the work that Mr. Wehrum has done in EPA's air office. Mr. 
Wehrum has been an enthusiastic advocate of a multi-pollutant 
powerplant bill that fails to address carbon dioxide pollution. He has 
also helped to craft a recently issued EPA interpretation of the Clean 
Air Act that makes it easier for companies building new coal-fired 
powerplants to avoid using technology that sequesters carbon dioxide 
waste so that it can be placed into permanent storage. Carbon dioxide 
pollution from powerplants is contributing to man-made climate change 
on a global scale. We must start achieving substantial cuts in that 
pollution now if we are to avoid devastating harm to our economy and 
the health and the wellbeing of our population. I find deeply 
disappointing the persistent aversion of senior EPA officials to 
meaningful action to address this problem. As for EPA's steps to hinder 
the spread of technology that could allow us to continue relying on 
coal without worsening global warming, those actions simply defy 
explanation.
    I urge Mr. Wehrum, in responding to my questions and concerns, to 
indicate whether he has changed any of the views that led him to 
advocate policies that I find starkly antithetical to the Environmental 
Protection Agency's mission. I also encourage him to pledge specific 
steps that he would take as assistant EPA administrator to return the 
Agency's air office to the task of achieving the dramatic reductions in 
industrial air pollution that, as EPA's own studies show, return 
benefits to the American public far in excess of the costs those cuts 
impose on industry.

                               __________
  Statement of Richard Capka, Nominated to be Administrator, Federal 
                         Highway Administration

    Chairman Inhofe, Senator Jeffords and members of the committee, I 
appreciate the opportunity to appear before you today as you consider 
my nomination to be the Administrator for the Federal Highway 
Administration. I am honored to have earned the confidence of the 
President Bush and Secretary Mineta for this important position. But I 
know, Mr. Chairman, that you and the committee have a very important 
obligation to the American people. If confirmed, I pledge to work with 
this committee and Congress to ensure our Nation is strengthened 
through the work done at Federal Highways.
    It is an honor to be presented with an opportunity to continue to 
serve our great Nation. Most of all I am honored, proud and blessed to 
have the love and support of my wonderful wife, Susan; and a family of 
our two sons, our daughters-in-law, three grandsons and three 
grandchildren who are on the way. They have been beside me for a career 
of public service that includes almost 30 years of proudly wearing the 
uniform of a career military officer in numerous assignments here and 
abroad while commanding some of the finest organizations in the U.S. 
Army Corps of Engineers.
    Upon retirement I continued my public service as a professional 
engineer by accepting a challenging opportunity to serve in 
Massachusetts and manage one of the Nation's largest and most 
complicated public works projects. There, I earned the praise of the 
DOT-IG while establishing, for the first time, a budget with the 
appropriate controls that has enabled cost forecasts to remain 
unchanged through today. It became the basis for the Federal approval 
of the Central Artery's 2002 Finance Plan and has remained unchanged 
through today.
    I have also served the last 3\1/2\ years in Washington addressing 
the Nation's transportation needs as the Deputy, and now, Acting 
Administrator for the Federal Highway Administration. I have focused my 
energy on increased stewardship of the Federal Aid Highway program, 
providing effective Federal response to natural disasters, reducing 
highway fatalities, relieving congestion and efficiently addressing the 
needs of our Nation's highway requirements.
    I had a unique opportunity when I retired from military service. I 
was able to select a new career direction from a number of different 
opportunities. Without hesitation I chose transportation. I did so 
based upon my personal, worldwide observations of the positive 
correlation between the quality of a Nation's transportation system and 
the strength of that Nation's economy and quality of life. Our Nation's 
economic strength, our security, our individual freedom to travel, and 
our quality of life are all tied to the quality of our transportation 
systems.
    I have learned over the years that the greatest accomplishments are 
not the results of a single individual's efforts but the combined, 
collective efforts of a ``team of teams'' one that is focused on a 
clear mission and motivated with a common understanding of success. I 
have learned through the management of many large projects, programs 
and organizations that, no matter how challenging, the ``technical 
engineering'' is often the easy part of the delivery process. The 
engineers will tell you, ``Just tell us what you want done, provide us 
the resources and we'll get it done!'' But I have learned that it takes 
a great deal of synchronized effort from a skilled pool of diverse 
talent across a wide and varied set of stakeholder interests to get to 
the point of knowing what needs to be done and providing the direction. 
Whether achieving an important piece of legislation such as SAFETEA-LU, 
responding to a disaster, solving a complex environmental issue or 
delivering a complex megaproject, the quality of success will be 
directly related to the quality of the team. If confirmed, teamwork at 
all levels has been and will always be my focus.
    If confirmed, I will look at the prospects of this new opportunity 
to serve with optimism and enthusiasm. I see opportunities for us to 
improve the system that we have. We will be celebrating the 50th 
Anniversary of our Interstate Highway System on June 29 of this year 
yet our Nation faces significant challenges to the continued success of 
our highway and multi-modal surface transportation systems. It's tragic 
that nearly 43,000 Americans are killed on our roads every year. 
Congestion is not only clogging the routes to and from work and 
recreation it is also clogging the movement of freight that is so vital 
to our economy. The quality of our environment and the vitality of our 
communities all depend upon the quality of our transportation planning, 
program delivery and the efficient management of what we have.
    Innovation must and will be at the heart of our solutions and I am 
excited about the prospects of helping to create an environment that 
encourages innovation from all sectors of the transportation community: 
innovative materials and techniques, innovative policy, and innovative 
partnerships. Solutions will require the serious attention, 
coordination and cooperation among a whole range of stakeholders, at 
all levels of the public sector, the private sector and academia. With 
your confirmation I would be excited about the prospects of working 
with the commissions that you have wisely chartered to address these 
very issues as we move toward our next reauthorization.
    I have been honored to be part of a great team of dedicated 
professionals who make up the Federal Highway Administration and the 
State Departments of Transportation. I have learned great respect and 
admiration for the whole host of stakeholders who make up the 
transportation community and, if confirmed, I will look forward to 
continuing solid and very productive relationships.
    If confirmed, I will continue to work with my colleagues at U.S. 
DOT, at other Federal and State agencies, and with other transportation 
stakeholders. Most importantly, if confirmed, I will work diligently 
with you and Congress to both effectively carry out SAFETEA-LU and to 
help shape the future of surface transportation.
    Again, thank you, Mr. Chairman, and members of the committee. I 
look forward to answering your questions.
                                 ______
                                 
 Responses by Richard Capka to Additional Questions from Senator Inhofe

    Question 1. Highway Trust Fund.--By all estimates, the Highway 
Trust Fund will run out of money by the end of the life of this bill. 
This year's budget proposal shows the trust fund running out of money 
late in fiscal year 2009. This is obviously of great concern to all 
involved. Secretary Mineta has taken the position that we should wait 
and see what receipt estimates look like next year.
    The President's fiscal year 2006 budget proposed adjusting how we 
account for certain fuel tax refunds, specifically ending the current 
practice of the Trust Fund reimbursing the General Fund for certain 
types of tax refunds that are of questionable benefit to highway users. 
This change would have resulted in about $1 billion a year of 
additional funds being credited to the trust fund. Wouldn't it have 
been prudent to include a similar proposal in the fiscal year 2007 
budget to put the estimates back in the black?
    Response. Chairman Inhofe, we are optimistic that the outlook for 
the Highway Trust Fund's status will improve. Currently there is 
sufficient funding available in the highway trust fund to meet the near 
term cash demand. The President's fiscal year 2007 budget has not 
proposed to depart from the authorization spending levels. The 
Administration is monitoring the highway trust fund balances closely. 
If confirmed, I will continue to apprise Congress of its status.

    Question 2. Environment.--SAFETEA-LU included several environmental 
provisions that will require regulations or guidance to implement. 
Could you tell me where we are in implementing these provisions? In 
particular, I am interested in hearing how soon we will see something 
on the surface transportation project delivery pilot program, 4(f) and 
transportation conformity.
    Response. Chairman Inhofe, the Federal Highway Administration 
(FHWA) has begun implementation of SAFETEA-LU's environmental 
provisions. Implementation guidance has been posted on the Agency's Web 
site and we will continue to update those materials. We have several 
significant actions underway.
    On April 5, 2006, FHWA published a notice of proposed rulemaking 
(71 FR 17040), which provides the application requirements for the 
surface transportation project delivery pilot program. The final rule 
will be supplemented with guidance concerning audits, performance 
measures, legal responsibilities, and termination of the pilot program.
    Section 6009 of SAFETEA-LU amends the section 4(f) statute to 
simplify the processing and approval of projects that have only de 
minimis impacts on lands protected by section 4(f). FHWA is currently 
working with the Federal Transit Administration (FTA) on the NPRM to 
establish standards for use in determining alternatives that are 
feasible and prudent, as required by section 6009. On December 13, 
2005, FHWA and FTA jointly issued guidance entitled ``Determining De 
Minimis Impacts to Section 4(f) Resources.'' FHWA also issued guidance 
for applying the 4(f) exemption for the Interstate Highway System on 
January 13, 2006.
    Section 6011 of SAFETEA-LU made a number of revisions to the Clean 
Air Act's transportation conformity provisions. On February 14, 2006, 
the Environmental Protection Agency (EPA) and the U.S. Department of 
Transportation issued joint guidance to address these revisions and 
explain how to implement these changes during the period before the 
Federal transportation conformity rule is revised. Section 6011(g) 
requires that EPA, within 2 years of the date that SAFETEA-LU was 
enacted, revise the transportation conformity rule as necessary to 
address the new statutory provisions.

    Question 3a. Highway Safety.--Since the passage of SAFETEA-LU, how 
has the Federal Highway Administration assisted states in developing 
their strategic highway safety plans outlined in section 1401 of the 
Act, and what steps do you plan to take in continuing these efforts as 
the target date for completion of State safety plans draws near 
(October 1, 2007)?
    Response. Chairman Inhofe, FHWA has taken a number of steps to 
assist States in developing their Strategic Highway Safety Plans 
(SHSP). In October 2005, FHWA, in conjunction with the National Highway 
Traffic Safety Administration, Federal Motor Carrier Safety 
Administration, Federal Transit Administration, and Federal Railroad 
Administration, issued interim guidance on SHSPs that provided the 
background for discussions at the Strategic Highway Safety Plan Peer 
Exchange in November 2005. At the Peer Exchange, all States were 
invited to share experiences, best practices, and questions. FHWA also 
conducted a ``listening session'' at this conference to solicit input 
on guidance needs.
    Subsequent to the conference and after presenting and discussing 
SHSP requirements across the country at various State and regional 
meetings, on April 6, 2006, FHWA issued final guidance entitled 
``Strategic Highway Safety Plans: A Champion's Guide to Saving Lives.''
    Assisting the states in this endeavor is important to me. If 
confirmed, FHWA will continue working with States to meet the deadline 
for developing SHSPs.

    Question 3b. Do you expect all states to achieve compliance with 
their safety plans within the timeframe designated in SAFETEA-LU?
    Response. Chairman Inhofe, I expect all States will have developed 
and implemented a Strategic Highway Safety Plan by October 1, 2007. 
Approximately 22 States had some form of a strategic or comprehensive 
highway safety plan prior to the passage of SAFETEA-LU. Since the 
enactment of SAFETEA-LU, FHWA has been working with the States to 
create new plans and to bring existing plans into compliance with the 
new requirements.

    Question 3c. Have you encountered any obstacles or identified any 
areas that need improvement specifically within the safety provisions 
of SAFETEA-LU?
    Response. Chairman Inhofe, SAFETEA-LU provides a major improvement 
overall for the future of highway safety, particularly with the 
emphasis on strategic safety plans and the comprehensive nature of the 
highway safety requirements. I believe the current program structure 
will serve us well over the coming years.

    Question 4. Leasing of Toll Roads.--There have been two very high 
profile cases of private partnerships paying billions of dollars for 
long-term leases of existing toll roads: the Chicago Skyway and the 
Indiana Toll Road, which has not closed yet. The two deals are very 
different. Indiana intends to use the proceeds for transportation uses 
while the Chicago does not. The Chicago Skyway received very few 
Federal-aid highway dollars, however, I am concerned about the 
potential leasing of a road that has received substantial Federal 
investment and where the proceeds would not go to transportation 
improvements.
    I know FHWA has been following these types of deals very closely. 
What are your thoughts on a constraining the use of proceeds from the 
lease of a road that has received Federal investment?
    Response. FHWA has examined the issue of the use of proceeds from 
the sale or lease of a highway. Section 156 of title 23, U.S. Code, 
applies to toll road sale and leases. That section provides that if any 
of the real property (including land and any improvements thereto) for 
the sold or leased toll road was acquired with Federal assistance, the 
State is required to use the Federal share of the net income from the 
sale or lease only for projects that would be eligible under title 23, 
U.S. Code. The non-Federal share is not subject to this restriction.
    If confirmed, I will ensure that the provisions of title 23 are 
enforced appropriately. While I would personally prefer that all 
proceeds be reinvested in transportation-related activities, I would 
defer to the State to determine how the non-Federal share will be used.

    Question 5a. Emergency Relief Program.--Based on your experience, 
most recently at FHWA, and also your leadership role in the Federal 
flood system recovery response to the 1997 California floods, do you 
feel that the Emergency Relief Program has responded well to damage 
caused by Hurricane Katrina? Given your latest experience, what changes 
would you make in the program or its management?
    Response. Chairman Inhofe, I am satisfied that Federal and State 
highway response to Hurricane Katrina and other recent natural 
disasters was timely, effective, and appropriate. The successful 
response is attributable largely to the relationship between Federal 
Highway Administration Division Offices and State departments of 
transportation, which existed prior to the disaster. Our Division 
Office staff in the affected States were immediately available to the 
State departments of transportation to provide program and technical 
assistance, as well as preliminary surveys and inspections of damaged 
roadways. For Louisiana and Mississippi, each State received a small 
amount of Emergency Relief funding to help get them started in the 
recovery of damaged Federal-aid highways, even as more detailed 
assessments of damage were taking place.
    We are evaluating our experiences with the Emergency Relief program 
based on the response to the recent Gulf Coast hurricanes. That 
evaluation will help us determine what enhancements could be made to 
the Emergency Relief program and its management. We also plan to 
incorporate the results of findings and recommendations from reviews of 
the Emergency Relief program by the U.S. Department of Transportation's 
Office of Inspector General and by the General Accounting Office that 
are underway.

    Question 5b. What actions is FHWA taking to prevent fraud and abuse 
in Emergency Relief Program supported projects?
    Response. Chairman Inhofe, financial stewardship is a very 
important issue to me personally. If confirmed, I commit that it will 
remain a top priority at the Agency. FHWA is undertaking a number of 
actions to prevent fraud and abuse in Emergency Relief program 
supported projects. Under the Emergency Relief program, States must 
apply for reimbursement for eligible expenses. FHWA reviews these 
applications to ensure the Emergency Relief funding is spent on 
eligible work. Additionally, Emergency Relief funding is not disbursed 
until FHWA has received a legitimate bill.
    All contracts for permanent repairs are competitively bid, since 
the competitive bid process ensures that awarded contract costs are as 
reasonable as possible. Contractors' payments are based on the actual 
work performed with inspection, oversight, measurement and payment 
provided by the State department of transportation. Payment is based on 
competitively bid unit prices.

    Question 5c. The Administration sent up a supplemental 
appropriations request on October 28, 2005 to pay for the Emergency 
Relief claims from Katrina, Rita and everything prior.
    Since then, estimates for Katrina and Rita related repairs have 
increased, preventing the backlog from being cleared out. Why has the 
Administration not submitted a new request to liquidate the backlog (as 
was their intent at the time of the last submission)?
    Response. Chairman Inhofe, the magnitude of the natural disasters, 
which have occurred over the past 2 years, has exceeded the capacity of 
the Emergency Relief program. FHWA has had to rely on supplemental 
appropriations to address the additional needs of the Emergency Relief 
program in the past couple of years. We have provided necessary 
information to Congress about the Emergency Relief backlog, as well as 
the Gulf Coast Emergency Relief needs. We are continuing to work with 
the Gulf States to further refine what costs are eligible for Emergency 
Relief funding as a result of the 2005 Gulf Coast hurricanes. If 
confirmed, I will continue to work Congress to address the backlog 
needs.

    Question 6. Open Road Tolling.--The 2007 President's budget 
included a proposal to transfer $100 million from states' formula funds 
to a new program to facilitate and encourage the use of open road 
tolling initiatives (which is a form of tolling without the toll 
plazas). This program was not included in the Administrations 
reauthorization proposal and comes just a few months after passage of 
the reauthorization bill. I was a bit surprised to see a new program 
included in the budget so shortly after passage of SAFETEA-LU. I am 
also a bit confused about the actual purpose of this funding. Any 
projects that would qualify for a grant under this program would have 
to be well on the way to developing or implementing a qualifying 
tolling mechanism. Do you think that this money would actually generate 
any new open road tolling projects or is it just rewarding projects 
already in the works? I'm not sure taking $100 million from the states 
formula funds to reward a specific type of project is the best use of 
our limited funding.
    Response. Chairman Inhofe, it is critical that we initiate 
activities that will advise all of us about the viability of options 
that may exist to help address the many challenges that will certainly 
face the Highway Trust Fund at the expiration of SAFETEA-LU. We intend 
to use the Open Roads program to facilitate new projects that will 
demonstrate the value of innovative ways to finance highways. We hope 
that an Open Roads applicant will test pricing on a broader network of 
roads to better demonstrate the potential for financing highways as a 
network, rather than as a single facility.
    The $100 million of proposed funding will assist up to five States 
in demonstrating and evaluating innovative and more efficient methods 
of charging for the use of major portions of their highway system. In 
implementing the program, we will look for innovative mechanisms that 
can augment existing sources of State (not Federal) highway funding, 
enhance highway performance, and reduce congestion. The lessons from 
this pilot program will inform the next reauthorization act.

    Question 7a. Research.--What is your vision for the FHWA's research 
program, particularly the primary objectives and key deliverables of 
that research?
    Response. Chairman Inhofe, FHWA's research program is mission-
oriented and stakeholder driven. Our mission is to enhance mobility 
through innovation, leadership, and public policy. One of the roles 
that we have defined for ourselves is to be innovators for a better 
future. I think that the research we are conducting is critical to the 
future of success of highway planning. My goal will be to identify, 
develop, and accelerate the transformation of new ideas into better 
transportation systems, processes, and services.

    Question 7b. As you know, SAFETEA-LU includes a provision that 
calls for research for the advancement of processes and products 
related to the three major building blocks of highway construction: 
concrete, asphalt, and aggregate. How do you intend to administer this 
program to ensure that all stakeholders' interests are equitably and 
adequately represented?
    Response. Chairman Inhofe, if confirmed, I will engage stakeholders 
from a variety of disciplines, including State and local agencies, 
metropolitan planning organizations, academia, and industry. Technology 
or innovation end users will be engaged early in the process to help 
ensure successful research, deployment, implementation, and evaluation. 
FHWA considers merit reviews by stakeholders to be vital to the 
continued success of our research and technology program.

    Question 7c. TEA-21 included both a provision and a formula for 
applied research for materials used in highway construction. TEA-21 
specifically calls for an 80/20 match by industry toward the FHWA's 
research program, and notwithstanding that fact, that ratio has been 
altered to 50/50. What is the status of the proposed match waiver? When 
and how do you expect to resolve this issue so that the research agenda 
may be advanced without further delay or interruption?
    Response. As you know Chairman Inhofe, section 5101(b) of SAFETEA-
LU changed the Federal cost share requirement for highway research to 
50 percent. If confirmed, I intend to honor Congress' intent that a 50 
percent match be required for highway research projects. I am committed 
to working with industry leaders to carry out and maximize the 
effectiveness of the infrastructure research and technology programs, 
and we look forward to working with the Congress to ensure that Federal 
research programs are administered as effectively as possible.

    Question 8. Private Activity Bonds.--How is the FHWA coming along 
in implementing the Private Activity Bond program?
    Response. Chairman Inhofe, FHWA, the Office of the Secretary, and 
the Department of the Treasury are working closely on the 
implementation of this provision. We worked with these offices to 
develop the notice published January 5, 2006, in the Federal Register 
(71 FR 642-01), which solicits applications for authority for tax-
exempt financing of highway projects and surface freight transfer 
facilities.
    The January 5, 2006, Federal Register notice solicits requests for 
such allocations from interested entities that meet the statutory 
requirements. There is no window for applications; rather, applications 
will be accepted at any time. Further, the notice explains that there 
is no specified form for the applications and no specific standards, 
beyond those in applicable laws or regulation that apply to the 
consideration of the applications. Upon receipt, U.S. DOT will consider 
an application in light of the applicable statutory requirements and 
the availability of tax-exempt authority for the type and location of 
the project for which the allocation is requested. U.S. DOT is 
particularly concerned that once an allocation is made, the tax-exempt 
bonds are issued in a timely manner. If agreed upon schedules are not 
met, the allocation of bonding authority can be withdrawn.
    Together with the Office of Assistant Secretary for Transportation 
Policy, which has the lead for implementing this provision within U.S. 
DOT, we have already met with several prospective applicants for 
private activity bond allocations. The first applications for 
allocations are expected over the next 3 to 6 months.
                                 ______
                                 
           Responses by Richard Capka to Additional Questions
                         from Senator Voinovich

    Question 1. I introduced the National Infrastructure Improvement 
Act of 2006 with Senators Carper and Clinton. This legislation will 
address the deteriorating conditions of our nation's roads, bridges, 
drinking water systems, dams, and other public works. If enacted, the 
legislation will create a National Commission on Infrastructure of the 
United States charged with aiding in the nation's economic growth and 
ensuring the ability of the nation's infrastructure to meet current and 
future demands. What are your thoughts on this legislation? In 
particular, what steps do you believe need to be taken in order to 
improve our nation's infrastructure to ensure continued long-lasting 
economic growth?
    Response. Senator Voinovich, the Administration and I strongly 
support the need for the study of present conditions and future needs. 
We must ensure that our nation's infrastructure needs are identified 
and prioritized before we develop a coordinated strategy that addresses 
those needs. SAFETEA-LU establishes two commissions to address surface 
transportation needs and financing that should assist the 
Administration and the Congress in formulating the next generation of 
surface transportation legislation. I note that your bill calls for 
coordination with the Commission established by section 1909 of 
SAFETEA-LU. I believe these Commissions will assist us immensely in 
identifying the actions we need to take to improve our nation's 
infrastructure to ensure continued long-lasting economic growth. U.S. 
DOT will be supporting the efforts of the Commissions and we will make 
certain that we are well-positioned to move forward based on the 
results and recommendations of these studies. If confirmed, I look 
forward to working with you and Congress to identify and address our 
nation's infrastructure needs.

    Question 2. Your testimony mentions the need to encourage 
innovation from all sectors of the transportation community. If you are 
confirmed, what actions will you undertake to achieve this goal of 
innovation and encourage collaboration among the many stakeholders 
within the transportation community?
    Response. Senator Voinovich, if confirmed, I would continue the 
philosophical direction demonstrated in a number of recent efforts 
already underway. In the past year, FHWA designated a Program Manager 
for Public-Private Partnerships, who serves as a central point of 
contact for State and local transportation officials who want to 
explore new and creative ways to design, develop, and deliver highways 
and bridges. With enactment of SAFETEA-LU, the Highways for LIFE 
program is designed to encourage innovative approaches in support of 
the accelerated adoption of new ideas in the highway community. We will 
continue developing financial innovations to extend our resources. Our 
innovative finance tool kit, which includes Private Activity Bonds, 
increased flexibility for tolling, TIFIA loans, and State 
Infrastructure Banks, will attract private sector investment and 
participation.

    Question 3. Pursuant to section 5514 of SAFETEA-LU (to ensure 
competition in the specification of culvert pipe), I understand an FHWA 
rulemaking is imminent. What can you reveal about the timing and 
substance of this rulemaking? Will you commit that FHWA will give 
favorable consideration to comments designed to craft the final rule in 
a way that solves the problem of anti-competitive practices in some 
states? Are you prepared to have FHWA take remedial enforcement steps 
if it is determined that certain states continue to evade competition 
requirements in this area?
    Response. Senator Voinovich, on April 17, 2006, the FHWA published 
a notice of proposed rulemaking (NPRM) in the Federal Register (71 FR 
19667), as required by section 5514 of SAFETEA-LU. As with any proposed 
rulemaking, the FHWA will review and consider all comments submitted to 
the docket.
    I am committed to the principles of competition, and FHWA will 
continue to provide oversight for all activities in the Federal-aid 
highway program, including the provisions in the pipe material and 
product selection regulation.
                                 ______
                                 
          Response by Richard Capka to an Additional Question
                         from Senator Murkowski

    Question. Mr. Capka, I want to thank you for meeting with my staff 
the other day. I apologize for not being able to clear my schedule at 
that time, but I understand you had a frank and detailed discussion and 
hope you found it helpful. I just want you to know I appreciate your 
courtesy.
    One of the issues raised, and it is one that is very important to 
me, is the issue of ensuring that we are making solid decisions on 
major transportation projects. It has been suggested by some that the 
EIS process can be altered so that only one favored alternative is 
given full analysis, and others are dismissed quickly. I have some 
trouble with that concept. The entire purpose of an EIS or draft EIS is 
to ensure that we are not overlooking anything important. For example, 
we have a project being planned in Alaska for which there has been a 
strong push to eliminate alternatives early, so that the draft EIS can 
concentrate largely on a single favored alternative. This process 
appears to have been sanctioned by the local FHWA office. I am all for 
streamlining the regulatory process where possible, but I also believe 
a primary purpose of an EIS is to examine a range of alternatives so 
that a clear favorite emerges as a result. What is your view of the 
NEPA process?
    Response. I support the Council on Environmental Quality (CEQ) 
process, which requires that all reasonable alternatives to the 
proposal be examined in the environmental impact statement (EIS). 
Reasonable alternatives include those that are practical or feasible 
from a technical and economic standpoint, rather than simply desirable 
from the standpoint of the applicant. CEQ's regulations state that the 
comparative analysis of alternatives, including the proposed action, is 
the heart of an EIS. CEQ's regulations require a rigorous exploration 
and objective evaluation of reasonable alternatives, including the ``no 
action'' alternative.
    The environmental review process should ensure that the impacts of 
any potential highway undertaking are considered fully and 
appropriately. I appreciate the effort that Congress continues to 
undertake to further refine the efficiency of the environmental 
process. We will continue to be good stewards of the environment, while 
we seek ways that can improve the efficiency through which we are able 
to address the nation's highway needs.
                                 ______
                                 
 Responses by Richard Capka to Additional Questions from Senator Boxer

    Question 1. Mr. Capka, I know that the Boston Globe has supported 
your nomination being considered by the Senate. However, there is 
criticism of your leadership of the Central Artery Project when you 
held the position of CEO of the Massachusetts Turnpike Authority. Even 
the Boston Globe wrote, ``J. Richard Capka may not have covered himself 
with glory during his tenure as chief executive of the Massachusetts 
Turnpike Authority . . .'' Can you please discuss your role in the 
Central Artery Project, especially any problems, as well as address any 
concerns that your leadership was inadequate?
    Response. In December 2000, after a tumultuous year where the 
forecasted cost of the Central Artery and Third Tunnel (CA/T) Project 
unexpectedly increased from $10.8B to $14.075B, the Governor of 
Massachusetts hired me as the Chief Executive Officer (CEO) at the 
Metropolitan Turnpike Authority (MTA) and the ``Big Dig.'' Soon after I 
arrived, the CA/T Project Management Team undertook a rigorous and 
lengthy review of the Project. We concluded that the Project would 
require an additional $400 million to complete, for a total project 
cost of $14.475 billion--a budget that remains in place today. As a 
direct result of my efforts to determine actual project costs and 
institute new management reporting controls, the USDOT Inspector 
General and the FHWA Administrator announced their approvals of a new 
Finance Plan in March 2002, and the Inspector General closed several 
on-going investigations and withdrew his oversight team from the 
project.
    I strongly believe that recovering costs incurred through the 
mistakes of contractors, consultants, or others is an important 
priority in any project. I also believe that the timing of such actions 
must complement the efficient and cost effective completion of the 
project. My assessment of the situation with the CA/T Project was that 
I needed to focus on the current and future problems facing the 
Project, before turning to a closer examination of past mistakes. By 
the time I arrived, the Project had a long and complex history, with 
many yet-to-be-substantiated allegations of cost growth, mismanagement, 
and mistakes. I was aware that the Board was taking action concerning 
cost recovery, and recommendations would be made to me to pursue 
specific cost recovery steps.
    I was directed by MTA Board Members to authorize severance packages 
for three attorneys working for the Turnpike Authority.--The severance 
packages were limited in both scope and time and provided a lump sum 
payment of a portion of their annual salary if the employees were 
involuntarily separated from their positions for reasons other than 
malfeasance. The packages also included a ``sunset'' provision. 
Although these severance packages were initiated by the Board Members 
and not by me, I determined that they were reasonable.
    Contrary to what you may have heard, I was not fired from the 
Turnpike Authority. After the Acting Governor dismissed two of the MTA 
Board Members and the Chairman resigned for personal reasons, the 
Acting Governor restructured the MTA to include a full-time Chairman 
with greater authority and responsibility than the departing Chairman 
had possessed. The new ``full-time'' nature of the Chairman's position 
made the CEO position redundant. When the Board was finally 
reconstituted, I proposed to the Board Members that the CEO position be 
eliminated, arguing that the redundancy was inefficient, costly, and 
not in the best interest of the MTA. The Board voted 2 to 1 to 
eliminate the CEO position, and I left the MTA in July 2002. To date, 
there is no CEO at the MTA and those responsibilities continue to be 
handled by the Board Chairman.
    I am proud of my accomplishments during my time at the CA/T 
Project. My experience with the CA/T Project has reinforced my personal 
commitment to the careful stewardship of the public resources entrusted 
to us. It has also strengthened my management skills and has provided 
me with invaluable insights concerning the effective management of 
megaprojects that I have shared and if confirmed, will continue to 
share with others across the Nation.

    Question 2. Mr. Capka, you were the Acting Administrator for the 
Federal Highway Administration during Katrina and the rebuilding 
efforts. What lessons have you learned from that situation? How would 
you apply this knowledge to rebuilding highways, roads, and bridges 
after another natural disaster such as a major earthquake in 
California?
    Response. During Katrina, Wilma and other recent hurricanes, the 
FHWA and the affected State departments of transportation validated the 
assumption that effective, pre-existing personal and professional 
working relationships among Federal and State highway officials will 
create the ``working shoulder to shoulder'' environment necessary to 
achieve positive results during a crisis. Together we were able to 
assess the situation rapidly, review lessons learned from past disaster 
situations, and shape strategies that provide the most efficient 
response. We have learned the great value in sharing past lessons. For 
example, we helped Mississippi and Louisiana work with Florida experts 
to address bridge damage that was quite similar to what Florida had 
experienced during the previous hurricane season. Once again, 
contracting incentives were employed successfully to expedite highway 
repairs as in past disasters.
    As we did after the 2004 hurricane season, we are analyzing with 
our State partners the events of the 2005 hurricane season for lessons 
learned that can be applied to future situations. There are always 
opportunities to improve and share experiences. FHWA also is assisting 
the Office of the Secretary and the Department of Homeland Security in 
developing the Catastrophic Hurricane Evacuation Plans Report to 
Congress as mandated by SAFETEA-LU.
                                 ______
                                 
          Response by Richard Capka to an Additional Question 
                          from Senator Baucus

    Question. Acting Administrator Capka, based on FHWA's January 31 
Final Rule on ``Project Authorization and Agreement'' (Part 630, 
Subpart A) the Department of Transportation in my home State of Montana 
has been told that it will no longer be able to program Federal-aid 
highway funds for partial ``preliminary engineering'' (PE). This is not 
consistent with the long established business processes in the Montana 
Department of Transportation. The Montana DOT has been very successful 
at conserving obligation authority by programming a modest percentage 
of the total preliminary engineering costs at the beginning of a 
project, performing detailed field scoping activities, and then 
modifying the project to go to full PE costs based on a well detailed 
project cost estimate. FHWA has now informed MTDOT that this business 
practice is no longer possible and that full PE is needed as soon as a 
project is authorized. The specific language in the rule that is cited 
as the obstacle concerns the need for a cost estimate to support 
authorization of funds. The intent of this rule is to improve the 
efficiency in the use of Federal funds. I applaud this intent but 
believe that an unintended consequence of the rule is that fewer 
Federal funds will be available for actual construction, as more funds 
will be dedicated very early in the process to full PE costs. In 
Montana, this could be a difference of as much as $25 million a year. 
Could FHWA review its interpretation of this rule so that the Montana 
Department of Transportation may continue to program partial PE at the 
initiation of a project authorization?
    Response. As I understand them, appropriation law principles 
require a Federal obligation to be supported by a written cost 
estimate. These principles further limit Federal officials from 
agreeing to fund an activity, but not obligating funds for it, because 
such an action would put the Federal Government in a position of not 
being able to meet its commitments. The practice by some States of 
obligating a small amount on PE projects is not an appropriate practice 
under this appropriation law principle.
    If confirmed, I assure you that I will review FHWA's rule and its 
application to the practice that MT DOT has followed on partial PE. Our 
Montana Division Administrator has already been in contact with senior 
MT DOT officials to discuss this matter. We are committed to working 
with MT DOT to find a solution that is consistent with Federal law and 
achieves Montana's goals for delivering its Federal-aid highway 
program.
                                 ______
                                 
          Responses by Richard Capka to Additional Questions 
                        from Senator Lautenberg

    Question 1. Regarding New Jersey's continued use of multi-year 
funding as an accepted financing method for infrastructure projects, 
you stated that you have not backed away from the agreement you reached 
with the New Jersey Department of Transportation last fall. The 
statement in that agreement pertaining to multi-year funding indicates 
that FHWA will continue to honor New Jersey's multi-year funding 
approach. Can you confirm my understanding that this agreement applies 
to both the current statewide Transportation Improvement Program 
(fiscal year 2006--fiscal year 2008) as well as the fiscal year 2007--
fiscal year 2010 statewide Transportation Improvement Program, which is 
now under development?
    Response. Senator Lautenberg, the agreement between the FHWA and 
the NJDOT was written specifically to cover fiscal year 2006-fiscal 
year 2008 State Transportation Improvement Program (STIP). New Jersey 
met the required fiscal conditions for its STIP for fiscal years 2006 
to 2008, which FHWA and FTA approved last September. That approval is 
still valid and remains in effect for all authorized Federal projects, 
which continue to receive full Federal funding. No projects have been 
denied approval or Federal support. As for future STIPs, FHWA and FTA 
have determined that the State must document the availability of 
necessary revenues to complete the projects as programmed and to 
maintain and operate the existing highway and transit system.

    Question 2. I appreciate your recent efforts to meet with New 
Jersey's Transportation Commissioner, along with senior staff from the 
Agency and the Secretary's Office. At this meeting, did FHWA commit to 
the Commissioner to approve New Jersey's use of multi-year funded 
projects in the fiscal year 2006--fiscal year 2008 and fiscal year 
2007--fiscal year 2010 statewide Transportation Improvement Programs?
    Response. FHWA did commit to the Commissioner to allow multi-year 
funding in future STIPs, including fiscal year 2007--fiscal year 2010. 
As for any programming approach, approval of future programming 
documents (STIPs) will depend upon the State's ability to provide 
financial information to demonstrate that it will have the needed 
Federal or non-Federal revenues to complete federally funded or 
regionally significant highway, bridge, and transit projects and that 
sufficient funding is available to operate and maintain the 
transportation system. The specific financing method used to advance 
those projects, such as NJ DOT's multi-year funding, is the prerogative 
of the State. We are awaiting NJ DOT's STIP submittal for fiscal year 
2007--fiscal year 2010.

    Question 3. If you are confirmed as Administrator, will FHWA 
continue to approve New Jersey's use of multi-year funding in statewide 
Transportation Improvement Programs beyond FY 2007?
    Response. Senator Lautenberg, FHWA is ready and willing to approve 
any State's STIP without regard to the financing method used to advance 
projects, including multi-year financing. If confirmed, I will continue 
to work with the State DOT on the STIP.

    Question 4. Since your meeting with New Jersey Transportation 
Commissioner Kolluri, are you confident that all FHWA regional 
officials understand how states use multi-year funding as a financing 
method for infrastructure projects? Is there a document on this subject 
describing a uniform agency policy? If so, can you provide it to the 
committee?
    Response. Senator Lautenberg, since the issue of multi-year funding 
and the ability of a State DOT to adequately document the fiscal 
constraint requirements has only arisen in New Jersey up to this point, 
we have not previously issued a document or guidance to FHWA and FTA 
field offices on it. In light of the many questions that have arisen, I 
agree that we should provide clarifying information to our field 
offices, which will be consistent with the principles reflected in our 
answers to the foregoing questions. We will be happy to provide the 
committee a copy of this guidance when it is issued.

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    Statement of James B. Gulliford, Nominated to be the Assistant 
 Administrator, Office of Prevention, Pesticides and Toxic Substances, 
                    Environmental Protection Agency

    Mr. Chairman, Senator Jeffords, and Members of the committee. I am 
honored to appear before you today, and am seeking your confirmation to 
serve as Assistant Administrator for the Office of Prevention, 
Pesticides and Toxic Substances (OPPTS). It has been my pleasure to 
serve as the EPA Region 7 Administrator for the past 4\1/2\ years, and 
it is truly an honor to have the support of President Bush and 
Administrator Johnson, to serve the American people in this new 
capacity.
    The Environmental challenges we face today are complex. They demand 
a focused and unyielding commitment to fully understand the issues, to 
seek solutions, and to facilitate change. I believe that working 
together with Congress, the States, the regulated community, the public 
interest community, and the American people, we can accelerate our 
environmental progress, foster a strong and vibrant economy, and assure 
that our citizens enjoy a safe and healthy environment in which to 
live, work and play.
    I am dedicated to that belief, and the knowledge and experience 
that have brought me here today will serve me and the environment well. 
I bring a strong and abiding respect for America's natural resources. I 
majored in Forestry Management at Iowa State University. In addition to 
a traditional forestry curriculum, I minored in Agronomy, recognizing 
the importance of soil science, nutrient management, and soil 
conservation. My MS in Forestry Economics and Marketing added 
additional tools to solve complex environmental and natural resource 
management problems. Before coming to EPA, I worked for 25 years in the 
fields of mine reclamation, soil conservation, and water quality 
protection. I understand well the complexities of natural resource 
management. I also bring a healthy appreciation for the work of OPPTS; 
an office that is at the forefront of protecting public health and the 
environment.
    Growing up west of Chicago, my anticipation each summer was for 
several weekend camping trips, and one major family vacation visiting 
any number of our Nation's National Parks. Hiking, camping and seeing 
the incredible beauty of this country sparked my career in natural 
resource management and environmental protection. My wife Von and I 
chose to pass those same experiences and love of our land to our 
children. With my son Jason, I have backpacked the Sierras, canoed the 
Boundary Waters, and hiked the Grand Canyon.
    If I am confirmed in this position, I know that I will be stepping 
up to the plate on a number of strategically important environmental 
issues--issues that are important to many members of this committee. 
These include pesticide registration, lead and endangered species just 
to name a few. I can say unequivocally that I will approach each of 
them with an open mind, a commitment to fully understand and appreciate 
all sides of an issue, and most importantly, with the paramount 
objective of protecting public health and the environment.
    I will use the best and most appropriate tools to get the job done. 
If a regulatory approach makes sense, then that is what I will choose. 
If I can get the job done quicker and more efficiently by advocating a 
stewardship or partnership approach, then I will proceed down that 
path. If a combination of tools makes the most sense, then I will move 
in that direction. I believe this job requires flexibility, creativity 
and common sense, and I believe I bring those skills to the job.
    Finally, I want to close by acknowledging the importance that my 
family's love and support means to me. I am blessed that my parents 
continue to live healthy productive lives back home in Illinois, and 
the values and training they gave me years ago continue to be central 
to my being. My daughter Keri is a constant example to me of strength, 
character and determination as a nurse in a neurosurgeon's office and a 
part-time student finishing her BA degree. My son Jason is one of the 
finest, caring young men I know, and a great outdoor adventure partner. 
He and his wife Heidi are beginning their life together and constantly 
remind me why we work today to assure the safe, healthy future of our 
planet. Finally, the love, strength and partnership of my wife Von 
inspire and sustain me. With this support, I am confident that if 
confirmed Assistant Administrator, my service will reflect positively 
on my family, and the needs of all families who rely on OPPTS and EPA 
for a safe, healthy environment.
    Thank you for the opportunity to appear before you today. I am 
happy to answer any questions you have.
                                 ______
                                 
        Responses by James B. Gulliford to Additional Questions 
                          from Senator Inhofe

                               PESTICIDES

    Question 1a. ESA.--How will the Office of Pesticide Programs assure 
that endangered species effects determinations under the Counterpart 
Regulation for pesticide use are completed in a timely manner, giving 
appropriate concern to thorough risk assessment? How does EPA plan to 
provide clear guidance to the States on their role in implementing 
EPA's Endangered Species Protection Program?
    Response. Through the Counterpart Regulations EPA worked with the 
Fish and Wildlife Service and National Marine Fisheries Services to 
establish an efficient and effective process, which incorporates best 
available information and accepted scientific methods, to make certain 
effect determinations without further consultation with the Services. 
To implement the Counterpart Regulations, EPA and the Services 
completed training to certify 50 Pesticide Program senior managers and 
scientists to make appropriate ``not likely to adversely effect'' 
determinations. EPA and the Services also established a standing 
interagency committee that meets regularly to enhance coordination and 
planning and to pursue information and technology exchange. Over the 
last year the Program has been increasingly incorporating risk 
assessment procedures consistent with the Counterpart Regulations 
within on-going regulatory actions. In addition, the Program identified 
11 active ingredients that are currently being evaluated with the 
Services to amass information on a wide range of listed resources, 
which will be widely applicable to additional pesticide assessments, 
and to identify opportunities to add efficiencies to future 
assessments. Even with these significant developments, fully 
implementing the Counterpart Regulations will be a massive undertaking, 
with approximately 600 active ingredients in over 19,000 products, each 
of which may have multiple uses, and approximately 1,200 listed 
species, each with diverse habits and habitat requirements. As 
discussed with our stakeholders on the Pesticide Program Dialogue 
Committee, based on current and projected resources and existing ESA-
related litigation, EPA anticipates focusing its work for new and 
existing pesticides in the registration and registration review 
programs.

    Question 1b. How does EPA plan to provide clear guidance to the 
States on their role in implementing EPA's Endangered Species 
Protection Program?
    Response. In my role as Regional Administrator for Region VII and 
in previous positions working in State Government, I bring extensive 
experience in collaborating with the States. Currently EPA is working 
closely with the States in their roles to educate pesticide users, 
enforce labeling requirements, review county maps that will be used in 
Endangered Species Protection Bulletins, and identify any listed 
species issues for section 18 emergency exemption applications under 
FIFRA. EPA is also presenting information and responding to questions 
about State roles at meetings of the Association of American Pesticide 
Control Officials (AAPCO) and its three workgroups of the State FIFRA 
Issues Research and Evaluation Group (SFIREG). Planning is underway to 
hold a national State pesticide Agency workshop this summer. In 
addition, EPA will continue to rely on regional EPA offices to keep 
State regulatory agencies apprised of activities and progress in the 
Endangered Species Protection Program. States are important partners in 
this effort and I am committed to working closely with them.

    Question 2. PRIA--EPA put together an extraordinary coalition of 
environmentalists, farm commodity groups, the pesticide industry, farm 
workers and labor to support the Pesticide Registration Improvement 
Act, enacted in 2004. PRIA brings new funding stability, improves 
predictability for approval times for registration of new products, and 
provides the resources needed to complete tolerance reassessment and 
re-registration.
    In support of a strong PRIA program, how will you ensure that the 
funding stability it provides will be preserved and the deadlines it 
incorporates will be met? Further, what assurances can you give us that 
EPA will keep this coalition together and support the reauthorization 
of PRIA?
    Response. The Agency has monthly meetings with the fee coalition to 
keep it informed of progress in meeting due dates and responding to 
other informational requests. In addition, members of the organizations 
in the coalition also participate in the PRIA Process Improvement 
Workgroup, under the auspices of the Pesticide Program Dialogue 
Committee (PPDC). The PPDC is the Pesticide Program's Advisory 
Committee and this workgroup is providing advice on improvements in 
registration processes for additional efficiencies.
    I fully support the efforts of such diverse stakeholders getting 
together on any issue. EPA has met virtually all of the deadlines under 
PRIA. Implementation of PRIA is a success story. One of the hallmarks 
of PRIA's success has been the continued collaboration between the 
Agency and all the stakeholders on pesticide fees. I look forward to 
this continued collaboration working with the Administration, with you 
and other Members of Congress, as well as the various stakeholders, on 
all the various pesticide fee issues. To date over 99.8 percent of 
actions completed by the Agency have been completed on or before their 
due dates.

    Question 3. NPDES/CWA.--The last draft of the proposed rule 
excluded from NPDES permitting only those circumstances where 
pesticides are applied, in compliance with FIFRA, directly into, over 
or near water--so-called aquatic uses and dealing with pests found in 
or near aquatic environments. As you know, my legislation (S. 1269) 
also excludes these pesticides from NPDES permits but also those 
sprayed further from a waterway. This is an important difference 
between my legislation (S. 1269) and the Agency's proposed rule and one 
of the primary reasons, I introduced my legislation and continue to 
push for its passage despite your rule. Should not the rule also 
exclude those pesticide uses that take place further from water?
    Such uses almost by definition should result in less pesticide 
reaching water. I know that it is the Agency's longstanding operational 
approach not to require NPDES permits under these circumstances. Would 
it not be wise to extend this proposed rule to cover all pesticide uses 
applied in compliance with FIFRA?
    Response. As I noted at the hearing, EPA's longstanding practice 
has been not to require an NPDES permit for the application of 
pesticide products in accordance with its EPA-approved labeling. EPA 
has issued an Interpretive Statement that a pesticide, when applied to 
or over (including near) waters of the United States in accordance with 
relevant requirements of the EPA approved labeling, is not a 
``pollutant'' under the statutory definition of that term, and that 
such an application does not require an NPDES permit. At the same time 
as it issued the Interpretive Statement to this effect, EPA announced a 
proposed rule for public comment that would codify this interpretation. 
The Agency believes it is important to finalize the proposed rulemaking 
to address the specific situations that have been the primary focus of 
litigation under the CWA. Accordingly, EPA expects to issue the final 
rule this summer.
    Like EPA's proposed rule, S. 1269 would clarify the interaction 
between the Clean Water Act (CWA) and the Federal Insecticide, 
Fungicide, and Rodenticide Act (FIFRA). It is helpful to note that 
Benjamin Grumbles, Assistant Administrator for Water, testified in 
September 2005 before the Subcommittee on Water Resources and 
Environment of the House Committee on Transportation and Infrastructure 
about H.R. 1729, a bill introduced by Representative Otter that is 
similar to S. 1269. Mr. Grumbles expressed support for H.R. 1729 to the 
extent it produced the same result as EPA's proposed rule, but he noted 
a number of ways in which that bill moves beyond the scope of EPA's 
proposal. The Administration has not taken an official position with 
respect to either S. 1269 or H.R. 1729.

    Question 4. TSCA.--Do you agree that voluntary and cooperative 
actions with industry (e.g., the High Production Volume (HPV) Challenge 
program) are useful? What other areas might be susceptible to voluntary 
approaches that complement OPPTS's activities?
    Response. Yes, the voluntary and cooperative actions that OPPTS has 
engaged in with industry have proved to be useful. For example, the 
High Production Volume (HPV) Challenge Program has resulted in 
unprecedented collection of existing and generation of new hazard 
information. This basic screening level information is now available in 
a searchable data base known as the High Production Volume Information 
System (HPVIS). The success of the HPV Challenge Program effort has 
served as a successful model for other stewardship and voluntary 
efforts. Also, OPPTS is currently implementing a stewardship program to 
reduce and work toward eliminating PFOA product content and emissions.
    As for areas for additional stewardship opportunities, let me 
highlight ongoing work in three areas: nanotechnology, the Green 
Suppliers Network (GSN), and the Electronic Products Environmental 
Assessment Tool (EPEAT). EPA is currently developing a stewardship 
program for nanoscale materials, including obtaining input from various 
stakeholders. GSN is a collaborative venture among industry, the EPA 
and the Department of Commerce to work with all levels of the 
manufacturing supply chain to achieve environmental and economic 
benefits. EPEAT is an environmental procurement tool designed to help 
institutional purchasers in the public and private sectors evaluate, 
compare and select desktop computers, notebook computers and monitors 
based on the products' environmental attributes. Among others, these 
are areas of cooperative actions and stewardship programs that are an 
important tool to facilitate the Agency's success in protecting human 
health and the environment. For industrial chemical issues where risk 
mitigation can be achieved faster through voluntary partnerships, EPA 
will pursue that course. As I mentioned during the hearing: ``If I can 
get the job done quicker and more efficiently by advocating a 
stewardship or partnership approach, then I will proceed down that 
path. If a combination of tools makes the most sense, I will move in 
that direction.''

    Question 5. Do you believe that risk-based approaches to chemical 
decisionmaking are the most effective means of regulating in this area?
    Response. A risk-based approach allows the Agency to address 
specific, real world concerns by applying targeted decisionmaking, 
including restricting uses, addressing personnel protective 
requirements, addressing specific manufacturing issues, or other 
options to address potential risks in a targeted manner. In 
implementing TSCA, EPA will continue to consider the risks, costs, and 
benefits, as called for by the statute, taking into account the state 
of and certainty of the science and will take action to protect public 
health and the environment. This approach assures that critical uses 
and other unique circumstances are factored into the Agency's 
decisionmaking.

    Question 6. Will EPA take steps to promote the timely (sooner 
rather than later) implementation of EPA's product stewardship program 
for nanomaterials?
    Response. EPA is moving toward a decision on a possible stewardship 
program for nanoscale materials in an open, transparent, inclusive and 
expeditious process. EPA is considering the input provided in an 
overview report prepared by the National Pollution Prevention and 
Toxics Advisory Committee (NPPTAC) in November 2005. Scientific peer 
consultations for material characterization and management practices 
will engage stakeholders on these key elements of the program this 
spring. The current schedule is for EPA to make a decision on 
implementation in the fall of 2006.

    Question 7. Lead.--Do you agree that EPA should coordinate lead 
cleanups with HUD to ensure that multiple lead sources are addressed in 
urban communities where interior lead based paint is a significant 
contributor?
    Response. Coordination should occur with the Department of Housing 
and Urban Development (HUD) and others to assess the potential to 
address the lead problems in a community on a holistic basis during 
Superfund actions. However, should these other sources of funding and 
response actions not be available, the cleanup of the contaminated yard 
soils should not wait for the other organizations. CERCLA and the 
National Contingency Plan limit Superfund authority to address interior 
lead-based paint.
    At the Omaha Lead Site, for instance, the selected remedy provides 
for coordination with other agencies and organizations contributing 
toward a comprehensive remedy. EPA is coordinating with the HUD-funded 
Omaha Lead Hazard Control Program and a recently formed 501(c)(3) 
focusing on all sources of lead exposure in the Omaha community. EPA 
was instrumental in the award of the initial 2003 HUD grant to the city 
of Omaha, and provided a letter of recommendation in the City's most 
recent successful application that resulted in an additional $2 million 
HUD grant award. In addition, EPA is working with the city of Omaha to 
develop a model for communities that are threatened by multiple lead 
exposure sources under a $500,000 project funded by Congress under a 
special appropriation.

    Question 8. Do you agree that under EPA's Lead Policy that all 
sources of lead contamination must be identified and take into account 
before deciding on a cleanup program? If so, during your tenure w/
Region 7 what steps did you take to ensure consistent implementation of 
EPA's lead policy at all lead contamination sites?
    Response. For the residential soil lead cleanups performed as 
Superfund remedial actions, we have (1) evaluated the soil, dust, and 
water pathways of exposure, (2) performed risk calculations using site 
specific data, and (3) followed the ``Superfund Lead-Contaminated 
Residential Sites Handbook.'' We have clearly communicated that there 
are multiple sources of lead exposure in communities, including 
interior and exterior lead-based paint. We have also coordinated with 
local HUD and Health Department officials to determine if funds are 
available to address the other sources.

    Question 9. Where interior lead-based paint is a major contributor 
of lead contamination, would you support remediating indoor paint as 
opposed to extensive excavation activities?
    Response. I agree that non-soil sources of lead exposure need to be 
addressed.

    Question 10. Are you aware that there are two different standards 
for abating lead exposure risks implemented by EPA: one under Superfund 
and one under TSCA? Will you please explain why two standards and 
approaches exist? Do you support the continuation of two standards? If 
so, why and if not, why not?
    Response. The TSCA Title X rules establish standards for defining a 
lead hazard in paint, dust, and soil and clearance levels for interior 
dust following lead-based paint abatement. The paint and dust standards 
are generally applied the same way at both Superfund and TSCA sites. 
The Superfund program does not use a cleanup standard and determines 
cleanup levels at site using the IEUBK lead model. The Superfund soil 
lead screening level is 400 ppm to determine if a potential lead 
problem in soils exists and this is the same value used under TSCA to 
determine if a lead hazard exists in residential soils in play areas. 
Superfund cleanup levels could fall either above or below the 400 ppm 
level depending on the site specific inputs to the IEUBK model. Running 
the IEUBK model using only the model default parameter values will 
result in a cleanup level of 400 ppm. For this reason, 400 ppm is used 
as a cleanup level prior to measuring the site-specific model inputs.
    The difference between CERCLA and TSCA comes in the definitions of 
``play area'' and ``the rest of the yard''. Superfund uses the entire 
residential yard as the ``play area'' while ``the rest of the yard'' 
under TSCA may be interpreted more narrowly.

    Question 11. At the Omaha Lead Site, has EPA collected any lead-
based paint samples to assess the potential for recontamination? How 
much money has been spent removing yard soils without evaluation of 
recontamination from exterior-lead based paint?
    Response. To date, EPA has performed more than 400 exterior lead-
based paint assessments in Omaha and expects paint stabilization 
actions to begin later this year. Deteriorating exterior lead-based 
paint and contaminated interior dust will be addressed at all 
remediated properties before completion of the cleanup. Prior to the 
2004 ROD, EPA had expended approximately $35 million evaluating and 
responding to the risk at the Omaha Lead Site, most of which was 
directed to soil cleanups. Following the 2004 ROD, EPA has expended 
approximately $15 million directed to soil cleanups.
                                 ______
                                 
       Response by James B. Gulliford to an Additional Question 
                           from Senator Bond

    Question. In 1998, the EPA mistakenly approved a split registration 
for the Cry9C protein in StarLink corn, allowing the corn to be used 
for feed but not for human food. Since the same corn is manufactured 
into both feed and food products, that EPA action resulted in the 
presence of the unapproved protein in food products and their 
subsequent recall. That caused unfounded questions about the safety of 
foods with biotech content, and U.S. corn farmers have lost millions of 
tons of domestic and export markets.
    I understand no health effects of consuming foods with Cry9C 
protein have been reported. Yet industry still tests every lot of corn 
intended for food use, and USDA and industry have conducted more than 3 
million analyses for the presence of Cry9C in corn with no positive 
detections in many months.
    How will you work to have the testing program for Cry9C protein in 
corn ended as quickly as possible in a manner that does not cause 
disruption to the industry, and would ensure no Federal enforcement 
action for food products found to contain trace amounts of Cry9C 
protein?
    Response. EPA and other Federal agencies continue to work with the 
industry to ensure that appropriate testing is conducted and are 
discussing strategies to change the current testing protocol. EPA will 
be working with StarLink Logistics, Inc. (SLLI), the grain industry, 
food processors, and other Federal agencies to determine the best path 
forward that could eliminate testing, while still being protective of 
public health.
                                 ______
                                 
       Response by James B. Gulliford to an Additional Question 
                         from Senator Murkowski

    Question. Mr. Gulliford, thank you for being here. I understand 
your academic training focused on forestry issues, and that your 
experience with the State government in Iowa related primarily to 
surface mining and reclamation issues. Have you had any significant 
experience with the regulation of pesticides and toxics? How you feel 
your experience has prepared you to take on that role?
    Response. For the past four and a half years as Regional 
Administrator, I have been responsible for the implementation of all 
EPA programs and regulations in Region 7 including FIFRA and TSCA. 
Examples of regional activities or actions include:
    Pesticides and Agriculture.--The Pesticide Program, in conjunction 
with many other partners, has undertaken a number of specific 
initiatives and provided funding for a variety of projects to achieve 
real and lasting environmental improvements. As one example, various 
funding sources were used to assist farmers in reducing pesticide 
runoff, including atrazine, into Smithville Lake in Missouri. This 
resulted in significant water quality improvements which contributed to 
the State of Missouri and EPA removing the lake from the State's 
impaired water list.
    Pesticide Enforcement.--In conjunction with our State partners, 
approximately 4,500 pesticide inspections are conducted each year. 
Depending upon the seriousness of any violations which are identified, 
the State pesticide agencies and/or EPA Region 7 follow up and take 
appropriate enforcement actions. In fiscal year 2005, EPA Region 7 
issued approximately 25 enforcement actions with penalties for the most 
serious violations which included the sale of restricted use pesticides 
to uncertified applicators and distribution of unregistered, canceled 
and misbranded pesticides.
    Pesticide Education, Outreach and Compliance Assistance.--In fiscal 
year 2005, Region 7 responded to over 500 phone calls and distributed 
approximately 19,000 pesticide outreach materials to the public, State 
partners, and the regulated community. Specific outreach initiatives 
include development of an English/Spanish brochure to inform pesticide 
workers and handlers about Worker Protection Standards. This 
publication has been adopted nationally by other Regions and States. 
Another brochure was developed in conjunction with the Prairie Band 
Potawatomi Nation in Region 7 to inform pesticide users of the 
importance of native plants, the impact pesticides may have on such 
plants, as well as the role pesticides can play in controlling invasive 
species.
    In addition, we have been actively involved in promoting the use of 
Integrated Pest Management practices in schools as a means of reducing 
the risks of pesticide exposure to children.
    PCBs in Paint.--On former Army ammunition plant sites, the Army had 
proposed to burn buildings containing explosives-contaminated 
structures and equipment, some of which are also coated with PCB 
containing paint. Cleanup is complicated by the presence of explosive 
residues impregnated in the walls, ceilings and floors. The traditional 
disposal method for explosive residue is open burning. However, the 
presence of PCBs at very high levels (24,000 ppm) limited open burning 
as a viable option. Long term, cost effective solutions are still under 
investigation, although a stripping/deconstruction/TSCA landfill 
solution has been employed at the Iowa Army Ammunition Plant site.
    Lead.--Lead is a priority issue of concern in Region 7. Children in 
the region have multiple exposure pathways through lead mining and 
smelting, and domestic lead paint. I have made the President's goal of 
eliminating childhood lead poisoning by 2010 a high priority for Region 
7. We are taking comprehensive action to address lead issues using 
CERCLA, TSCA, RCRA and CAA authorities.
    Specific to OPPTS, we are supporting State programs through 
cooperative agreements, working directly with local health departments, 
and providing educational outreach at community and professional 
events. We are currently working with 57 priority city/county/district 
health departments in the region at high risk for childhood lead 
poisoning.
    Asbestos in Schools.--Region 7 has been working toward the EPA goal 
of reducing public exposure to asbestos hazards through education, 
outreach and timely customer service. We have reached more than 2 
million children in Region 7 schools through our Healthy Schools 
initiative.

                                 ______
                                 
        Responses by James B. Gulliford to Additional Questions 
                         from Senator Jeffords

    Question 1. As I mentioned in my opening statement, a number of 
recent scientific developments have changed our understanding of the 
human health risks posed by industrial chemicals. Studies have found 
widespread human exposure to untested chemicals and linked many of 
these chemicals to cancer and neurodevelopmental disorders. However, 
the EPA has required testing of less than 200 of the 62,000 chemicals 
in commerce since 1979 and regulated only five. EPA's voluntary 
programs are helping to generate basic screening level data on many 
chemicals, but the vast majority remain unevaluated. If confirmed, what 
will you do to ensure that basic health and safety data is developed on 
all industrial chemicals so we can identify those that may threaten 
public health?
    Response. Since 1998 the Agency's focus has been on the subset of 
approximately 3,000 High Production Volume (HPV) chemicals, which are 
produced and/or imported in annual volumes of 1 million pounds or more 
across all U.S. companies. The Voluntary Children's Chemical Evaluation 
Program (VCCEP) involves data collection and evaluation of chemicals 
that are of concern based on their potential risk to children. 
Additionally, the Existing Chemicals Program's data development efforts 
also focus on improving our understanding of the sources and pathways 
of exposures to PFOA. Data received through these voluntary and 
regulatory mechanisms will assist EPA in choosing the most effective 
risk management actions.
    Recent regulatory activities have been associated with development 
of Significant New Use Rules (SNURs) for perfluorooctyl sulfonate 
(PFOS) derivatives and two polybrominated diphenylethers (penta- and 
octa-PBDE).

    Question 2a. There are approximately 2800 chemicals in the 
voluntary High Production Volume (HPV) Challenge program. In President 
Bush's budget proposal for fiscal year 2007, he states that, under the 
HPV program, EPA will ``identify chemicals of potential concern that 
may require additional work, currently anticipated to involve 5 to 10 
percent of screened chemicals.'' Based on this statement, am I correct 
that EPA anticipates that approximately 140 to 280 chemicals of 
potential concern are likely to warrant additional review?
    Response. EPA has undertaken a screening and assessment effort that 
will result in identifying chemicals for further review based on the 
chemicals' potential for concern. The review of these HPV chemicals 
will begin in early fiscal year 2007. The need for further work on a 
subset of these chemicals will be determined after the initial reviews 
are completed.

    Question 2b. The budget also states that EPA plans to ``complete 
review of 50 chemicals'' and ``initiate review of 15 more''. Does this 
mean that in fiscal year 2007, EPA will complete review of 50 HPV 
chemicals and initiate review of 15 additional HPV chemicals? If so, 
why isn't EPA going to initiate review of all chemicals of potential 
concern?
    Response. The numbers cited in this question refer to HPV chemicals 
sponsored under the auspices of the Organization of Economic and 
Cooperative Development (OECD)/Screening Information and Data Sets 
(SIDS) and would be in addition to EPA's work under the HPV Challenge 
Program. Again, EPA has begun a screening and assessment process which 
will identify those chemicals for further work that are of the most 
concern. The purpose of the screening process is to facilitate the 
order of review of the data in the Challenge Program submissions and to 
provide a structured review process for determining hazard potential 
for substances. The key features of the screening process are as 
follows:
    Tier I. Automated Screening: Tier I is an automated process in 
which key data are screened against predetermined criteria to establish 
logical groupings from which OPPT can select chemicals/categories for 
further review;
    Tier II. Manual Review and Characterization: In Tier II the Agency 
will conduct a more in-depth review of the data from the Challenge 
Program submissions for quality and completeness; develop a screening 
level hazard assessment based on hazard data provided by the sponsors; 
and inform sponsors and the public of its findings. Tier II review 
could potentially include additional or updated hazard information of 
which EPA and/or sponsors or other parties have become aware.

    Question 2c. Given the needs of the chemical review program, does 
EPA have the resources it needs to review High Production Volume 
chemicals of concern?
    Response. Enactment of the President's budget for fiscal year 2007 
will provide EPA with adequate resources for the HPV Challenge Program, 
enabling the Agency to maintain its planned pace for reviewing and 
making basic screening level hazard data obtained through the program 
available to the public.

    Question 3. EPA recently announced a voluntary nanotechnology 
stewardship program to assemble basic information about how 
nanomaterials are being used by industry. If confirmed, will you work 
to ensure that this program is implemented as soon as practicable? In 
addition, if confirmed, will you follow the recommendation of the EPA 
Advisory Panel and issue an information gathering order under TSCA 
section 8 to provide the Agency with a minimum amount of information 
from all companies using nanomaterials and to encourage participation 
in the stewardship program?
    Response. EPA is moving toward a decision on a possible stewardship 
program for nanoscale materials in an open, transparent, inclusive and 
expeditious process. EPA is considering the input provided in an 
overview report prepared by the National Pollution Prevention and 
Toxics Advisory Committee (NPPTAC) in November 2005 which includes a 
discussion of the use of TSCA section 8 reporting rules for nanoscale 
materials in an evaluation phase of a stewardship program. Scientific 
peer consultations for material characterization and management 
practices will engage stakeholders on these key elements of the program 
this spring. The current schedule is for EPA to make a decision on 
implementation in the fall of 2006.

    Question 4a. During your tenure as Regional Administrator, EPA 
Region 7 learned that houses near the St. Louis Airport were being 
demolished in violation of the applicable EPA NESHAP asbestos rules. 
Rather than take enforcement action to prevent further violations and 
impose appropriate penalties, Region 7 issued an Administrative Order 
on Consent on May 1, 2003 that essentially allowed the demolition of 
houses to continue with a specific waiver from the asbestos rules. (a) 
Is this information accurate?
    Response. EPA and the St. Louis Airport Authority (SLAA) entered 
into an Administrative Order on Consent effective May 1, 2003, 
resolving issues relating to the demolition of asbestos-containing 
structures. Under the Order, the SLAA was allowed to demolish certain 
residential and commercial structures following work practices 
specifically designed to minimize the release of any dust, including 
potential asbestos fibers, without first removing wall systems or 
ceilings with asbestos-containing joint compound and ceilings with 
asbestos texturing material, so long as all other regulated asbestos-
containing material in the structure was removed prior to demolition, 
and the remaining joint compound and ceiling texture material was 
thoroughly wetted.

    Question 4b. If so, please comment on whether you believe that 
order was consistent with your obligation to enforce EPA rules and 
protect human health and the environment.
    Response. When EPA learned in January 2003 that the SLAA had been 
demolishing homes with small amounts of asbestos in joint compounds and 
texturing materials still in place, that practice was halted until we 
could put in place an enforceable agreement with the SLAA that required 
specific measures designed to be protective of the environment and 
nearby residents. The resulting Administrative Order on Consent was 
consistent with my obligation to enforce EPA rules and protect human 
health and the environment.

    Question 4c. The Region 7 order appears to have been revoked in 
August 2004 soon after it received attention from the media. Please 
explain what occurred and why you took the actions taken.
    Response. On March 3, 2004, the Order was extended for an 
additional 1-year period, but was then rescinded in August 2004, based 
on Clean Air Act statutory language limiting the duration of compliance 
orders to 1 year.

    Question 4d. Some have suggested that your management of this issue 
shows a willingness to let political pressure outweigh protection of 
human health and compliance with the law. Please respond.
    Response. I share your concerns for protecting human health and the 
environment. I based my decision on what I understood to be the 
scientific and legal situation at that time. I agree that it is 
appropriate for decisions to be driven by sound science.

    Question 5. What is the status of EPA's evaluation of the 
application to register the wood treatment chemical Acid Copper 
Chromate?
    Response. The Agency has five pending applications for new wood 
preservative products containing acid copper chromate (ACC) from three 
different registrants. In 2004, a letter was sent to each of these 
companies, along with the registrant of the only currently registered 
ACC product (Osmose Inc.), outlining the data the Agency needed in 
order to make a decision regarding the safety of ACC. These data 
included worker exposure data and studies to determine the potential 
for exposure to chromium on treated wood surfaces. This data has only 
recently been submitted.
    The studies are now under review and once the reviews are 
completed, the Agency will conduct a risk assessment to determine the 
level of risks these proposed applications pose to people who might be 
exposed to ACC (including workers and residential deck owners). Only 
after the appropriate scientific questions have been addressed will the 
Agency be in a position to make decisions on the applications, 
including potential risk mitigation. The registered product has not 
been produced or marketed for several years and the company has said 
they have no intention to do so at this time.

    Question 6. Please explain how this effort is consistent with EPA's 
initiative to phaseout arsenic treated wood.
    Response. Chromated copper arsenate (CCA) was voluntarily removed 
from virtually all uses in the residential market in 2003. It is no 
longer legal to treat wood intended for residential use with CCA. 
Therefore, the Agency has completed the ``phase-out'' of newly 
available arsenic-treated wood. Limited industrial uses of CCA remain 
(e.g. utility poles, piers etc.).
    Acid copper chromate (ACC) registrations are being sought by 
applicants as an alternative to CCA for general wood preservation. ACC 
does not contain arsenic, but chromium.

    Question 7. Please also describe the status of EPA's investigation 
into recent claims that the chromium industry failed to disclose all 
data regarding the health and safety effects of hexavalent chromium.
    Response. The allegations recently made regarding the failure of 
the chromium industry to disclose all health and safety data were made 
in reference to the recently completed reevaluation of the Occupational 
Safety and Health Administration (OSHA) safety standards for chromium. 
We are not aware if OSHA is conducting any investigations into the 
allegations.
    FIFRA section 6(a)(2) requires companies holding a registration to 
report adverse environmental, safety and health information to the EPA 
if they become aware of such data. To the best of our knowledge, 
neither the current nor potential registrants of ACC or CCA generated 
or were aware of the subject data. If it is determined that a violation 
of FIFRA section 6(a)(2) may have occurred, we will take appropriate 
action.
                                 ______
                                 
        Responses by James B. Gulliford to Additional Questions 
                        from Senator Lautenberg

    Question 1. What are your views on the rights of States to adopt 
public health protections stronger than Federal laws?
    Response. As a general matter, I support the States' rights to 
adopt public health protections that are stronger than Federal laws, 
unless inconsistent with Federal law.

    Question 2. A GAO report last year found that EPA ``lacks 
sufficient data to ensure that potential health and environmental risks 
of new chemicals are identified.'' What are your plans for addressing 
this lack of information regarding the safety of new chemicals?
    Response. I have not been briefed on the findings in the GAO 
report. I would be happy to discuss the GAO findings and 
recommendations as well as the TSCA new chemicals program at some point 
in the future. EPA is proud of the progress it has made in protecting 
human health and the environment. OPPTS, in its written response to the 
GAO report, stated, ``the Agency utilizes a variety of tools including 
modeling, voluntary and innovative approaches, international 
coordination, and information gathering and dissemination to ensure 
that we have the ability to make informed decisions and that there is 
transparency for a wide range of stakeholders and the public.
                                 ______
                                 
        Responses by James B. Gulliford to Additional Questions 
                           from Senator Boxer

                  INTENTIONAL HUMAN PESTICIDE TESTING

    Question 1. Please list and describe any pesticide industry 
representatives that EPA or its contractors or agents met or conferred 
with in 2005 or 2006 to discuss the testing of pesticides on humans. 
Please provide me with all documents, including calendar entries, 
meeting notes, memoranda, e-mails and other documents that relate to 
the dates, times, participants, and subject matter of any such meetings 
or conference calls. Please provide me with all documents, including 
calendar entries, meeting notes, memoranda, e-mails and other documents 
that EPA or its contractors received from or transmitted to pesticide 
industry representatives regarding the testing of pesticides on humans 
during 2005 or 2006, including copies of any human studies involving 
pesticides, any EPA evaluation or review of such studies, and any 
suggestions or comments on EPA policy or rules for such studies from 
the industry.
    Response. EPA has conducted a search for documents that are 
responsive to your request. Attached are documents identified in that 
search that are non-privileged and public. We have withheld documents 
that are deliberative in nature, subject to attorney-client privilege, 
and/or have been claimed to be confidential business information.

    Question 2. Please describe the amount of funds, time and other 
resources, if any, that EPA or its contractors spent processing, 
reviewing, evaluating or otherwise handling studies in which humans 
were exposed to pesticides after the date of enactment of the 2005 EPA 
appropriations amendment regarding the testing of pesticides on humans. 
Please provide any records reflecting EPA or its contractors' work on 
pesticide human testing issues, or in processing, reviewing, evaluating 
or otherwise handling any studies involving pesticide testing or 
exposure on humans, since the enactment of the 2005 EPA appropriations 
amendment regarding the testing of pesticides on humans.
    Response. Immediately upon enactment of EPA's fiscal year 2006 
Appropriations Act (Public Law 109-54), the Agency ceased all types of 
work that were prohibited by that law. The law directed EPA, in effect, 
not to ``accept, consider, or rely on . . . third-party intentional 
dosing human toxicity studies for pesticides'' until EPA issued a final 
rulemaking on that issue. Thus, from the date the prohibition took 
effect, August 2, 2005, until EPA issued the final rule on January 26, 
2006, neither the Agency's staff nor its contractors spent resources 
reviewing, evaluating, or otherwise handling covered studies.
    As part of its general management systems, the Agency monitors 
expenditures of staff and contractor resources for particular program 
activities, such as registration and tolerance reassessment. Nearly all 
of the effort involved with working on covered human studies has 
occurred under the tolerance reassessment program, but such work 
constitutes only a small portion of the overall resources devoted to 
this program. EPA does not maintain records that permit an estimate of 
the amount of resources involved in review of any specific human study 
or, for that matter, any other particular study. In general, most of 
EPA's work on these studies since January 26, 2006 has involved 
preparations for meetings of the Human Studies Review Board. As noted 
earlier, from August 2, 2005 until EPA issued the final rule on January 
26, 2006, neither the Agency's staff nor its contractors spent 
resources reviewing, evaluating, or otherwise handling covered studies.

    Question 3. Please provide me with all documents, including 
calendar entries, meeting notes, memoranda, e-mails and other documents 
that reflect comments or other input from the Office of Management and 
Budget or any other component of the Executive Office of the President 
during 2005 or 2006 on EPA's policies, rules, or actions involving the 
testing of pesticides or other toxic substances on humans.
    Response. In 2005, EPA submitted the proposed rule (NPRM) to OMB on 
August 1 for review under E.O. 12866. A copy of the submission package 
is included in the public docket as part of the E.O. 12866 Review 
Documentation package, which also documents changes made during the 
review period and identifies any that were made at the recommendation 
of OMB as required by the E.O.
    On August 4, EPA did an introductory briefing for OMB and other 
E.O. 12866 reviewers. OMB sent out the invitation to the external 
reviewers.
    On August 9, OMB invited EPA to attend an E.O. 12866 meeting with 
CropLife America. OMB set-up the meeting with CropLife and has 
documented the meeting in the OMB docket (e.g., list of attendees & 
summary).
    On August 10, OMB arranged for EPA to brief the Human Subjects 
Research Subcommittee (HSRS), Committee on Science, National Science 
and Technology Council. Attached is the EPA calendar entry for this 
meeting, which includes a copy of the HSRS e-mail and agenda.
    On August 23, EPA held a conference call with OMB to discuss 
revisions to the NPRM.
    On August 29, EPA did a briefing about the revisions to the NPRM 
for other E.O. 12866 reviewers (mostly HSRS). OMB sent out the 
invitation to the external reviewers.
    On September 2, OMB concluded the E.O. 12866 Review of the NPRM. 
This is documented on their Web site, but here is an e-mail that 
confirmed it for EPA.
    In 2006, on January 13, EPA held a conference call with OMB to 
discuss the status and schedule for the Final Rule (FRM).
    On January 18, EPA did a ``heads-up'' briefing for HSRS members. 
OMB sent out the invitation to HSRS.
    On January 20, the FRM package went to OMB for review under E.O. 
12866. A copy of the submission package is included in the public 
docket as part of the E.O. 12866 Review Documentation package, which 
also documents changes made during the review period and identifies any 
that were made at the recommendation of OMB.
    On January 25, EPA had a conference call with OMB to finalize any 
edits and OMB concluded review.
    The calendar entries referenced above are attached. We have also 
included calendar entries for Susan Hazen, the Acting Assistant 
Administrator for OPPTS.

    Question 4. Please provide me with all documents, including 
calendar entries, meeting notes, memoranda, e-mails and other documents 
that reflect any meetings or discussions EPA or its contractors or 
agents have had with industry representatives or scientists working 
with or for industry involving any reevaluation of the toxicity or 
carcinogenicity of arsenic compounds in 2005 or 2006.
    Response. EPA has conducted a search for documents that are 
responsive to your request. Attached are documents identified in that 
search that are non-privileged and public. We have withheld documents 
that are deliberative in nature, subject to attorney-client privilege, 
and/or have been claimed to be confidential business information.

    Question 5. Please provide me with all documents, including 
calendar entries, meeting notes, memoranda, e-mails and other documents 
that relate to the Office of Management and Budget's involvement in EPA 
risk assessment policies and peer review policies during the years 2005 
and 2006. Please provide a list and description of any chemicals 
affected, including by a delay, by OMB's actions and a description of 
the chemical's current status in EPA's regulatory process.
    Response. EPA has conducted a search for documents that are 
responsive to your request. Attached are documents identified in that 
search that are non-privileged and public. We have withheld documents 
that are deliberative in nature, subject to attorney-client privilege, 
and/or have been claimed to be confidential business information.

    Question 6. Please provide me with all documents, including 
calendar entries, meeting notes, memoranda, e-mails and other documents 
that relate to any comments or input EPA received from the Office of 
Management and Budget, the Department of Defense, or their agents or 
contractors, regarding the human health or environmental risks or 
toxicity of perchlorate, or EPA policies or standards for cleaning up 
perchlorate.
    Response. EPA has conducted a search for documents that are 
responsive to your request. Attached are documents identified in that 
search that are non-privileged and public. We have withheld documents 
that are deliberative in nature, subject to attorney-client privilege, 
and/or have been claimed to be confidential business information.

    Question 7. Please list and describe the number of times, if any, 
that EPA has met with Syngenta or its representatives or any other 
person who is not an employee or contractor for the government to 
discuss atrazine since EPA initiated the process of developing the 
Interim Reregistration Eligibility Determination and Reregistration 
Eligibility Determination for atrazine and triazine herbicides that 
have a common mechanism of action?
    Response. EPA has conducted a search for documents that are 
responsive to your request. Attached are documents identified in that 
search that are non-privileged and public. We have withheld documents 
that are deliberative in nature, subject to attorney-client privilege, 
and/or have been claimed to be confidential business information.

    Question 8. Please provide me with all documents, including 
calendar entries, meeting notes, memoranda, e-mails and other documents 
that relate to such meetings.
    Response. EPA has conducted a search for documents that are 
responsive to your request. Attached are documents identified in that 
search that are non-privileged and public. We have withheld documents 
that are deliberative in nature, subject to attorney-client privilege, 
and/or have been claimed to be confidential business information.

    Question 9. Do you support additional studies be conducted or 
supported by EPA similar to the CHEERS study?
    Response. EPA Administrator Stephen Johnson canceled the CHEERS 
study on April 8, 2005. I support that decision.
    It is necessary that the EPA continues to pursue the goal of 
protecting children's health through quality and credible research. A 
fundamental aspect of scientific progress is the continual review and 
reassessment of our research processes that formulate studies. An 
Agency Human Studies Review Board (HSRB) has been established to review 
study protocols to purposely ensure that ethical safeguards are upheld. 
I fully intend to use the ethical knowledge of the HSRB and will 
continue to be committed to ensure that EPA's research studies are 
based on sound science and the application of highest ethical 
standards.

    Question 10. Do you support non-intentional dosing studies with 
pesticides on orphans or abused children?
    Response. I do not and will not support the use of any pesticide 
study, internal or external that involves intentional or non-
intentional dosing, which does not meet the ethical standards as put 
forth in the Common Rule and the extension of those standards as stated 
in EPA's Third Party Rule, which specifically applies to all children 
and pregnant women. To assure that these ethical safeguards are upheld, 
EPA has established a Human Studies Review Board (HSRB) to review study 
protocols and studies submitted to the Agency. I fully intend to use 
the newly formed HSRB and their guidance in adhering to ethical 
standards.

                               SUPERFUND

    Question 11. Did you request more funds than you received in 
connection with the Omaha lead site in any fiscal year?
    Response. The Omaha Lead site is currently among the highest funded 
Superfund cleanups in the country. Over the last two fiscal years (2005 
and 2006) we have or will receive all of the funding requested for the 
project. We have been or will be obligating in excess of $15M each of 
these years.

    Question 12. Do you believe that 10-15 years was ever an acceptable 
timeframe for cleanup given the continuing exposure to young children 
at the site?
    Response. With over 30,000 properties to sample and potentially 
over 15,000 properties to remediate, the EPA was aware that the time to 
address all of these properties would be extended. As a result, EPA 
chose to issue an Interim Record of Decision (ROD) to address the 
highest risk properties (e.g., properties with soils contaminated with 
lead concentrations above 800 ppm, properties such as day care 
facilities used frequently by young children, and properties where a 
child with an identified elevated blood lead level reside) over the 
next 3 years. The remaining properties at a lower risk level will be 
addressed in subsequent years, relying in the interim on health 
education and lead hazard awareness to reduce risk.
    We are currently funding health education and outreach through the 
Douglas County Health Department. The Community Advisory Group has been 
active in delivering lead awareness messages widely across Omaha. The 
EPA was able to clean up over 1000 properties in 2005--more than at any 
other site nationwide since inception of the Superfund program--and 
plans to complete the same number in 2006, 2007, and 2008.

    Question 13. What efforts are underway to conduct enforcement 
against PRPs at this site? Could these efforts have been begun sooner? 
If not, why not?
    Response. Enforcement efforts are underway at the site. The EPA has 
identified and notified four parties of their potential liability at 
the site, including ASARCO, Inc., Union Pacific Railroad Company, Aaron 
Ferer & Sons, Co., and Gould Electronics, Inc. The EPA is continuing 
discussions with each of these parties concerning their liability at 
the site. The discussions with ASARCO are in response to its filing of 
bankruptcy in August 2005. In addition, the EPA is continuing to 
collect information to determine if other parties may be responsible 
for site contaminants.
    Enforcement efforts at the Omaha Lead site were initiated 
immediately upon identifying the need to take response actions at the 
site. In 1999, the EPA notified ASARCO of their potential liability at 
the site and requested that ASARCO perform response actions at the site 
to address lead contaminated soils. In 2002, after proposing the site 
for inclusion on the National Priorities List, the EPA asked each of 
the four identified parties to conduct the remedial investigation and 
feasibility study (RI/FS). Each of the four parties declined to perform 
the RI/FS work. After completing the Interim Record of Decision in 
December 2004, the EPA requested an offer from the parties to perform 
the necessary cleanup work. An acceptable offer was not presented, so 
EPA proceeded with a fund-lead cleanup to address those properties 
posing the highest risk to children.

    Question 14. Why were parks and schools not tested at Omaha lead 
earlier in the process? How long will this take and how much will it 
cost? Is it in the current budget?
    Response. The Omaha Public School District (OPS) tested their 
properties during the early stages of the project and also performed 
any remediation work that was found to be necessary. The OPS 
coordinated this work with EPA. Most Private schools were also sampled 
by EPA early in the site investigation, although earlier this year EPA 
identified eight private schools that had not yet been sampled. EPA has 
since completed sampling at five of these private schools and is 
currently arranging for access to sample the remaining three.
    The EPA did sample 7 parks early in the site investigation. This 
sampling did not find any of these properties to be contaminated above 
levels of concern. Children have less potential exposure to 
contaminated soils in public parks than at private residences, since 
contaminated soils at a residence typically get brought into the house 
through tracking or pets, and represent a 24-hour exposure source. For 
this reason, EPA has prioritized the sampling and remediation of 
private residences over parks.
    Site-specific sampling plans are being developed for some of the 
larger parks which are hundreds of acres in size. EPA plans to complete 
the park sampling this year. There are a total of 65 public parks 
identified in the focus area at the Omaha Lead Site.
    Funding for completing both the private school sampling and park 
sampling is included in the current project budget.

    Question 15. Could anything be done to accelerate cleanup at the 
Omaha lead site including requesting additional funding? Does the pace 
of cleanup affect the number of children expected to ingest sufficient 
levels of lead to exceed 10 mg/dl blood lead levels?
    Response. The current pace of cleanup is at an extremely high 
level, which may not be able to be accelerated (even with additional 
funding) without creating logistical problems in a residential setting 
like Omaha. In addressing the highest risk properties early and 
generating a high level of awareness in the community through our 
actions and health education efforts by local community groups and 
health departments, the number of children with elevated blood lead 
levels has been reduced. Soil remediation and health education outreach 
have proven to be very effective in controlling the number of children 
with elevated blood-lead levels in the short term. For the long term, 
soil remediation removes a primary source of lead exposure providing 
protection for the children of Omaha.

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     Statement of William L. Wehrum, Nominated to be an Assistant 
 Administrator, Office of Air and Radiation, Environmental Protection 
                                 Agency

    Mr. Chairman, Senator Jeffords, Members of the committee, thank you 
for the opportunity to testify before you today as the nominee for the 
position of Assistant Administrator of Air and Radiation at the U.S. 
Environmental Protection Agency. I am grateful to President Bush for 
nominating me for this position and I appreciate your consideration.
    I am pleased to see so many friends and colleagues here today. I am 
especially pleased to be joined by my wife, my mother, my two sisters, 
and my nieces and nephews.
    President Bush has provided consistent and clear expectations to 
Administrator Johnson and EPA--to accelerate the pace of environmental 
progress while maintaining our Nation's economic competitiveness. We 
have taken this task to heart at my time at EPA, and I am proud of what 
we have accomplished.
    The air is cleaner today than it has been in generations. EPA 
programs have resulted in a substantial reduction in air pollution and 
correspondingly dramatic improvements in air quality. Much of this 
progress is attributable to the good work of those who came before us 
over the last 35 years. But, under the leadership of President Bush, my 
predecessor, and the tireless efforts of EPA career staff, we have made 
significant progress during my tenure.
    Perhaps highest on our list of accomplishments is the Clean Air 
Interstate Rule. This standard will reduce emissions from powerplants 
by millions of tons, help solve some of the toughest and most 
persistent air quality problems in the Nation, and deliver the largest 
health benefits of any EPA rule in more than a decade. Other notable 
rules include the Clean Air Mercury Rule, the Clean Air Visibility 
Rule, and the non-road diesel engine rule. These rules will assure 
continued, significant progress toward cleaning our air. If confirmed, 
I promise to buildupon these successes.
    Mr. Chairman, I am appreciative of this committee's efforts to pass 
Clear Skies legislation. Similar to the President and Administrator 
Johnson, I believe enactment of legislation to reduce and cap emissions 
of sulfur dioxide, nitrogen oxides, and mercury for powerplants is a 
priority and I intend to work to that end. Other near-term priorities 
will include the Renewable Fuel Standard, a standard for locomotive and 
marine engines, and the reviews of the particulate matter, ozone, and 
lead national ambient air quality standards.
    My priorities also will include the continued growth of our many 
successful voluntary and public/private partnership programs. Perhaps 
the best example is the Energy Star program. Last year alone, Americans 
with the help of Energy Star prevented the release of 334 million 
metric tons of greenhouse gas emissions--equivalent to the emissions 
from 23 million vehicles--and saved about $12 billion on their utility 
bills. These programs are particularly noteworthy because they 
accomplish significant improvements in human health and the 
environment, but do so in a collaborative way rather than through our 
usual regulatory approach.
    All of these efforts will be guided by the goal of protecting human 
health and the environment, but doing so in the smartest and most 
efficient way possible.
    I believe that I am well qualified for this position. I started my 
career as a chemical engineer. Most of my time was spent in a specialty 
chemical plant. I had responsibility for implementing the multitude of 
health, safety, and environmental rules that applied to our operations. 
I became acutely aware of the value of clear and concise rules, which 
are particularly important to the operators, engineers, and maintenance 
crews directly responsible for the actions needed for day to day 
compliance. I also experienced first hand the frustration and challenge 
of decoding complicated rules that sometimes seemed to be written 
without apparent understanding of the real consequences for those 
required to implement them in the field.
    This work inspired me to pursue a law degree, which I obtained by 
attending classes at night while still working in the plant during the 
day. I was fortunate to have the opportunity after graduation to come 
to Washington to work with two top-flight law firms. I learned not only 
the business of law, but also the complex legal and policy questions 
that drive the regulatory process. I worked extensively with EPA and 
came to appreciate the dedication and energy that motivates EPA 
employees and moves our Nation toward continued environmental progress.
    I was given the opportunity to join EPA in 2001. I came on board as 
Counsel to the Assistant Administrator of Air and Radiation. In that 
capacity, I had the privilege of advancing some of the greatest 
environmental issues of our day. I consider it a rare privilege to now 
have the opportunity to serve as the Assistant Administrator.
    I will close by saying that I have an avid interest in clean air by 
both vocation and avocation. Running is one of my few pastimes that has 
survived the last several years of engineering, law school, law 
practice, and government service. I run well over 1,000 miles in a 
typical year. Most of this takes place within inches of major roadways 
here in the DC area. I can tell you that this experience has indelibly 
impressed upon me the need and value of clean air. The occasional 
smoking truck or bus and the occasional smoking stack are stark 
reminders to me of the progress we have made and the challenges that 
remain.
    Mr. Chairman and members of the committee, I thank you again for 
the opportunity to be here today. I am happy to answer any questions 
you have.
                                 ______
                                 
        Responses by William L. Wehrum to Additional Questions 
                          from Senator Inhofe

    Question 1. If a powerplant wants to make energy efficiency 
improvements or install pollution control devices under the current 
regulations could these changes trigger New Source Review?
    Response. Under the current regulations, major new source review 
(NSR) is triggered if there is an emissions increase at the unit and a 
significant net emission increase at the stationary source following a 
physical change or change in the method of operation. It is certainly 
possible that some energy efficiency improvements and pollution control 
device installations at powerplants could trigger major NSR under the 
current regulations.
    I believe promoting energy efficiency improvements and pollution 
control device installation is good environmental policy. For example, 
where emissions are capped by other programs under the Clean Air Act, 
such as is the case with utility SO2 and NOx emissions, 
efficiency improvements will encourage productive capacity of existing 
units without increasing emissions. Flexibility concerning pollution 
control device installation is also critical to agency programs. For 
example, installation of flue gas desulfurization (scrubbers) and 
selective catalytic reduction are important to implementation of the 
Clean Air Interstate Rule, which will achieve significant reductions in 
utility SO2 and NOx emissions and with our other Clean Air 
programs, bring most of the eastern United States into attainment with 
the ozone and fine particulate matter standards.
    Our continuing goal is to make further improvements in the NSR 
program to maintain the environmental effectiveness of the program yet 
eliminate some of the barriers to energy efficiency improvements and 
pollution control device installations at industrial sources across the 
United States.

    Question 2. IGCC is a promising technology which is still being 
improved and refined. However, I am concerned that the Agency is 
pushing this technology at the expense of other viable alternatives. 
Could you explain what role you see the Agency providing in terms of 
encouraging all new technologies?
    Response. To meet the growing demand for electricity in the United 
States, the Administration recognizes that coal must play a significant 
role well into the future. To protect public health and the 
environment, the United States should develop a cleaner, more efficient 
means of utilizing coal resources to generate electricity. One such 
promising option is Integrated Gasification Combined Cycle (IGCC). EPA 
has been actively engaged over the past 18-24 months with the 
Department of Energy (DOE) and the Gasification Technologies Council 
exploring the feasibility of deploying IGCC units in the electric power 
market.
    While IGCC is a promising technology, it is currently not cost-
competitive with competing technologies, such as super-critical 
pulverized coal. In a memorandum issued by Steven Page earlier this 
year, we explain that the NSR program should not be used to force IGCC 
to replace pulverized coal technology as a matter of law. It is my view 
that IGCC soon will become cost-competitive and may begin to replace 
pulverized coal technology, but that this shift should be dictated by 
market forces.
    The President's goal in introducing the Clear Skies initiative was, 
in part, to put in place a cap-and-trade market that sets targets and 
dates that would advance a market for clean coal instead of forcing 
fuel switching to other kinds of generation fuels. Our Clean Air 
Interstate Rule and Clean Air Mercury Rule follow the same goal. In 
this kind of marketplace, many types of technologies can flourish.
    In addition to efforts related to IGCC, EPA has several Clean 
Energy Programs that are designed to help energy consumers in all 
sectors, State policymakers and energy providers improve their 
knowledge about Clean Energy technology and policy options by providing 
objective information, creating networks between the public and private 
sector and providing technical assistance. EPA also offers recognition 
to leading organizations that adopt Clean Energy policies and 
practices.

    Question 3. Did EPA make changes to the proposed PM standard based 
on recommendations of the CASAC? Was there any information which CASAC 
lacked in terms of new studies?
    Response. Under the Clean Air Act (CAA), CASAC is charged with 
reviewing both the air quality criteria published under CAA section 108 
and the national primary and secondary national ambient air quality 
standards (NAAQS) promulgated under CAA section 109, and recommending 
to the Administrator any new standards and revisions of existing 
criteria and standards as may be appropriate under sections 108 and 
109. Because of this statutory advisory role, the Administrator always 
considers the advice of CASAC carefully in formulating decisions 
regarding the NAAQS. In the preamble to the proposed PM NAAQS rule, the 
Administrator explains the extent to which his proposed decisions 
correspond to the recommendations of CASAC. Where his proposed decision 
on the PM NAAQS differs from the committee's advice, he addresses the 
rationale for his proposed decision and identifies the points of 
departure from CASAC's recommendations, as required by CAA section 
307(d)(3).

    Question 4. The scientific basis for a coarse PM standard in any 
area, urban or rural, appears to be weak and many scientific studies 
have been ignored. In addition, the program you have proposed would be 
nearly impossible to implement. Could you comment on these studies and 
the implementation proposal?
    Response. While there are a limited number of studies of the health 
impacts of exposure to thoracic coarse particles, the Administrator has 
proposed to conclude that these studies provide sufficient evidence to 
support regulating those particles through an indicator focusing on the 
ambient mix of particles generally present in urban environments, while 
taking comment on other interpretations of these studies. As stated in 
the proposal preamble in the section outlining the proposed 
PM10-2.5 indicator (71 FR 2666-2667):
    Ambient concentrations of thoracic coarse particles generally 
reflect contributions from local sources, and the limited information 
available from speciation of thoracic coarse particles and emissions 
inventory data indicate that the sources of thoracic coarse particles 
in urban areas generally differ from those found in nonurban areas. As 
a result, the mix of thoracic coarse particles people are typically 
exposed to in urban areas can be expected to differ appreciably from 
the mix typically found in non-urban or rural areas. Ambient 
PM10-2.5 exposure is associated with health effects in 
studies conducted in urban areas, and the limited available health 
evidence more strongly implicates the ambient mix of thoracic coarse 
particles that is dominated by traffic-related and industrial sources 
than that from uncontaminated soil or geologic sources. The limited 
evidence does not support either the existence or the lack of causative 
associations for community exposures to thoracic coarse particles from 
agricultural or mining industries. . . . Collectively, this evidence 
suggests that a more narrowly defined indicator for thoracic coarse 
particles should be considered that would protect public health against 
effects that have been linked with the mix of thoracic coarse particles 
generally present in urban areas. Such an indicator would be 
principally based on particle size, but also reflect a focus on the mix 
of thoracic coarse particles that is generally present in urban 
environments and the sources that principally generate that mix. . . . 
This indicator would also be consistent with an appropriately cautious 
interpretation of the epidemiologic evidence that does not potentially 
over-generalize the results of the limited available studies.
    Based on this rationale, the Administrator concluded that it was 
appropriate to propose a PM10-2.5 NAAQS despite the 
limitations and uncertainties in the information available.
    EPA is now considering the issues associated with transitioning 
from current PM standards to any new standards that may result from 
EPA's December 20, 2005 proposal. On February 9, 2006, EPA published an 
Advance Notice of Proposed Rulemaking (ANPR) on Transition to New or 
Revised Particulate Matter National Ambient Air Quality Standards (71 
FR 6718-6729). As part of this ANPR, EPA is requesting comment on 
numerous issues associated with implementing the proposed 
PM10-2.5 NAAQS. The comment period for the ANPR will close 
July 10, 2006, and will be followed by a proposed rule on transition. 
We welcome public comment on issues associated with implementing the 
PM10-2.5 NAAQS throughout this process.

    Question 5. I realize the Administrator's final decision in 
September will be based solely on public health considerations. But 
many Governors, mayors, Members of Congress and businesses are 
interested in knowing what might happen if the standard is revised. EPA 
has projected the number of counties in 2010 and 2015 that it says 
would ``record violations'' if the standard is revised. Is it likely 
that the number of non-attainment counties would be greater than the 
number of counties that record a violation?
    Response. It is highly likely that the number of nonattainment 
counties would exceed the number of counties with violating monitors. 
However, at this time,it is not possible for EPA to predict which 
counties would be included in any nonattainment area designated under 
revised PM2.5 or PM10-2.5 NAAQS. Designations 
decisions are extremely complex, and required the Administrator to 
weigh multiple factors besides proximity to a violating monitor. In the 
past, EPA has considered factors such as MSA boundaries; emissions; air 
quality; population density and degree of urbanization; traffic and 
commuting patterns; expected growth (including extent, pattern, and 
rate of growth); meteorology (weather/transport patterns); geography/
topography (mountain ranges or other air basin boundaries); 
jurisdictional boundaries (e.g., counties, air districts, Reservations, 
etc.); level of control of emission sources. Factors such as these will 
be considered in future designation decisions, and would determine the 
number and location of counties that would be designated nonattainment.

    Question 6. Can or should we have emission limits on substances 
where there is no consensus on emission measurement technique, except 
that no known protocol is accurate?
    Response. It would be difficult to formulate an emission limit for 
a source category for which we do not have reliable direct emission 
measurement techniques or technically sound surrogates for emissions. 
Where the Agency faces such a circumstance, I believe the solution is 
to focus on developing the needed measurement techniques. We actively 
work with stakeholders in the public and private sectors to improve 
measurement techniques.

    Question 7. Please provide your view on EPA setting standards and 
allowing free markets to determine how compliance is achieved?
    Response. EPA is committed to establishing national ambient air 
quality standards that protect public health with an adequate margin of 
safety. Once the standards are set, EPA works in partnership with 
States, industry, environmental groups and other stakeholders to find 
the most cost-effective ways of meeting the nation's air quality goals. 
We have seen evidence from the Acid Rain program and other examples 
that utilizing free market approaches, such as cap and trade programs, 
can help the Nation to reach its air quality goals more quickly and 
cost-effectively than other approaches. This is why we developed Clear 
Skies and the related rulemakings, the Clean Air Interstate Rule 
(CAIR), which relies on market-based cap and trade mechanisms to reduce 
levels of ozone and PM in an effective way across the eastern United 
States, and the Clean Air Mercury Rule (CAMR), which also relies on a 
nationwide cap-and-trade program.

    Question 8. Should environmental standards ever be used to mandate 
process technology selection by an industry?
    Response. We typically set emission limits on sources, rather than 
requiring a particular technology to be put in place. Our goal is to 
provide maximum flexibility for industry to meet the limits in the way 
they see fit.
                               __________
         Responses by William L. Wehrum to Additional Questions
                         from Senator Jeffords

    Question 1a. On March 24, 2006, the Democratic members of the 
Environment and Public Works Committee wrote to you regarding the 
inclusion of language in the proposed Clean Air Mercury rule that was 
drawn directly from memoranda authored by your former colleagues at 
Latham and Watkins. This letter and your response are attached. In 
addition, I wrote to EPA Administrator Michael Leavitt regarding this 
same issue on March 16, 2004 and received a response on July 2, 2004. 
Both of these letters are also attached.
    My understanding of the facts is as follows. On September 4, 2003, 
Claudia O'Brian of Latham and Watkins transmitted two documents 
regarding the mercury rule to EPA career staff via e-mail. The 
transmittal memo mentions that these documents would be discussed at a 
meeting between Edison International and Jeffrey Holmstead the 
following week. You were invited to this meeting. On September 11, 
2003, representatives of Latham and Watkins, on behalf of Edison 
International, briefed EPA staff, including Assistant Administrator 
Jeffrey Holmstead, about these papers and provided Mr. Holmstead with 
these documents. Portions of this material later appeared in the 
proposed mercury rule.
    In your most recent response, you indicated that you received a 
copy of the Latham and Watkins memorandum prior to EPA proposal of the 
mercury rule. You also indicated that ``the memorandum was in wide 
circulation and was placed in the docket on October 1, 2003.'' In 
addition, you stated that ``I contributed to virtually all aspects of 
the rule, including the provisions for a trading program.'' Further, 
you indicated that ``the Latham and Watkins language used in the rule 
came from two places. Some was provided to us by another agency as a 
comment during the interagency review process and that comment was 
placed in the docket for the rulemaking as required. The other language 
was inserted by EPA.'' On January 31, 2004, in an article relating to 
the inclusion of this language in the proposed rule, Jeffrey Holmstead 
was quoted in the Washington Post as saying that ``Neither Bill 
[Wehrum] nor I had any idea this language came from Latham and Watkins. 
. . . Our technical folks who did the subcategorization used it.'' Mr. 
Holmstead is also quoted in that article as saying that ``the law 
firm's language was part of the public record and was passed along to 
EPA by the White House Budget Office and the Energy Department.''
    Are any of the facts above inaccurate? If your answer is yes, 
please indicate which facts are not accurate and detail the specific 
inaccuracy.
    Response. To the best of my knowledge, your assertions above are 
accurate.

    Question 1b. Did you attend or participate in the meeting on 
September 11, 2003 with Edison International?
    Response. I do not recall attending the meeting. At the time, 
meetings scheduled for the Assistant Administrator of OAR were often 
placed on my calendar for informational purposes only; I attended many 
but not all of these meetings.

    Question 1c. When did you first receive a copy of the memorandum or 
memoranda?
    Response. I first received a copy of the memoranda on September 5, 
2003.

    Question 1d. Did you read it prior to issuance of the proposed 
rule?
    Response. Yes.

    Question 1e. Did you have any discussions with Latham and Watkins 
representatives relating to the mercury rule prior to issuance of the 
proposed rule?
    Response. Yes.
    Question 1f. Did any of these discussions relate to mercury trading 
or to the Latham and Watkins memoranda or legal theories relating to 
mercury trading?
    Response. Yes.

    Question 1g. Is it your contention that the inclusion of mercury 
trading theories in the proposed rule was completely unrelated to any 
communications between Latham and Watkins and you or Mr. Holmstead?
    Response. I believe that the Latham and Watkins memorandum played 
little or no role in EPA's decision to propose mercury trading options.

    Question 2a. In your response of April 4, 2006, you indicate that 
some of the information was provided to EPA as a comment during the 
interagency review process, and that comment was placed in the docket 
for the rulemaking, as required. You also indicated that you reviewed 
``most of the comments received through the interagency review 
process.''
    In order to avoid any confusion, please provide us with this 
comment or a link to the precise location of this comment in the 
rulemaking docket.
    Response. Please find enclosed a copy of the comment as it was 
received by EPA. The comment addresses the Agency's authority under 
section 112(n) of the Clean Air Act. The comment may be found in the 
CAMR rulemaking docket at OAR-2002-0056-0108, p. 148.

    Question 2b. Was the comment, which included the Latham and Watkins 
language, ever provided to you or Mr. Holmstead prior to issuance of 
the proposed rule?
    Response. Yes, it was provided to me in an e-mail from the 
Department of Energy.

    Question 2c. Did you or Mr. Holmstead review or approve this 
comment? Did you indicate in any way to EPA staff that it should be 
accepted into the rule?
    Response. I reviewed the comment but I do not recollect if I 
directed staff to include the comment in the proposed rule. During the 
interagency review process for the proposed rule, I received many of 
the comments from other agencies, and I in turn forwarded the comments 
to others at EPA for their review. Interagency comments were often 
discussed within EPA and with the other agencies before decisions were 
made about whether to accept them.

    Question 2d. If your answer is no, or that you do not recall, is it 
your contention that this comment was accepted for inclusion into the 
proposed rule solely on the initiative of the career staff?
    Response. No, it would not have been included in the rule solely on 
the initiative of career staff.

    Question 2e. Had you ever indicated, prior to proposal, to the 
career staff, that a mercury trading concept would need to be included 
in the proposed rule?
    Response. Yes, the proposed rule included two alternative 
approaches to controlling mercury from utilities--a MACT standard and 
an NSPS standard incorporating a trading program. Discussion of a 
possible trading approach began in the summer of 2003, before EPA 
received the Latham and Watkins memorandum, and was widely discussed 
both inside and outside the Agency prior to proposal.

    Question 2f. Including yourself, Mr. Holmstead and any other 
political appointees in the Office of Air and Radiation, how many staff 
in the Office of Air and Radiation were involved in the actual drafting 
of the proposed rule and capable of including the Latham and Watkins 
language in the rule?
    Response. The proposed rule was primarily drafted by staff of the 
Office of Air Quality Planning and Standards' Combustion Group, with 
input from other Agency staff. Senior staff in that group were 
responsible for making edits to the final draft of the proposed rule 
and inserting, following discussion with EPA management and 
representatives of other Agency offices, the recommended changes from 
the Office of Management and Budget (OMB) and other interagency 
workgroup members that were accepted by EPA.

    Question 2g. Did these staff all work under your close guidance and 
supervision?
    Response. Staff of two offices within OAR were involved in the 
drafting the proposed rule, and I worked closely with a subset of that 
staff and provided them with guidance. But at the time we were 
developing the proposed rule, I served as Counsel to the Assistant 
Administrator of the Office of Air and Radiation (OAR). In that 
capacity, I did not supervise any staff.

    Question 2h. How many staff were provided with an entire copy of 
the proposed rule prior to its issuance?
    Response. The final draft of the proposed rule was broadly reviewed 
by staff in EPA's Office of General Counsel (Air and Radiation Law 
Office), Office of Air Quality Planning and Standards (Emission 
Standards Division/Combustion Group, Air Quality Strategies and 
Standards Division/Innovative Strategies and Economic Group, Emission 
Modeling and Monitoring Division/Group), Office of Atmospheric Programs 
(Clean Air Markets Division), Office of Water, Office of Research and 
Development, Office of Policy Analysis and Review, and Office of 
Policy, Economics and Innovation. From among these offices, 
approximately 18-24 staff would have been asked to review the final 
package as it moved through the Office of Air and Radiation signature 
process.

    Question 3a. In your response of April 4, 2006 you also indicate 
that ``other language was inserted by EPA.''
    Who at EPA made the decision to insert this language in the 
proposed rule? Was it you or Mr. Holmstead?
    Response. Staff at OAQPS included the language in a draft of the 
proposed rule. Successive levels of EPA managers, including myself, 
reviewed and concurred with the draft proposal that included the 
language.

    Question 3b. Is it your contention that this language was inserted 
by EPA staff without your or Mr. Holmstead's knowledge or approval, 
whether explicit or tacit?
    Response. I reviewed and concurred with the draft proposal prior to 
its signature by the Administrator. At the time, I was unaware of the 
origin of the language.

    Question 3c. Did you, prior to the issuance of the proposed rule 
ever have any discussions with career staff regarding the Latham and 
Watkins memoranda?
    Response. Yes. The language at issue related to subcategorization 
by coal type. This concept was a generally recognized alternative that 
was widely discussed with stakeholders during the FACA process, within 
EPA, and with other Federal agencies.

    Question 4a. As noted above, in your response of April 4, 2006, you 
indicated that ``the memorandum was in wide circulation,'' that you 
``received a copy of the memorandum'' prior to proposal and that you 
``contributed to virtually all aspects of the rule, including the 
provisions for a trading program.'' You also indicated that EPA was 
briefed regarding the Latham and Watkins memorandum on September 11, 
2003. Records indicate that Mr. Holmstead attended that meeting.
    In light of these facts in what way was it accurate for Mr. 
Holmstead to state that ``Neither Bill [Wehrum] nor I had any idea this 
language came from Latham and Watkins''?
    Response. Thousands of pages of documents containing information 
and analysis were developed by EPA and stakeholders for the proposed 
rule. I read many of these documents, including the Latham and Watkins 
memorandum. Given the very large volume of information involved, I did 
not recognize the language from the Latham and Watkins memorandum in 
the draft of the proposed rule.

    Question 4b. In particular, please address the notion that neither 
you nor Mr. Holmstead had ``any idea'' the language came from Latham 
and Watkins.
    Response. Please see my response to question A above.

    Question 4c. Was the statement in any way misleading, inaccurate or 
incomplete as applied to you? Or is it an accurate statement of the 
facts?
    Response. The answer was not misleading, inaccurate or incomplete 
as applied to me.

    Question 5. In the March 16, 2004 letter that I sent to EPA 
regarding the verbatim inclusion of materials from Latham and Watkins 
in the proposed mercury rule, I asked for the following information 
regarding the ``borrowed language.''
    ``--The Agency and the person that provided it to EPA through the 
interagency process.''
    ``--A detailed description of the route that it followed at EPA, 
including identification of the person and office receiving it to the 
person and office that decided to include it in the proposed rule 
package.''
    Please provide the description requested in the format described 
above.
    Response. The language received through the interagency process was 
provided in an e-mail from Darlene Downing of the Department of Energy.
    The e-mail from Ms. Downing was addressed to me. I forwarded the e-
mail to OAQPS staff, who participated in intra- and interagency 
discussions regarding the language and who ultimately inserted the 
language into the draft rule. Successive levels of EPA managers, 
including myself, reviewed and concurred with the draft proposal that 
included the language.

    Question 6a. Regarding the proposed mercury rule, the EPA Inspector 
General concluded that ``senior EPA management instructed EPA staff to 
develop a [MACT] standard for mercury that would result in national 
emissions of 34 tons annually.'' In your response, dated April 4, 2004, 
you indicated that the agency did conduct ``modeling analyses of 
mercury caps of less than 34 tons per year nationwide.'' According to 
the Inspector General report, the initial IPM run attempting to reach 
the 34 ton target resulted in emissions of 29 tons. A second model run 
resulted in national emissions of 27 tons. These runs were not included 
in the rulemaking docket according to the Inspector General.
    Please provide us with the 29 and 27 ton runs and all related 
information, including e-mails between EPA staff regarding these 
analyses or regarding other levels that were considered as these 
analyses were being developed.
    Response. EPA has considered the 29 and 27 ton runs and related 
information to be protected by the deliberative process privilege. EPA 
has defended its assertion of the privilege with respect to those runs 
in a case brought by the Commonwealth of Massachusetts (Reilly v. EPA) 
in Federal district court in Boston. We are aware that the magistrate 
judge in the case recently ruled against the Agency, but we are 
currently considering whether to appeal his decision and believe it 
would be inappropriate to release the runs in the interim.

    Question 6b. Did you or Mr. Holmstead instruct staff to develop a 
MACT standard for mercury that would result in national emissions of 34 
tons annually. Please answer yes or no before providing further 
elaboration.
    Response. No, I did not decide that any particular analysis should 
be developed. Such decisions were not mine to make. I did, however, 
advise that very careful attention should be given to the capability of 
the power sector to achieve mercury emission reductions within the 3- 
or 4-year compliance period for MACT standards. EPA compiled extensive 
information about utility mercury emissions and control techniques in 
the process of developing the MACT standards and the Administration's 
Clear Skies initiative. That information led us to conclude that while 
mercury reductions could be achieved in the power sector within the 
MACT compliance period, for the most part those reductions would not 
come from mercury-specific controls such as activated carbon injection. 
Consequently, we based the proposed MACT on air pollution controls 
designed to remove SO2 or NOx. In particular, as part of the 
Clear Skies effort, EPA had extensively studied the capacity of the 
power sector to install SO2 and NOx controls during the 
period up to 2010. That work showed that 34 tons per year was the 
lowest level of mercury emissions that we could reasonably expect the 
power sector to achieve through the aggressive application of 
SO2 and NOx controls up to 2010.

    Question 6c. While EPA was developing the proposed MACT standard 
for mercury emissions from powerplants, did EPA staff suggest to EPA 
senior management that analysis should be done for any other possible 
MACT standards other than the standards described in the Inspector 
General's report?
    Response. In developing the proposed rule, there were numerous 
discussions between EPA staff and senior management where alternative 
approaches, including standards in addition to those described in the 
IG's report, were outlined and debated. The content of those 
deliberations are privileged. In developing the proposed approach, the 
ultimate decision about which standards to explore and propose was 
guided primarily by the available time (i.e., remaining time before the 
court deadline) and resources. Additionally, there were also numerous 
discussions in the FACA working group regarding alternative analyses; 
but again, the ability of EPA to explore some of these options was 
limited by time and resources.

    Question 6d. If the answer to the (c) is yes and other analyses 
were done, please provide the standards that were analyzed and the 
results of those analyses.
    Response. Discussions between EPA staff and senior management 
regarding possible alternative approaches are privileged. Due to the 
time and resource constraints mentioned above, we were unable to 
conduct analyses for all of the approaches discussed within EPA.

    Question 6e. If the answer to question (C) is yes and other 
analyses were not done, please explain (i) what options were suggested 
for analysis, and (ii) why you agreed with the Agency's decision not to 
do the suggested analysis if you agreed with that decision.
    Response. Please see my answer to question D above.

    Question 7a. In your April 4, 2006 response you also indicate that, 
with regard to the low risk exemption included in the plywood rule, 
``Please note that OGC did not issue any memorandum relating to this 
rule.''
    Please find attached a draft memorandum from Paul Cort, Air and 
Radiation Law Office, Office of General Counsel, dated 3/04/02. Were 
you aware of this document when you responded on April 4, 2006?
    Response. Yes.

    Question 7b. Is it your contention that this memorandum does not 
``relate'' to the low risk exemption in the plywood rule? Or was your 
answer based solely on the draft nature of the memorandum?
    Response. My answer was based on the facts that the memorandum is a 
staff-level draft, does not purport to represent the views of the 
General Counsel, and does not specifically address the plywood rule.

    Question 7c. Are there any other written analyses, draft or 
otherwise, provided to you by the Office of General Counsel relating to 
the basis for the low risk exemption found in the plywood rule? Please 
provide any such documents.
    Response. The Office of General Counsel (OGC) was involved in the 
preparation of the legal analysis set forth in the preamble of the 
rule. OGC's legal advice was integral to our development of the rule. 
That legal advice is privileged.

    Question 7d. Do any of these documents indicate that the exemption 
approach in the rule does not raise legal concerns related to 
consistency with the Clean Air Act?
    Response. Legal advice provided by OGC personnel to me or any other 
Agency official is privileged communication.

    Question 7e. Are there any documents that indicate that the 
opinions expressed in the draft memorandum are incorrect?
    Response. EPA received a number of public comments that expressed 
views similar to some of the points explored in the draft memorandum. 
EPA also received numerous comments that are at odds with those views. 
The comments can be found in the docket for the rulemaking. Any 
document prepared by Agency attorneys for the purpose of giving legal 
advice is privileged. Any other internal EPA document conveying or 
concerning that advice is also privileged.

    Question 7f. Was this draft memorandum part of the basis for 
discussions relating to the legal risk associated with the low risk 
exemption approach in the plywood MACT?
    Response. The content of internal discussions related to legal 
advice provided by Agency counsel is privileged.

    Question 7g. Did the Office of General Counsel ever advise you in 
any way that including this approach in the rule would involve 
significant legal risk or high legal risk?
    Response. Legal advice provided by OGC personnel to me or any other 
Agency official is privileged communication.

    Question 8a. In your April 4, 2006 response, you also refused to 
provide any documents related to your recusal from matters that you 
worked on while at Latham and Watkins. You indicated that you were not 
able to provide your recusal memorandum and any related documents 
because ``it contains information that may be subject to attorney-
client privilege.'' You stated that you were ``consulting with the law 
firm regarding whether any privilege attaches and to what extent.'' 
When will the law firm render such an opinion?
    If the memorandum does contain attorney-client privileged 
information, how did you avoid breaching or otherwise waiving that 
privilege when you provided your recusal memorandum to government 
ethics officials?
    Response. Please find enclosed a copy of the ethics memorandum 
issued to me on November 7, 2001, by Kenneth J. Wernick, EPA's then 
Alternate Agency Ethics Official. Since the April 4 response, I have 
determined that the memorandum does not contain attorney-client 
privileged information.

    Question 8b. Does your recusal memorandum actually describe or 
relate any attorney-client privileged communications?
    Response. Please find enclosed a copy of the ethics memorandum 
issued to me on November 7, 2001, by Kenneth J. Wernick, EPA's then 
Alternate Agency Ethics Official. Since the April 4 response, I have 
determined that the memorandum does not contain attorney-client 
privileged information.

    Question 8c. Is it your view that the mere fact of representation 
is attorney-client privileged?
    Response. Please find enclosed a copy of the ethics memorandum 
issued to me on November 7, 2001, by Kenneth J. Wernick, EPA's then 
Alternate Agency Ethics Official. Since the April 4 response, I have 
determined that the memorandum does not contain attorney-client 
privileged information.

    Question 8d. Do you or the law firm of Latham and Watkins claim 
that providing the recusal memorandum, or otherwise indicating the 
matters that you worked on, and the clients that you represented, 
constitutes, in and of itself, a violation of attorney-client 
privilege? Please provide any legal authority in support of such a 
position.
    Response. Please find enclosed a copy of the ethics memorandum 
issued to me on November 7, 2001, by Kenneth J. Wernick, EPA's then 
Alternate Agency Ethics Official. Since the April 4 response, I have 
determined that the memorandum does not contain attorney-client 
privileged information.

    Question 8e. Does the Office of General Counsel agree with your 
position that you cannot provide the memorandum due to concerns related 
to attorney-client privilege?
    Response. Please find enclosed a copy of the ethics memorandum 
issued to me on November 7, 2001, by Kenneth J. Wernick, EPA's then 
Alternate Agency Ethics Official. Since the April 4 response, I have 
determined that the memorandum does not contain attorney-client 
privileged information.

    Question 8f. According to the attached Energy and Environment Daily 
article published on February 13, 2004, your predecessor, Jeff 
Holmstead said that ``both he and Wehrum have recused themselves from 
all matters associated with their previous employer.'' Was this 
statement completely accurate?
    Response. As set forth in the ethics memorandum referenced above, I 
was barred for 1 year starting September 29, 2001, from participating 
in the particular matters listed in Attachment A of the memorandum and 
from taking official action on any particular matter in which my former 
clients, listed in Attachment B, were or represented a party to the 
matter. The ethics memorandum also addressed the general rulemakings on 
which I had represented various clients. In the memorandum, Mr. Wernick 
determined that my participation in most of the rulemakings listed in 
Attachment C would not create an appearance of a conflict of interest. 
With respect to the ethylene MACT rule and the semiconductor MACT rule, 
he concluded that it would be prudent for me not to handle these 
matters during my first year at EPA. Subsequent to that time, there was 
no bar to my participating as an EPA official in these rulemakings.

    Question 8g. Did you recuse yourself from all matters associated 
with your previous law firm in your recusal memorandum or at any time 
prior to September 2002? If you claim that answering this question is 
attorney-client privileged, please provide applicable legal authority 
in support of your contention that answering this question violates 
attorney-client privilege.
    Response. In accordance with the ethics memorandum referenced 
above, I refrained for 1 year starting September 29, 2001, from 
participating in the particular matters identified by the memorandum 
and from taking official action with respect to any particular matter 
involving the entities listed in the memorandum. I also did not 
participate in the ethylene and semiconductor MACT rules in my first 
year at EPA.

    Question 8h. Did you recuse yourself from all matters associated 
with your previous employer at any time after February 13, 2004?
    Response. As indicated by the ethics memorandum referenced above, 
the limitations on my participation in the matters identified in the 
memorandum expired on September 29, 2002.

    Question 8i. Have you, at any time after your arrival at the 
agency, worked on any matters associated with your previous law firm? 
Please list these matters.
    Response. Consistent with the determinations set forth in the 
ethics memorandum issued to me, I have worked at EPA on Clean Air Act 
rulemakings to reform the New Source Review program, establish MACT 
standards for industrial boilers and wood products, develop a NESHAP 
for miscellaneous organics, and issue guidance related to BART.

    Question 8j. Have any former EPA Assistant Administrators or EPA 
General Counsels asserted that their recusal memorandum is attorney-
client privileged? Please provide any recusal memoranda prepared by 
former EPA General Counsels since 1994, unless the Office of General 
Counsel indicates that such memorandum are attorney-client privileged.
    Response. I am not aware that any former EPA Assistant 
Administrators or EPA General Counsels have asserted the attorney-
client privilege with respect to their recusal memoranda. I would be 
happy to discuss with you any need you may have for the recusal 
memoranda of these former officials.

    Question 8k. Please provide your recusal memorandum and any related 
documents. If you feel it necessary, please provide a redacted version 
that does not reveal any attorney-client privileged information.
    Response. I have enclosed the ethics memorandum issued to me by 
EPA's then Alternate Agency Ethics Official.

    Question 8l. Please indicate whether, on arrival at EPA, you 
recused yourself from any matters, including New Source Review related 
matters, that you worked on while at Latham and Watkins.
    Response. I acted in accordance with the ethics memorandum, which 
clearly describes the limitations on my work at EPA based on my prior 
representation of clients.

    Question 9. At your hearing on April 5, 2006, I asked you some 
questions relating to a draft proposed air toxics rule that was 
reported on in the New York Times and Washington Post on April 4, 2006. 
In particular, I asked you whether this proposal will ``require 
additional reductions in toxic air pollutants beyond current rules or 
will it allow additional emissions of toxic air pollutants when 
compared to current rules?'' Please answer this specific question.
    Response. We are in the early stages of revisiting and re-
evaluating the Once In, Always In policy. Any changes to the policy 
will go through the formal rulemaking process and we will ask for 
public review and comment.
    The draft proposal was not written to ``require'' additional 
reductions in toxic air pollutants from any source. The draft would 
have allowed sources to achieve additional reductions in toxic air 
pollutants to achieve emission levels of area sources. Sources opting 
to reduce emissions to area source levels, however, would have to take 
effectively enforceable limitations on their potential to emit. The 
draft proposal would have provided the industry an incentive to 
voluntarily reduce toxic emissions below major source thresholds. Such 
emission reductions would clearly benefit the environment.
    In addition, the draft would allow some sources currently emitting 
air toxics below ``area source'' levels to establish permit limitations 
at levels that could, but not necessarily, result in some emission 
increases in the future. I believe there are several factors, though, 
that would tend to minimize those increases in many cases. For example, 
some sources want to be a good corporate citizen and would choose not 
to change current emission levels. Other companies would want to avoid 
the negative publicity associated with increases in toxic air 
pollutants. Additionally, at many sources, emissions reductions are 
needed for other reasons, such as netting, trading or meeting criteria 
pollutant standards, and thus may not be increased for those reasons. 
Last, I believe most sources would want to establish ``potential to 
emit'' emission limits well below the major source threshold so as not 
to jeopardize their area source status.
    We have not yet attempted to determine the net effect of any 
increases and decreases of toxic air emissions that would result from 
such a rule.

    Question 10a. With regard to the draft proposed air toxics rule 
described in the Washington Post and New York Times, you indicated at 
your hearing that ``work to my recollection began almost 2 years ago 
when we first began talking about the possibility.'' According to the 
draft proposal, STAPPA/ALAPCO met with EPA to explore ways to revise 
the ``Once In, Always In'' (``OIAI'') policy to promote pollution 
prevention. The draft proposal goes far beyond that, and would allow 
sources to no longer be subject to MACT standards regardless of whether 
they instituted pollution prevention programs.
    Where did the idea originate to expand the change to the OIAI 
policy beyond sources with pollution prevention programs, and to allow 
participation by sources that increase emissions up to the 10/25 tons 
threshholds? Was it either your idea or Mr. Holmstead's idea?
    Response. This policy has been discussed and debated since its 
inception in 1995, both internally and externally. Work on the rule 
began in earnest in 2004.

    Question 10b. In your opinion as an attorney and legal expert 
regarding the Clean Air Act, is the change contemplated in the proposed 
rule compelled by the statutory language of the Act? How?
    Response. As we proceed through the rulemaking process, we will 
seek the advice of the Office of General Counsel on questions of 
statutory interpretation. The General Counsel is responsible to 
developing and issuing legal opinions. We will seek public comment on 
all aspects of any proposal.

    Question 11. At the April 5, 2006 nominations hearing, I asked you 
for any more recent documents related to the draft air toxics proposal. 
You indicated that you ``would be happy to work with you and to work 
with your staff in identifying relevant documents and talking about 
what we may be able to provide.'' Please provide these documents. If it 
is your contention that a privilege applies, please indicate in 
writing, to myself and Chairman Inhofe, by way of a separate letter, 
which privilege applies and provide a legal analysis of how such a 
privilege applies to Congress. Please provide such a letter by close of 
business on April 15, 2006, so that we may discuss this issue prior to 
finalization of your responses to the committee.
    Response. Please find enclosed the documents responsive to your 
request that are not privileged. My letter to you concerning the 
privileged documents was submitted on April 17, 2006.

    Question 12. The draft air toxics proposal states that EPA believes 
companies will not increase their emissions because of their desire to 
``avoid negative publicity and to maintain their appearance as 
responsible businesses.'' Do you think that relying on a corporate 
desire to ``avoid negative publicity,'' instead of enforceable emission 
limits is an appropriate strategy for protecting our citizens from 
dangerous emissions of toxic air pollutants?
    Response. As stated earlier, this is a preliminary draft and we are 
still examining the issues. I believe the desire to be seen as a good 
corporate citizen is one factor most companies consider in making 
decisions about controlling their emissions. EPA's experience with the 
Toxics Release Inventory (TRI) confirms that demonstrating 
environmental progress has become a selling point for many companies. 
For example, the Boeing Company posts TRI release data on its web site 
and uses the information to track the company's environmental progress. 
The web site notes that overall toxic chemical releases have decreased 
by more than 82 percent since 1991. Concern about potential negative 
publicity is another factor in companies' decisionmaking. Additional 
factors that could lead companies to maintain their current emission 
levels are noted in the response to question 9 above.

    Question 13. At your nominations hearing on April 5, 2006, I also 
asked you whether there was ``a scientific or public health reason'' 
for disregarding the advice of the Clean Air Scientific Advisory 
Committee regarding lowering the annual standard for fine particulate 
matter. In your response, you did not answer this specific question. 
Please do so.
    Response. In formulating his decision regarding the proposed annual 
standard for fine particles, the Administrator carefully considered all 
of the available evidence and the advice of CASAC. Over the years, 
CASAC has consistently provided EPA with sound, well reasoned and 
thoughtful scientific advice. In developing the proposal for an annual 
fine particles standard, the Administrator was ``mindful that 
considering what standard is requisite to protect public health with an 
adequate margin of safety requires policy judgments that neither 
overstate nor understate the strength and limitations of the evidence 
or the appropriate inferences to be drawn from the evidence'' (71 FR 
2651). It was the Administrator's judgment, based on all of the 
currently available evidence and focusing on the key mortality and 
morbidity studies, that proposing a standard set at a level of 15 mg/m3 
would be requisite to protect public health with an adequate margin of 
safety from serious health effects, including premature mortality and 
respiratory morbidity that are likely causally associated with long-
term exposure to PM2.5 (71 FR 2651).
    As also discussed in the preamble to the proposal, in proposing 
this level, the Administrator recognized that the CASAC Panel did not 
endorse retaining the annual standard at the current level of 15 mg/m3. 
The Administrator carefully considered the reasons CASAC provided for 
its recommendation for lowering the annual standard. CASAC noted that 
some cities have relatively high annual PM2.5 
concentrations, without much day-to-day variation, and such cities 
would only rarely exceed a 24-hour standard even when set at levels 
below the current 24-hour standard. As a result, a 24-hour standard 
would have little effect on long-term mean concentrations of 
PM2.5 in such cities, and thus would not likely reduce 
health effects associated with long-term exposure. The Administrator 
agrees conceptually with CASAC that any particular 24-hour standard may 
not result in reductions in the level of long-term exposure in areas 
with those kinds of air quality distributions, and further agrees that 
this supports relying on the annual standard, and not the 24-hour 
standard, to achieve the appropriate level of protection from long-term 
exposures to PM2.5. However, as stated in the preamble, 
``the Administrator does not believe that this advice necessarily 
translates into a reason for setting the annual PM2.5 
standard at a level below the current level of 15 mg/m3b. . . . The 
Administrator believes the principal basis for selecting the 
appropriate level of an annual standard should be the evidence provided 
by the long-term studies, in conjunction with judgments concerning 
whether and over what range of concentrations reported associations are 
likely causal, and this evidence reasonably supports retaining the 
current level of the annual standard'' (71 FR 2651-2).

    Question 14. With regard to trading of mercury, in your view, would 
it have been legally acceptable for EPA, taking into account the 
requirements of the Clean Air Act, to propose and adopt a facility 
specific mercury MACT that did not allow trading? Or was a trading 
regime compelled by your reading of the statute?
    Response. After considering the utility unit emissions that would 
remain following imposition of the requirements of the Act, EPA 
determined that it was neither appropriate nor necessary to regulate 
utility units under section 112 of the Clean Air Act. Once EPA made 
that determination, it would not have been legally appropriate for EPA 
to issue a MACT standard. The Clean Air Mercury Rule was promulgated 
under CAA section 111, which allows, but does not compel, a trading 
regime.

    Question 15. In your testimony on April 5, 2005, you indicated that 
with regard to the mercury proposal, ``we hold that as one of the most 
significant accomplishments of this EPA, our office and this 
Administration as it relates to Clean Air. It is the first ever 
regulation in the world to regulate mercury emissions from coal fired 
powerplants and we are quite proud of the progress that we have made 
and we are quite proud of reductions that will be achieved through that 
regulation. It was a substantial undertaking. The issues were quite 
complex and we feel like we did a good job on that rule.'' Did EPA 
limit mercury emissions from powerplants on its own initiative or was 
EPA obligated to address the mercury issue pursuant to a settlement 
agreement?
    Response. EPA was acting under authority of the Clean Air Act in 
deciding to regulate mercury emissions from utilities. Following 
litigation over the timing of our action, EPA issued the erroneous 
December 2000 determination and subsequent proposed MACT standard for 
powerplants pursuant to a settlement agreement with NRDC. However, 
before the deadline in that agreement for final action, EPA revisited 
and revised its earlier finding and determined that it was not 
``appropriate or necessary'' to regulate mercury emissions from 
electric utility steam generating units under section 112 of the Act. 
Thus, EPA was no longer under an obligation to issue a MACT standard. 
Nonetheless, in the Clean Air Mercury Rule, EPA chose to further reduce 
domestic emissions of mercury from coal-fired powerplants.

    Question 16a. On April 3, 2006, EPA released the results of a 
review of the process for setting National Ambient Air Quality 
Standards (NAAQS) that you co-chaired. The review indicates that you 
support eliminating the staff paper and replacing it with a ``policy 
assessment'' document. In the memo initiating this process, authored by 
Deputy Administrator Peacock, he states that ``the Administrator is 
interested in determining whether those practices reflect the most 
rigorous, up-to-date and unbiased scientific standards and methods.''
    What role did you play in drafting the December 15, 2005 memo 
signed by Deputy Administrator Peacock? Did you review drafts of this 
memo prior to its signature?
    Response. My participation in the drafting of the December 15, 2005 
memo was limited to providing review comments on one draft of the 
document. I gave my comments to the Deputy Administrator prior to the 
memo being issued.

    Question 16b. Did the idea for conducting the review originate with 
you?
    Response. No, the idea did not originate with me.

    Question 16c. Did this idea originate with parties outside the 
Agency?
    Response. As far as I am aware, the idea did not originate outside 
the Agency.

    Question 16d. Did you discuss this idea with parties outside the 
Agency prior to December 15, 2005?
    Response. No, I did not discuss this idea with parties outside the 
Agency prior to issuance of the memo.

    Question 16e. With regard to the question of whether the NAAQS 
reflect ``unbiased scientific standards and methods'', what evidence 
did EPA have prior to the initiation of the review of ``bias'' in 
scientific standards and methods?
    Response. The purpose of this review is to see if the NAAQS review 
process can be improved. As summarized in the workgroup report, over 
the last 25 years, EPA or CASAC have conducted several reviews of the 
process. The recent review focused on the ``timeliness of the NAAQS 
review process; consideration of the most recent available science; 
distinctions between science and policy judgments; and addressing 
uncertainties in scientific information.'' In deciding to conduct this 
review, we did not consider bias as one of the key issues in past NAAQS 
reviews, but are aware that some outside commenters have raised this as 
a concern.

    Question 16f. Did EPA find any credible evidence during the review 
that the process suffers from a lack of ``unbiased scientific standards 
and methods?'' If so, please detail this evidence.
    Response. As explained in the answer to question E above, we did 
not consider bias as a key issue. Therefore, we did not investigate 
possible bias during our review.

    Question 17a. In the memo from you and Assistant Administrator 
George Gray dated April 3, 2006, you recommend that the ``Staff Paper'' 
should be replaced with more narrowly focused ``policy assessment 
document'' that ``reflect the Agency's views, consistent with EPA 
practice in other rulemakings. This recommendation is contained only in 
the memorandum signed by you and Dr. Gray, and is not included in the 
Review prepared by the EPA's NAAQS Process Review Workgroup. As you 
know, the Staff Paper, prepared by EPA scientists, has served as the 
basis for all previous NAAQS decisions and a key strength of that 
document has been the lack of political intrusion into the science 
based process that produces the Staff Paper. This is appropriate given 
that the Clean Air Act requires the National Ambient Air Quality 
Standards to be based on the ``latest scientific knowledge'' and to be 
based on air quality ``criteria'' reviewed by the Clean Air Scientific 
Advisory Committee. It requires EPA to establish an independent 
scientific review committee that is to ``recommend to the Administrator 
any new national ambient air quality standards and revisions of 
existing criteria and standards.'' This process has worked well since 
its inception and NAAQS have repeatedly been upheld by the Courts, 
including the Supreme Court. You now recommend that the staff paper be 
replaced by an previously unheard of ``policy assessment'' document 
that will ``reflect the agency's views.'' In the past, the Staff Paper 
reflected the best scientific judgment of the EPA and the Administrator 
used that document to inform her/his views.
    How will replacing the Staff Paper with a ``policy assessment'' 
document enhance adherence ``to the highest scientific standards'' as 
described in the Peacock memorandum.
    Response. The workgroup recommendation for replacing the staff 
paper as currently constituted with a policy assessment document was 
contingent on implementing a series of changes to earlier steps in the 
process, especially an improved and focused integrated assessment of 
the scientific information and a separate risk assessment document. The 
workgroup recommended that the science assessment document be a more 
concise evaluation, integration, and synthesis of the policy relevant 
science, and include key science judgments that will inform the later 
policy assessment document. The recommended reformulation of the 
science assessment and risk assessment documents eliminates the need 
for the staff paper to develop a duplicative and time consuming 
assessment of the policy relevant science (as has been the case 
historically) or to incorporate a chapter summarizing the risk 
assessment.
    This more narrowly focused policy assessment document would be 
based on the science and risk/exposure assessments and would include 
policy-relevant air quality analyses. This document could focus on 
identifying approaches for reaching policy judgments; considering the 
adequacy of the current standards and whether alternative standards 
should be assessed for consideration; and identifying a range of 
options for alternative standards (in terms of indicators, averaging 
times, forms, and ranges of levels) that might be considered by the 
Administrator in making policy choices. The workgroup believed this 
approach would permit a more timely and focused review of both the 
science and policy issues that arise in the NAAQS review process, 
helping to ensure consideration of the most recent available science.
    The separate question of management involvement is still being 
debated within the Agency. I would be happy to report back once these 
deliberations are complete.

    Question 17b. Will the ``agency's views'' that are to be 
``reflected'' in the ``policy assessment'' document be solely science 
based? Or will they also reflect political considerations? Will they 
reflect considerations of cost or implementation of other programs?
    Response. While George Gray and I recommended that the policy 
assessment document incorporate an Agency perspective, we are still in 
the process of considering alternative approaches and have made no 
final decisions on the issue. Nevertheless, if such an approach were to 
be adopted, the Agency views would be founded on the available science. 
The policy assessment would reflect Agency policy views but would not 
reflect cost or other considerations not permitted in making NAAQS 
decisions.

    Question 17c. What document prepared by agency scientists and 
looking solely at scientific issues will replace the Staff Paper? Will 
you commit to allowing the creation of such a document and to relying 
on its recommendations as the basis for NAAQS decisions?
    Response. The review of the science in the current criteria 
document as well as the integrated review of relevant scientific 
information contained in the staff paper would both be addressed by the 
restructured science assessment document. The workgroup recommended 
that this be a more concise evaluation, integration, and synthesis of 
the most policy-relevant science (with comprehensive annexes with 
generally descriptive information), and that it include key science 
judgments that are integral to the risk/exposure assessments. This 
science-based document will continue to serve as the foundation for the 
development and assessment of policy options and will ultimately inform 
any NAAQS decision.

    Question 17d. Please summarize for the record the specific 
recommendations of the workgroup that lead you to decide to replace the 
Staff Paper with a ``policy assessment'' document. Did the career staff 
endorse the approach of replacing the Staff Paper?
    Response. The specific recommendations of the workgroup on this 
matter are summarized in the responses to A) above and are presented in 
full in section 3.2.4 of the workgroup report. The career staff on the 
workgroup, several of whom have worked on the NAAQS for many years, 
fully endorsed the recommendation for transforming the staff paper into 
a policy assessment document. The Workgroup took no position on whether 
that document would reflect staff or Agency views.

    Question 17e. With whom did the idea to replace the staff paper 
with a policy assessment document originate? Career staff? Political 
staff? Or outside the EPA?
    Response. The concept of transforming both the criteria and staff 
documents into more focused science assessment, risk assessment, and 
policy assessment documents originated with the Agency staff most 
heavily involved in the NAAQS review process over the years. It 
reflected the staff's understanding of the basic functional elements of 
the NAAQS review process and on the nature of the linkages between the 
documents currently prepared as part of the a NAAQS review. The 
workgroup was unanimous in recommending this change in approach.

    Question 17f. Why do you believe it is better to have CASAC comment 
on a document that reflects the Agency's views rather than the current 
process where CASAC comments on the Staff Paper?
    Response. As noted above, the Agency has not reached any decision 
with respect to whether or how to incorporate Agency views into the 
policy assessment document. We place great weight on our interactions 
with CASAC as well as their recommendations regarding the NAAQS, and 
any changes we ultimately adopt will preserve the nature of the CASAC 
role and contribution in the process.

    Question 17g. Please provide any documents that you have reviewed 
that recommend changing the process so that CASAC comments on the 
Agency's views rather than the current process where CASAC comments on 
the Staff Paper.
    Response. Other than the final version of the Peacock memorandum, 
any internal documents that I reviewed that make the recommendation 
described above are privileged. Comments from external stakeholders 
that make the recommendation are enclosed.

    Question 18. A recent court decision found EPA's Equipment 
Replacement Rule to be invalid. In reaching its decision, the court was 
highly critical of EPA's legal rationale for this rule, saying it only 
made sense in a ``humpty-dumpty'' world. Given that this rule was 
obviously legally risky, what were the public health benefits sought by 
that rule and did EPA have a quantitative or empirical analysis showing 
that the rule would lead to actual emissions reductions in absolute 
terms?
    Response. While the EPA acknowledges that the Equipment Replacement 
Provision (ERP) could have allowed emissions to increase at a 
particular facility, EPA evaluated the emissions impact of the rule on 
a national level. The national evaluation is more appropriate here, 
since the ERP would have national application. Based on review and 
analysis of emissions models and case studies, both for electric 
utilities and for six other major industrial sectors, EPA determined 
that the ERP, as a whole, would have resulted in equal or better 
environmental protection than currently provided by the existing 
regulations, and in a more streamlined and effective manner. 
Specifically, EPA concluded that maintaining safe, reliable and 
efficient operations would have the corresponding environmental benefit 
of reducing the amount of pollution generated per unit of product 
produced.

    Question 19. On October 13, 2005 EPA proposed changes to the New 
Source Review program for electric generating units. Did EPA, prior to 
proposal, conduct a quantitative or empirical analysis showing that 
this proposal would lead to decreases in emissions in absolute terms 
either nationally, regionally, statewide or on a facility specific 
basis? If so please provide this analysis.
    Response. We did not include specific quantitative or empirical 
analysis at proposal. However, as described in the proposal, we are now 
developing a supplemental proposal containing quantitative and 
empirical analyses that will address this issue. We expect to publish 
this supplemental proposal in the near future.

    Question 20. In reaching the decision to move forward with the 
Equipment Replacement Rule, were you provided with legal advice 
indicating that there was a high legal risk associated with this rule? 
If so, what motivated your decision to continue pursuing this approach 
to the law? Would it have been detrimental to public health if you had 
simply abandoned this regulatory exemption and used the resources of 
the agency on other projects? How?
    Response. Our internal discussions of the legal merits of a rule or 
any other official agency action are protected by attorney-client 
privilege.

    Question 21a. As reported in the Los Angeles Times, you were 
instrumental in developing a proposal to exempt so called ``low risk'' 
sources from certain requirements relating to toxic air pollution under 
section 112 of the Clean Air Act. The legality of that approach was 
questioned by the EPA Office of General Counsel. Thousand of tons of 
air toxics are emitted each year and yet EPA has failed to fulfill many 
of its statutory duties under section 112.
    What actions have you championed to increase the effectiveness of 
the air toxics program in decreasing emissions of cancer causing air 
pollutants? Please provide documentation of those efforts.
    Response. EPA has invested substantial money and resources to 
complete our obligation to establish technology-based standards for 
major source categories, and to implement residual risk and area source 
rules and other related rulemakings. These actions increase the 
effectiveness of the air toxics program by reducing emissions of 
hazardous air pollutants. In addition, President Bush's 2007 budget 
includes a $2 million request to expand our efforts in this area.

    Question 21b. Why hasn't the EPA conducted the periodic review and 
revision, where appropriate, of the list of toxic air pollutants which 
present or may present a threat of adverse human health effects, as 
required under section 112(b)(2) of the Clean Air Act?
    Response. Our review and revision of the list of toxic air 
pollutants is guided by petitions requesting us to add or delete a 
substance from the list. To date we have received eight petitions to 
remove an individual HAP or component(s) of a HAP grouping. These are: 
five of the glycol ethers group (denied); caprolactam (granted); long 
chain glycol ethers (granted); ethylene glycol monobutyl ether 
(granted), methyl ethyl ketone (granted), and methanol (denied). 
Petitions to delist methyl isobutyl ketone and methyl diphenyl 
diisocyanate are pending. We have received one petition to add the 
mixture diesel exhaust (pending), and a request to add the compound 
hydrogen sulfide (pending).

    Question 21c. In your capacity as legal advisor to the previous 
Assistant Administrator for Air and Radiation, did you ever bring 
attention to this responsibility and suggest a course of action to 
comply with the requirement to review as appropriate?
    Response. Our legal obligation is to periodically review the list 
and revise where appropriate. As noted above, our review and revision 
of the list has been guided by petitions to list or de-list a 
substance.

    Question 21d. Do you have plans to move forward aggressively with 
the residual risk program as required under Clean Air Act section 
112(f)? What are those plans and what is your plan for fulfilling the 
statutory requirements that EPA promulgate such standards within 8 
years of the time a MACT standard is set for each source category?
    Response. Yes, we are planning to invest substantial Agency 
resources in implementing the residual risk requirements. To date we 
have finalized five residual risk rules and proposed one more. Our plan 
is to address each of the source categories in the order the 
technology-based standards were finalized.

    Question 22a. In December 2000, the EPA added utilities as a source 
category for mercury and other air toxics under section 112 of the 
Clean Air Act. Pursuant to section 112(c)(5), EPA is required to 
promulgate standards covering each and every emitting unit within that 
source category within 2 years after addition of a source category and 
compliance is required within approximately 3 years at the most.
    The Administration did not comply with the Act's specific legal 
requirements in this case. Why not?
    Response. The schedule for this rulemaking was established in the 
prior Administration through litigation with the Natural Resources 
Defense Council. EPA was required by settlement agreement to propose 
regulations for this source category by December 15, 2003; this date 
was met by the Agency. The same settlement agreement called for final 
rules to be in place by December 15, 2004. By consent of the litigants, 
this date was extended to March 15, 2005. Once EPA determined that it 
was not appropriate or necessary to regulate utility units under 
section 112, however, EPA no longer had a legal obligation to issue a 
MACT standard applicable to those units.
    Question 22b. Did you ever provide advice to Mr. Holmstead 
regarding means by which the Agency could avoid complying with the 
requirements of section 112(c)(5)?
    Response. No.

    Question 23. Assume that each and every coal-fired electric 
generating unit had been required by EPA to achieve at least a 34 
percent reduction in mercury emissions, which EPA testified in 2002 and 
2003 was the approximate co-benefit level obtained by cost-effective, 
feasible SOx and NOx reductions, according to the compliance 
requirements schedule of section 112(c)(5)--meaning full compliance not 
later than 2005. Since the Clean Air Mercury Rule does not require any 
utility to make reductions in mercury for many years, please provide 
the exact time in the future at which each and every coal-fired 
powerplant in the Nation is likely to achieve a 34 percent reduction in 
mercury emissions.
    Response. It is incorrect to state that the Clean Air Mercury Rule 
(CAMR) does not require any utility to make reductions in mercury for 
many years. In fact, the rule puts a hard cap of 38 tons on emissions 
in 2010, requiring about 10 tons of reductions from the current level 
of mercury emissions from powerplants. Because of the incentives 
provided by the ability of sources to bank SO2 allowances 
under the Clean Air Interstate Rule, EPA estimates that mercury 
emissions will be reduced to about 31 tons by 2010, or approximately a 
35 percent reduction from current levels. As is the nature of a cap-
and-trade program, not every plant will be reducing emissions by this 
percentage; however, EPA predicts that many of the largest and most 
polluting coal-fired powerplants in the United States will be reducing 
emissions by far more than 35 percent during the first phase of CAMR. 
Further, CAMR will permanently cap mercury emissions at 15 tons at full 
implementation, which is about a 70 percent reduction from current 
levels. Many plants are expected to achieve far greater than a 70 
percent reduction. EPA has not done an analysis of the policy scenario 
referenced in the question, and thus we do not know at which point a 34 
percent reduction from every plant would be achieved in that scenario. 
However, under CAMR, emissions reductions will be greater and more 
cost-effective than the scenario described in the question.

    Question 24. Have you, at any point, in your service at EPA engaged 
in communications with the White House or the OMB that had the effect 
of avoiding the information collection, public transparency or 
docketing requirements of section 307(d) of the Clean Air Act?
    Response. Section 307(d)(4)(B)(ii) of the Clean Air Act requires 
the docketing of drafts of proposed and final rules submitted by the 
Administrator to OMB for any interagency review process, all documents 
accompanying such drafts, all written comments thereon by other 
agencies, and all written responses by the Administrator to such 
comments. I believe that we have complied with the letter and spirit of 
section 307(d)(4)(B)(ii).

    Question 25a. During your nominations hearing on April 5, 2005, you 
were asked about study of mercury deposition in Steubenville, OH, that 
shows that about 70 percent of mercury deposition is from local 
sources, especially local powerplants. You testified that ``it squares 
up pretty closely'' with the analysis EPA did for the Clean Air Mercury 
Rule (CAMR) and that you were ``frankly gratified by that.'' Your 
testimony suggests that even before CAMR was finalized, you were aware 
that, in some areas, powerplants are a significant source of mercury 
deposition. This is consistent with a March 1, 2005 e-mail from Jason 
Burnett to Elizabeth Stolpe which states that ``Most of the powerplant 
deposition is in the Ohio river valley. In some places of Pennsylvania, 
for example, powerplant deposition represents more than half of the 
current deposition.''
    A review of the primary documents released to the public at the 
time EPA issued CAMR provides a different impression. In the main 
public documents, EPA does not appear to mention that powerplant 
mercury emissions may be a significant source of mercury deposition in 
some areas. For example, EPA's Fact Sheet on the Clean Air Mercury 
Rule, in a section labeled ``Mercury Emissions--A Global Problem'' 
states that EPA's analyses ``conclude that regional transport of 
mercury emission from coal-fired powerplants in the U.S. is responsible 
for very little of the mercury in U.S. waters.'' In the ``Charts and 
Tables'' section on the EPA mercury rule web site, EPA included one 
chart, ``Mercury Deposition in the U.S.'' that, when updated, showed 
that powerplants contributed 11.1 tons out of the total national 
mercury deposition in the United States of 144 tons. Also in the 
``Charts and Tables'' section, the ``Mercury Emissions Are a Global 
Problem'' chart shows that U.S. powerplant emissions are 1 percent of 
the global total.
    Given that EPA's modeling done before it finalized CAMR showed 
significant deposition in Steubenville, OH, and other areas from 
domestic powerplants, why didn't EPA point that out in CAMR documents 
geared to the press and general public?
    Response. EPA believes it is important to communicate that we 
cannot expect a quick fix to the global mercury problem because U.S. 
emissions represent just a few percent of global man-made mercury 
emissions. Most of the mercury deposited in the United States comes 
from sources outside the United States, and most mercury exposure in 
the United States is the result of consumption of fish and shellfish 
from the ocean environment. Moreover, nearly 80 percent of the ocean-
dwelling fish and shellfish consumed in the United States are imported. 
In addition, we have consistently stated, including in congressional 
testimony, that there are regional differences in mercury deposition 
estimates for the United States. For example, U.S. sources represent a 
greater fraction of the total deposition in parts of the Northeast 
because of the direction of the prevailing winds. See www.epa.gov/
mercury/control--emissions/global.htm, www.epa.gov/air/clearskies/pdfs/
testimony052605.pdf, and www.epa.gov/air/clearskies/pdfs/
presenttion052605.pdf. This same information is presented in even more 
detail in the technical support documents supporting the Clean Air 
Mercury Rule. See, for example, www.epa.gov/ttn/atw/utility/aqm--oar-
2002-0056-6130.pdf.

    Question 25b. Did EPA have any maps that showed local deposition 
levels from powerplants? If so, why weren't these maps placed in the 
``Charts and Tables'' or ``Basic Information'' section of the Web site?
    Response. The maps that you request were made available on the web 
link, ``Technical Information,'' directly below the ``Charts and 
Tables'' link upon promulgation of the final rule. There is always a 
choice to be made about what level of detail to provide in summary 
tables and what level of information to provide in more detailed 
technical documents. I was not involved in making those decisions for 
the Clean Air Mercury Rule.

    Question 25c. Do you believe it is misleading to have provided 
information on global and national emissions and national deposition 
without providing information in the same places about areas where the 
deposition from domestic powerplants is a significantly higher 
percentage than the national average?
    Response. As described above, all of the requested information has 
been made available to the public through our web site and through 
additional outreach since the promulgation of the final rule. For most 
Americans, mercury exposure is largely the result of global emissions, 
and this is important information for the public to receive.

    Question 25d. Do you plan on updating the ``Basic Information'' or 
``Charts and Tables'' section of the CAMR web site to provide 
information geared to the press and general public regarding areas of 
the country, like Steubenville, OH, that have significant deposition 
from domestic powerplants?
    Response. EPA is always looking for ways of improving our 
communication of complex issues to the public. We have taken the 
opportunity to update the ``Charts and Tables'' section to reflect the 
deposition maps described above, so that information on regional 
variations in deposition patterns are available in more places on EPA's 
web page.

    Question 26a. Section 112(d)(6) requires EPA to review the 
technology-based standards ``every'' 8 years--in other words even 
beyond the one-time residual risk review. This is an assessment of the 
technology-based decisions made with the original promulgation of the 
technology-standards. There is no mention of a risk-based exemption 
from this review. Yet in the final residual risk rule for coke oven 
batteries, the preamble states that no further review or revision will 
be required for source categories that are below specified risk levels.
    Did you play in role in development of that position and the legal 
interpretation behind it?
    Response. Yes.

    Question 26b. What is the basis in the language of the Act for this 
interpretation?
    Response. Your statement that the final residual risk rule for coke 
ovens provides that ``no further review or revision will be required 
for source categories that are below specified risk levels'' is an 
overstatement of the position laid out in the preamble to the coke 
ovens rule. We stated that the findings that underlie the section 
112(f) determination should be a key factor in the section 112(d)(6) 
determination, and added that if the section 112(f) analysis was not 
based on the availability or cost of controls, then advances in control 
technologies ``should not justify revising the MACT standard pursuant 
to section 112(d)(6);'' we did not take the position that no further 
review would be required. Moreover, in several final residual risk 
rules signed on March 31, 2006, and due to be published in the near 
future, we clearly state our position that section 112(d)(6) requires 
that review of the standards every 8 years.

    Question 27. The goal of the residual risk program is to ensure 
that major sources of hazardous air pollutants (HAPs) are held to 
emissions levels that are demonstrated to protect public health with an 
ample margin of safety. The EPA, however, has decided to break major 
sources into component parts for purposes of setting standards. How 
will you ensure that at the end of the day, when the risks posed by 
each component part is added together, that all major sources will meet 
the ample margin of safety requirement?
    Response. Section 112(f) of the Clean Air Act instructs EPA to look 
at the residual risk that may remain for certain source categories for 
which EPA has issued a section 112(d) standard. EPA's residual risk 
rules have followed this instruction.

    Question 28. Section 112(f) of the Clean Air Act directs EPA to 
assess the risk to the maximum individual risk, which means EPA will 
find that one source in the category that poses the greatest risk, and 
then use this risk determination to set standards for the ``category.'' 
In other words, the directive of 112(f) is to use the worst-case source 
to drive the standards for the category. This was obviously the 
protective approach Congress believed appropriate for addressing the 
national air toxics problem. It was a reasonable approach given that 
residual risk is not a recurring requirement. By looking at the worst 
example within a category, EPA can provide reasonable assurances that 
everyone will be protected even as things change over time. Yet EPA 
seems determined with concepts like the ``Total Facility Low Risk 
Demonstration'' and the ``Generic Residual Risk Rule'' to undermine 
this protective approach by letting sources individually assess their 
own risks and determine whether more stringent standards are necessary 
for them. How is this consistent with the statutory directive to use 
the risk to the most exposed individual to set standards for the entire 
category?
    Response. The ``Total Facility Low Risk Demonstration'' and 
``Generic Residual Risk Rule'' concepts are being discussed within the 
Agency. At this time, it is premature for EPA to comment on what those 
concepts may entail, or the specifics of how they comply with section 
112(f).

    Question 29. Among the emissions often allowed by current 
technology standards are period of excess emissions during startup, 
shutdown and malfunction. Do you agree that these allowed emissions 
need to be evaluated to assess potential acute risk posed during these 
events?
    Response. Sources are required to minimize emissions at all times, 
including periods of startup, shutdown, and malfunction. To the extent 
that these emissions can be appropriately quantified and anticipated, 
we plan to include them in any assessment of acute risk.
                                 ______
                                 
        Responses by William L. Wehrum to Additional Questions 
                         from Senator Voinovich

    Question 1a. EPA has designated 495 counties across the nation--38 
in Ohio--as in nonattainment for the particulate matter and ozone air 
quality standards.
    How is EPA working with States to provide technical and legal 
guidance as they develop implementation plans?
    Response. EPA regional office and headquarters offices are working 
with States and regional planning organizations on a number of 
technical and legal issues related to the development of State 
implementation plans. These issues include guidance and technical 
assistance on CAIR implementation, emission inventory development and 
review, air quality data analysis, evaluation of available control 
measures, and air quality modeling and assessment. EPA also provided 
STAPPA/ALAPCO with grant funds to develop its March 2006 guidance 
document, ``Controlling Fine Particulate Matter Under the Clean Air 
Act: A Menu of Options.'' In the past, EPA has also supported STAPPA/
ALAPCO in efforts to develop similar documents for State and local 
agencies on controlling ozone precursors. More generally, EPA has 
issued numerous guidance documents to assist States in developing their 
air quality plans, and is sharing technical and analytical tools to 
help States (see response to part b. of this question).

    Question 1b. What is EPA doing to make sure that States have 
maximum flexibility and numerous tools at their disposal to address 
their unique air quality situations?
    Response. First, EPA has developed many rules (such as CAIR, the 
NOx SIP call, and rules for diesel and gasoline on-road and non-road 
vehicles and engines) to address key sources of air pollution at the 
regional and national levels, reducing, in many cases, the burden on 
local sources. States will be able to count on reductions from Federal 
programs as they develop their own plans for attainment. Second, to the 
extent possible, EPA has developed or is developing implementation 
policies for ``new'' 8-hour ozone areas and fine particulate matter 
areas under the more flexible provisions of subpart 1 of section 172 of 
the Clean Air Act. Third, EPA has issued numerous technical guidance 
documents to assist States in developing their air quality plans. For 
example, to make it easier for States to use non-traditional measures 
in air quality plans, we have issued recent guidance documents on 
topics such as how to obtain emission reduction credit for emerging and 
voluntary measures, energy efficiency and renewable energy, truck and 
locomotive idling reductions, and ``bundled'' groups of measures. 
Fourth, we are sharing technical and analytical tools to help States 
characterize air quality problems and craft solutions. Examples of 
guidance documents and tools are listed in an attachment to my November 
10 testimony on implementation of the ozone and fine particle standards 
before the Senate EPW Subcommittee on Clean Air, Climate and Nuclear 
Safety.

    Question 1c. Ohio Governor Taft sent a letter in February 2006 to 
the EPA Administrator on the State's efforts to replace a vehicle 
emissions testing program in the Cincinnati and Dayton areas with 
industrial pollution control programs and clean fuels (RVP 7.8). The 
Governor's letter describes several situations where Ohio EPA was led 
to believe that they were proceeding properly. However, it is now 
unclear whether U.S. EPA will approve of Ohio's plan. How will the 
Agency make sure that this miscommunication does not occur in the 
future as more States look to U.S. EPA for guidance?
    Response. EPA has been working with the State of Ohio in their 
efforts to replace the vehicle I/M programs in Dayton and Cincinnati. 
The States are given primary responsibility to design SIPs so that they 
reflect local needs, and EPA gives significant deference to those air 
quality planning decisions. In working through this particular process, 
the EPA has to apply certain Clean Air Act provisions that specifically 
address adoption of State fuel measures like the low RVP program 
submitted by Ohio. We are committed to working with the State in a 
timely manner to address the question that these unique provisions 
raise.

    Question 2a. What is the role of the Clean Air Scientific Advisory 
Committee (CASAC)? What is the purpose and nature of CASAC's 
recommendations to the EPA Administrator regarding a National Ambient 
Air Quality Standard (NAAQS)?
    Response. Pursuant to the Clean Air Act, the CASAC is an advisory 
body that offers advice and recommendations to the Administrator in the 
process of reviewing the NAAQS. CASAC generally provides the 
Administrator both advice on how to interpret the science underlying 
the NAAQS and recommendations on the interface between that science and 
the policy decisions involved in setting or revising a NAAQS. The 
Administrator is charged under the CAA with making the final decision 
on whether and, if so, how to adjust the standard.
    As you note in your letter, the authority of the CASAC derives from 
section 109(d) of the Clean Air Act (CAA), which requires the 
Administrator to appoint ``an independent scientific review committee 
composed of seven members including at least one member of the National 
Academy of Sciences, one physician, and one person representing State 
air pollution control agencies.'' This committee is charged with 
reviewing both the air quality criteria published under section 108 of 
the CAA, and the national primary and secondary ambient air quality 
standards promulgated under section 109 of the CAA, and recommending to 
the Administrator any new standards and revisions of existing criteria 
and standards as may be appropriate under sections 108 and 109. As 
described in CASAC's charter, and consistent with section 109 of the 
CAA, the committee's duties are advisory in nature, and include several 
activities beyond review of the criteria and standards. Specifically, 
the charter states that CASAC will:
    a. Review the criteria published under section 108 of the CAA and 
the national primary and secondary ambient air quality standards and 
recommend to the Administrator any new national ambient air quality 
standards and revisions of existing criteria and standards as may be 
appropriate;
    b. Advise the Administrator of areas in which additional knowledge 
is required to appraise the adequacy and basis of existing, new, or 
revised national ambient air quality standards;
    c. Describe the research efforts necessary to provide the required 
information;
    d. Advise the Administrator on the relative contribution to air 
pollution concentrations of natural as well as anthropogenic activity; 
and
    e. Advise the Administrator of any adverse public health, welfare, 
social, economic, or energy effects which may result from various 
strategies for attainment and maintenance of such national ambient air 
quality standards.

    Question 2b. How does the EPA Administrator take into consideration 
the recommendations of CASAC and is the Administrator required to 
follow them?
    Response. Because of CASAC's statutory advisory role and the 
expertise that it brings to the NAAQS reviews, the Administrator 
carefully considers the committee's advice in making decisions about 
the NAAQS. CASAC's advice is formed via a deliberative public process 
in which the accumulated scientific evidence is scrutinized by the 
scientific experts on the CASAC panel. Stakeholders also present their 
comments during a public comment period. Recent NAAQS reviews have 
involved the publication of a comprehensive ``criteria document,'' 
prepared by EPA's Office of Research and Development to characterize, 
assess, and integrate the scientific evidence about the health effects 
of the pollutant under review, and a ``staff paper,'' prepared by EPA's 
Office of Air Quality Planning and Standards to provide additional 
policy-relevant information (e.g., quantitative estimates of exposure 
and risks to public health) and advice to the Administrator. CASAC 
reviews drafts of each of these documents and holds public meetings 
during which the committee hears comments on the documents from other 
scientists and stakeholders.
    The Clean Air Act grants specific authority to the Administrator to 
make revisions periodically to the NAAQS. As 109(b) clearly states: 
``the Administrator shall complete a thorough review of the criteria . 
. . and the NAAQS . . . and shall make such revisions . . . as may be 
appropriate in accordance with section 108 . . . and [109(b)]'' 
(emphasis added). CAA section 109(b) provides for the establishment of 
``ambient air quality standards the attainment and maintenance of which 
in the judgment of the Administrator . . . are requisite to protect the 
public health'' (emphasis added). Again, this phrasing clearly and 
unequivocally establishes that the ultimate decisions about whether to 
establish or revise a NAAQS, including decisions about the appropriate 
form and level of such standard, must be made by the Administrator. 
Thus, although the Administrator carefully considers the advice of 
CASAC, according to law, the final decision clearly rests in the 
Administrator's hands.

    Question 2c. How does the EPA Administrator take into consideration 
technical, legal, and other pertinent information from EPA staff and 
credible experts in making policy judgments?
    Response. In addition to the advice received from CASAC, the 
Administrator may receive advice about how to interpret the scientific 
evidence from a variety of stakeholders besides CASAC. This advice may 
come in the form of written and oral public comments, meetings with the 
Administrator and senior EPA staff, and, in the time period immediately 
preceding proposal and final promulgation of a NAAQS decision, comments 
on the draft rule from other Federal agencies via the interagency 
review process. In addition, the Administrator generally requests 
comment on a range of alternatives to his proposed decision on the 
NAAQS reflecting alternative interpretations of the science or 
alternative policy conclusions. Generally, all parties wishing to 
provide advice are asked to provide their rationale for their 
interpretations of the science and policy recommendations and relevant 
supporting documentation. Thus throughout the NAAQS process, the 
Administrator can draw from a variety of sources with alternative 
interpretations of the scientific evidence and alternative policy 
conclusions.

    Question 2d. What considerations and circumstances might cause the 
EPA Administrator to reach a policy conclusion that differs from 
CASAC's recommendations?
    Response. The considerations and circumstances under which the 
Administrator might reach a policy decision that differs from CASAC's 
recommendations will vary based on the nature of the scientific 
evidence and the nuances of the policy decision at hand. Each NAAQS 
decision rests on myriad pieces of evidence, and only a case-by-case 
examination of the specific pieces upon which the Administrator chose 
to place the most emphasis in any given decision can clarify why that 
decision might depart from CASAC's advice. For example, there may be 
instances in which the Administrator reaches public health policy 
judgments about what standards are requisite to protect public health 
with an adequate margin of safety that may differ from the policy 
recommendations made by CASAC. In those instances where his decision on 
the NAAQS deviates from the committee's advice, he takes special care 
to address the rationale for his decision and to identify the points of 
departure from CASAC's recommendations. As required by CAA section 
307(d)(3), the notice of proposed rulemaking for any NAAQS decision 
must ``summarize and provide reference to any pertinent findings, 
recommendations, and comments by the Scientific Review Committee 
established under section 109(d). . .and, if the proposal differs in 
any important respect from any of these recommendations, an explanation 
of the reasons for such differences.''

    Question 3a(i).  EPA has proposed to revise the particulate matter 
NAAQS. EPA's Interim Regulatory Impact Analysis (RIA) for the proposed 
revisions includes a projection of the counties that would contain 
monitors recording levels in excess of the proposed revision. When EPA 
designated nonattainment areas for the current particulate matter 
standard, the Agency included all counties in the metropolitan 
statistical area that contained a monitor in violation of the standard.
    Assuming that this method would again be used to designate areas, 
please identify each county that would be listed as in nonattainment 
according to the RIA estimates and provide a map of the United States 
with these counties highlighted.
    Response. The Interim RIA issued by EPA in January 2006 focused on 
projections of which counties would contain violating monitors under 
revised PM2.5 NAAQS. At this time, EPA cannot predict which 
counties would be included in any designated nonattainment area under 
the proposed standard combination of 15 mg/m3 annual and 35 
mg/m3 daily. The designation process is complex and requires 
the Administrator to weigh multiple factors besides proximity to a 
violating monitor. In the PM2.5 designations completed in 
April 2005, EPA utilized the MSA as a presumptive starting point in 
determining the boundaries of PM2.5 nonattainment areas. 
However, we allowed these presumptive boundaries can be modified based 
on a number of factors, including conformity with boundaries of 
designated ozone nonattainment areas, identification of specific source 
related violations limited to specific geographic areas, emissions in 
areas outside the MSA, air quality in areas outside the MSA, population 
density and degree of urbanization outside the MSA, traffic and 
commuting patterns, expected growth, meteorology, geography/topography, 
jurisdictional boundaries, and level of control of emission sources.
    Thus not all counties within the MSA were necessarily included in 
the designated nonattainment area in the designations for the current 
PM2.5 NAAQS, and in some instances counties or partial 
counties outside an MSA were included in the nonattainment area. 
However, for the purposes of your question, we followed a strict 
presumptive definition based on using MSA boundaries for nonattainment 
area boundaries. Thus the enclosed list could change significantly 
based on specific factors evaluated at the time of designation.

    Question 3a(ii). Please provide this list and map for the initial 
designations, 2010, and 2015.
    Response. We have provided the list requested and maps of the 
counties and maps requested. The list and maps are based on EPA's 
interim RIA, which analyzed projected PM2.5 attainment 
scenarios. The emissions projections and air quality modeling are being 
revised for the final PM NAAQS RIA and will result in modifications to 
the list and maps provided here.
    As noted in the answer above, EPA cannot project which counties 
will be included in nonattainment areas under any future standard.

    Question 3a(iii). Include the counties that will not have met the 
current particulate matter and ozone standards at each interval.
    Response. Please see enclosed maps.

    Question 3b. Please describe the requirements for any areas that 
would be designated as in nonattainment under the proposal.
    Response. The statutory requirements for areas designated 
nonattainment are set forth in CAA section 172(c), and a proposed 
interpretation of these requirements for the 1997 NAAQS is presented in 
our recent PM Implementation proposal. These include requirements for 
reasonably available control measures, reasonably available control 
technology, reasonable further progress, an emissions inventory, new 
source review and permits, contingency measures, an attainment 
demonstration, and other requirements as specified. More information on 
this proposal and its provisions is available at http://www.epa.gov/
pmdesignations/regs.htm. Furthermore, if new or revised PM NAAQS are 
promulgated, EPA will issue a rule to guide the transition from the 
current standards to the revised standards, providing flexibility where 
appropriate and consistent with statutory obligations. In the ANPR on 
transition issues published in the Federal Register on February 9, 
2006, EPA requested comment on a number of issues, including: the 
timing of revocation of the current PM2.5 standards and 
PM10 standards if the standards are revised; the need for an 
anti-backsliding rule and the necessary contents of such a rule; the 
effect of any revised standards on New Source Review requirements; and 
how the transition would affect general and transportation conformity 
programs.

    Question 3c. Please describe the incremental requirements for any 
areas that are in nonattainment for the current standard and would be 
designated as in nonattainment for the proposed standard.
    Response. All areas that EPA has designated nonattainment for 
particulate matter, whether already designated under an existing NAAQS 
or newly designated following a revision to the NAAQS, are obligated to 
meet the same requirements (described above).

    Question 3d. Please describe the sanctions that would be applied to 
an area that would not meet the proposed standard by 2015.
    Response. The CAA does not provide for any sanctions based on an 
area's failure to attain by the required attainment date. The sanctions 
provisions of the Act, sections 110(m) and 179(a) and (b), only apply 
when a State fails to submit a complete SIP, EPA disapproves a SIP, or 
EPA finds a State is failing to implement its SIP. The Act does, 
however, impose requirements for areas that fail to reach attainment. 
According to section 179(c) of the CAA, EPA must determine, no later 
than 6 months after the applicable attainment date for any 
nonattainment area, whether the area has attained the standard by that 
date. For all areas for which the Administrator publishes a notice of 
failure to attain, CAA section 179(d) requires that, within 1 year, 
each area submit a revised State implementation plan that is consistent 
with sections 110 and 172 and that contains any other measures that EPA 
may require.
    It should be noted that 2015 is the earliest possible date that 
these requirements would come into play, assuming that no attainment 
date extension has been granted for the area in question. According to 
the timeline estimated by EPA, we expect to complete designations for 
any revised PM2.5 NAAQS no later than December 2009, with an 
effective date in early 2010. CAA section 172(a)(2) requires States to 
reach attainment with the standards as expeditiously as practicable but 
no later than 5 years after the effective date of designation, with a 
possible extension of up to 5 additional years based on the severity of 
nonattainment and the availability and feasibility of pollution control 
measures. According to the estimated timeline, this would mean that all 
States would be required to reach attainment with any revised 
PM2.5 NAAQS as expeditiously as practicable, but no later 
than early 2020. Attainment determinations would be based on data from 
the immediately preceding three calendar years. If necessary, the State 
may also apply to the Administrator for up to two additional 1-year 
extensions. These can be granted if: (1) the State has complied with 
all requirements and commitments pertaining to the area in its SIP; and 
(2) in accordance with guidance published by the Administrator, no more 
than a minimal number of exceedances of the relevant standard have 
occurred in the area in the previous year. If granted, these extensions 
could push attainment dates for particular areas out to 2022 at the 
very latest. The requirements of sections 179(c) and (d) would not come 
into play until after the extended attainment date for any area 
receiving such an extension.
                                 ______
                                 
        Responses by William L. Wehrum to Additional Questions 
                          from Senator Clinton

    Question 1. In February 2005, the EPA Inspector General issued a 
report about the Administration's mercury rule. The key finding of that 
report stated that:
    ``Evidence indicates that EPA senior management instructed EPA 
staff to develop a Maximum Achievable Control Technology (MACT) 
standard for mercury that would result in national emissions of 34 tons 
annually, instead of basing the standard on an unbiased determination 
of what the top performing units were achieving in practice. The 34-
tons-per-year target was based on the amount of mercury reductions 
expected to be achieved from implementation of nitrogen oxide (NOx) and 
sulfur dioxide (SO2 ) controls under a separately proposed, 
but related, air rule. According to EPA officials, 34 tons represents 
the most realistic and achievable standard for utilities. However, 
because the results of the MACT standard were prescribed and prior 
estimates were lower than what was proposed, the standard likely 
understates the average amount of mercury emissions reductions achieved 
by the top performing 12 percent of utilities, the minimum level for a 
MACT standard required by the Clean Air Act.''
    How do you justify directing staff to reach a predetermined 34 ton 
result, with dangerous emissions of toxic mercury at issue? Do you 
continue to stand by that decision, even if it means that the amount of 
mercury reductions from the rule will be less than the minimum level 
for a MACT standard as required by the Clean Air Act?
    Response. I was not the Assistant Administrator for Air and 
Radiation at the time the proposed rule was being developed. I did not 
decide that any particular analysis should be developed for the 
proposal because such decisions were not mine to make. I did, however, 
advise that very careful attention should be given to the capability of 
the power sector to achieve mercury emission reductions within the 3- 
or 4-year compliance period for MACT standards. EPA compiled extensive 
information about utility mercury emissions and control techniques in 
the process of developing the MACT standards and analyzing the 
Administration's Clear Skies initiative. That information led us to 
conclude that while mercury reductions could be achieved in the power 
sector within the MACT compliance period, for the most part those 
reductions would not come from mercury-specific controls such as 
activated carbon injection. Consequently, we based the proposed MACT on 
air pollution controls designed to remove SO2 or NOx. In 
particular, as part of the Clear Skies effort, EPA had extensively 
studied the capacity of the power sector to install SO2 and 
NOx controls during the period up to 2010. That work showed that 34 
tons per year was the lowest level of mercury emissions that we could 
reasonably expect the power sector to achieve through the aggressive 
application of SO2 and NOx controls up to 2010.
    Beyond that, I support the regulatory finding that it is neither 
appropriate nor necessary to regulate utility units under section 112. 
That finding was not based on a comparison of a section 112 MACT 
standard versus a section 111 standard.

    Question 2. To assist in development of the mercury rule, EPA 
established an advisory committee with members representing a wide 
variety of interests with different points of view to explore technical 
issues and see whether there was common ground. The advisory committee 
requested analysis of four different alternative sets of standards for 
source-specific controls. EPA staff working with the committee set a 
date for a committee meeting at which they would present the results 
and started preparing to do the studies. The meeting never happened. 
According to the LATimes, in early 2003, Mr. Wehrum, you ``told the 
dozen or so [EPA] staffers that comparative studies would be postponed 
indefinitely.'' In fact, the Advisory Committee was disbanded and those 
studies never were conducted. Similarly, EPA ignored the 
recommendations regarding the mercury rule made by the EPA Children's 
Health Protection Advisory Committee.
    Why were recommendations of these key advisory panels ignored? Why 
the ``indefinite'' postponement? Was the reason you did not allow these 
analyses to be performed because you were concerned they might call 
into question the predetermined 34 ton figure?
    Response. The FACA working group fulfilled its charter by issuing a 
final report, which was presented to the Clean Air Act Advisory 
Committee (CAAAC) in October 2002. In this report, it was clearly 
evident that the FACA working group did not reach consensus; rather the 
report set out a series of divergent recommendations supported by the 
various stakeholders involved in the FACA. These recommendations 
provided guidance for EPA about how it could proceed in the regulatory 
development process. Each of these recommendations was considered as 
EPA developed the proposed rule.
    We have made it clear from the start of the rulemaking process that 
the health effects of greatest concern are possible developmental 
effects in fetuses and young children exposed to unsafe levels of 
methylmercury. Unlike most other rules that EPA develops, this 
rulemaking is singularly directed at developing an appropriate 
regulatory approach for addressing the potential impacts on children. 
Evidence of this can be seen in EPA's first guiding principle in the 
development of a final mercury rule which states that the rule will 
concentrate on the need to protect children and pregnant women from the 
health impacts of mercury.

    Question 3. In addition to refusing to conduct analyses requested 
by advisory committees, Congress or others, it is clear that the EPA 
did not consider all relevant scientific studies that were available. 
When finalizing the mercury rule, EPA ignored an EPA-funded study 
conducted by the Harvard Center for Risk Assessment. This study showed 
potentially greater health benefits from reducing mercury. According to 
press reports, information from the study was shared with EPA the 
summer before EPA finalized the rule, and EPA officials were briefed on 
the study about 2 months before the rule was finalized. Although EPA 
claimed that it had insufficient time to consider the study because it 
was not officially submitted until February 22 (3 weeks before EPA had 
to finalize the rule), in other rules, EPA has considered last minute 
studies when it has been to EPA's advantage to do so.
    Is this any way to conduct public policy and to write 
scientifically sound rules that provide the maximum benefit to the 
public? Is it your contention that there was no legal way at all that 
you could consider these studies? Will you at least admit that the 
benefits from reductions in mercury are significantly larger than EPA 
estimated in its rule?
    Response. As is common practice to preserve fairness for all 
stakeholders, EPA did not consider any documents submitted after the 
close of the public comment period for the Notice of Data Availability 
(NODA) (the comment period had been open essentially the entirety of 
2003 due to the Notice of Proposed Rulemaking and the Supplemental 
Notice of Proposed rulemaking; the comment period for the NODA closed 
on January 5, 2004). During the entire process, there were several 
opportunities to comment on the regulatory approach--proposal, 
supplemental proposal, and notice of data availability. Over the entire 
rule development process, the public had 11 months to submit comments 
before the final comment period closed on January 3, 2005. Thus, the 
Agency believes ample opportunity was provided to insert information 
into the rulemaking docket.
    EPA was aware of the Harvard study and had been promised the final 
results in a timely manner, but the Agency, in fact, did not have 
permission to use the study until the 3 weeks prior to signature that 
you note. Given that the final rules had already been drafted and were 
undergoing final interagency review, we could not adequately consider, 
and incorporate, the results of the Harvard study.
    Well before the rulemaking deadline, EPA requested that the NESCAUM 
and Harvard researchers share the report with the Agency. EPA staff 
were briefed by one of the report authors in late August 2004 on some 
of the approaches the report authors were considering and on January 3, 
2005, received a brief summary of NESCAUM's forthcoming report. 
However, the submitted summary comments did not contain sufficient 
detail on the report's final methodology or results for EPA to rely on 
the information in the rulemaking. More importantly, EPA's review of 
these preliminary documents led the Agency to determine that the 
NESCAUM approach did not raise new issues not previously considered by 
the Agency that would be material to the rule.
    In response to your inquiry, the Administrator asked EPA's experts 
to take a close look at the NESCAUM report. Their review of the full 
report only reinforces our assessment of the preliminary materials. 
Having been briefed on the report, I believe that, had the report been 
submitted in a timely manner, our analysis of the CAMR would not have 
changed in any material way.
    The issues raised in the Harvard study are among the issues on 
which EPA has granted reconsideration, and we will again address that 
study and the other comments we received in making our final 
determination, which we expect to complete by May 31, 2006.

    Question 4. I want to give you an opportunity to indicate that you 
would take air pollution policy in a different direction if you were 
confirmed. In that regard, I want to ask you about a recently released, 
EPA-funded study which found that 70 percent of the mercury in rain 
collected in Steubenville, OH, is from nearby coal-burning industrial 
plants. This stunning finding is very much at odds with the rationale 
that EPA consistently provided for proposing a cap-and-trade approach 
to the mercury problem. Yet EPA's response to the press regarding the 
Steubenville study was that EPA knew all along that the Midwest stands 
out as a region where mercury emissions would be driven up by regional 
sources. This recent acknowledgment of high regional impacts from 
regional sources contrasts sharply with the message EPA sent when it 
issued the mercury rule, and confirms that trading is a bad idea. Do 
you think that citizens of Steubenville should be subject to such high 
deposition rates of toxic mercury? Will you commit to withdrawing the 
mercury trading proposal in light of the Steubenville study?
    Response. EPA's air quality modeling in support of its rules 
estimated that about half of the mercury deposited in the area around 
Steubenville comes from U.S. powerplants while up to 70 percent of 
mercury deposition in areas just east comes from U.S. powerplants. The 
Steubenville study cannot be directly compared with the model results 
in part because the Steubenville study used a different timeframe for 
its analysis. However, the results appear to be generally consistent 
with our modeling in suggesting that a significant fraction of the 
mercury deposited in the area comes from powerplants. As powerplants in 
the area respond to CAIR and CAMR by installing emission control 
equipment, this fraction is expected to be significantly reduced. Based 
on the modeling used to develop those rules, EPA estimates that there 
will be more than an 80 percent reduction in mercury deposition in Ohio 
and about a 90 percent reduction in the neighboring States of 
Pennsylvania and West Virginia.
    Once the Steubenville study is published and available, its 
research findings will be incorporated in the Agency's ongoing efforts 
to better understand mercury transport and to control utility 
emissions.
                                 ______
                                 
        Responses by William L. Wehrum to Additional Questions 
                         from Senator Murkowski

    Question 1. Mr. Wehrum, thank you for being here. There are very 
few agencies in the center of more controversies than EPA. A number of 
those controversies seem to deal with air quality, and you seem to be 
right in the middle. We in Alaska may escape some of the interstate 
issues, but our municipalities and industries are nonetheless affected 
by the Agency's regulations.
    Before we get into the larger picture, I want to explore your view 
about situations in which no violation is occurring, but one interest 
feels that another interest should be more strictly regulated 
regardless, and has asked the Agency to do so.
    How do you feel about that? I'd like to know your view on the role 
that science should play, and whether you think it's appropriate for 
the Agency to defer a decision if the parties in dispute are working to 
develop a mutually acceptable solution.
    Response. I believe that your question refers to our pending review 
of the Organic Liquids Distribution (OLD) maximum available control 
technology (MACT) standard and the potential effect this may have on 
the Alyeska Marine Terminal ballast water treatment facility. As you 
note, we are not aware of any violations at this facility. Our action 
underway in this case is a reconsideration of our prior decision not to 
establish a MACT standard for air emissions from wastewater collection 
and treatment at OLD facilities. This action was triggered by an 
administrative petition submitted to us by the Prince William Sound 
Regional Citizens Advisory Council (RCAC) and a lawsuit filed by one of 
its members challenging our previous decision and asserting that the 
Alyeska facility has significant uncontrolled air toxics emissions. In 
a letter dated April 16, 2004, the Agency agreed to reconsider the 
decision, and as a result, the parties agreed to a stay of the 
litigation pending our administrative review.
    In situations where parties have a disagreement, we fully support 
addressing any issues through a process of dialog and facilitation, 
where appropriate. In this case, we have been working collectively with 
RCAC and Alyeska, as you suggest, and are encouraged by their efforts 
to work out a solution that could possibly resolve RCAC's concerns.
    Thank you. Let's get back to the MACT issue. We are all concerned 
about clean air, and we certainly don't want to see our air quality 
getting worse when we've expended so much effort on it. I understand 
that we're only talking about a draft, not a plan the Agency has 
approved, but I'm looking for plain speaking here--your own words, 
without any bureaucratese. . . .

    Question 2. Do you think the new rule would increase or decrease 
toxic emissions as a nationwide total, on a regional basis, and as a 
factor for individual operations? Why do you think so?
    Response. We have not yet conducted an analysis that would answer 
your question. But there is good reason to believe that a rule such as 
the one included in the draft proposal would create a strong incentive 
for certain sources to reduce emissions below current levels. Such a 
rule would also theoretically allow other sources to increase 
emissions. We will seek to determine what this balance is as we proceed 
with the rulemaking. Please see the answer to question 9 from Senator 
Jeffords if you would like a more detailed explanation.

    Question 3. What would prevent a company from letting itself exceed 
its limit temporarily, knowing it would not be penalized for doing so? 
Why wouldn't it do that over and over?
    Response. Virtually all sources must take effectively enforceable 
limits on their potential to emit to qualify as an area source. Sources 
are expected to meet these limits on a continuous basis, which will be 
documented through appropriate monitoring, recordkeeping, and 
reporting. Deviations or exceedances of the limits will be treated as 
enforceable actions as with any other rule.

    Qustion 4. Mr. Wehrum, you are being considered for a very 
important job--one that requires you not only to be a technical expert, 
but to be an effective administrator. You obviously have some 
dissension in the ranks over this new air quality issue, at least. How 
do you propose to go about ensuring that you have the confidence and 
support of EPA's regional offices and staffs?
    Response. EPA has longstanding procedures for involving the 
Agency's regional offices in the development of rules of national 
significance. Regional staff bring valuable experience, perspectives 
and ideas to the task of designing effective and efficient regulatory 
programs. With respect to the draft proposed rule regarding the once-
in-always-in policy, the regions were involved in reviewing drafts of 
the proposal, as their comments indicate. To the extent any regional 
office has not had an adequate opportunity to participate in the rule 
development process, I will certainly try to provide it with that 
opportunity as the process moves forward.
                                 ______
                                 
        Responses by William L. Wehrum to Additional Questions 
                          from Senator Carper

    Question 1. Toxic Release Inventory.--Late last year, EPA announced 
that it would like to reduce the burden to industry of the reporting 
requirements of the Toxics Release Inventory. The Toxics Release 
Inventory requires industries to monitor and annually report their 
emissions of toxic chemicals. In order to reduce the burden EPA has 
proposed to raise the threshold for reporting from 500 lbs. to 5000 
lbs. and require companies to report every 2 years instead of annually. 
I understand that EPA has merely announced its ``intent'' to propose 
these changes. Will you rescind this notice of intent?
    Response. The Toxics Release Inventory program is implemented by 
EPA's Office of Environmental Information (OEI). Upon your request, I 
would be pleased to forward your inquiry to OEI.

    Question 2. Clean Air Mercury Rule.--During the hearing you 
mentioned the merits of the Clean Air Mercury Rule. It is my 
understanding that a large portion of the reductions assumed in the 
Mercury Rule are the result of co-benefits from the Clean Air 
Interstate Rule. Please explain how much mercury will be removed from 
powerplant emissions as a direct result of the Mercury Rule, and when 
those reductions will be realized.
    Response. EPA examined the incremental impact of the Clean Air 
Mercury Rule (CAMR) on top of the Clean Air Interstate Rule (CAIR) 
during the CAMR rulemaking process. EPA projects that CAMR will result 
in an annual incremental mercury emissions reduction of 6.7 tons in 
2010, 6.5 tons in 2015, and 9.7 tons in 2020. Cumulatively, over the 
years 2010 to 2020, EPA estimates that CAMR will provide about 80 
additional tons of mercury emissions reductions relative to CAIR alone.
                                 ______
                                 
        Responses by William L. Wehrum to Additional Questions 
                         from Senator Lieberman

    Question 1. Following the February 8, 2006 oral argument in New 
York v. EPA, D.C. Circuit Case No. 03-1380, you told a reporter that 
you were optimistic and ``confident of success on the merits'' in the 
case. Less than 6 weeks later, the panel issued a unanimous decision 
vacating the rule and declaring that EPA's attempted defense of it 
would make sense ``[o]nly in a Humpty Dumpty world.'' How, if at all, 
has the court's unequivocal opinion changed your view of the Equipment 
Replacement Provision and the EPA legal theory underlying it?
    Response. While we are certainly disappointed that the Court 
vacated the Equipment Replacement Provision (ERP), EPA respects the 
opinion of the court and we will act in accordance with their decision 
unless the decision is reversed. We are considering options for how to 
proceed in light of the decision, and have not ruled out requesting 
panel rehearing or rehearing en banc and/or seeking certiorari. We also 
plan to continue to work on efforts to improve and streamline the NSR 
program in accordance with the Court's opinion.

    Question 2. At a June 10, 2004 American Bar Association Event 
entitled, ``Update: Clean Air Act--Satellite Seminar,'' you stated 
that, notwithstanding the D.C. Circuit's stay of EPA's Equipment 
Replacement Provision, the Office of Air and Radiation would continue 
to apply the legal interpretation expressed in that rule, ``about how 
we think routine maintenance, repair, and replacement ought to be 
implemented,'' to EPA's preexisting four-factor test for determining 
whether a given physical activity should be considered ``routine'' and 
thus not ``any physical change.'' In light of the D.C. Circuit's recent 
vacatur of the Equipment Replacement Provision, and considering the 
legal interpretation expressed in the panel's unanimous opinion, do you 
commit that, under you, EPA's air office will no longer implement, in 
any way, the legal interpretation expressed in the Equipment 
Replacement Provision?
    Response. EPA respects the opinion of the Court on the Equipment 
Replacement Provision and will act in accordance with that decision 
unless it is reversed.

    Question 3. In August 2003, the General Accounting Office found 
that ``EPA relied primarily on anecdotal information from industry in 
concluding that the NSR program, prior to the final rule, discouraged 
some energy efficiency projects--such as upgrades to industrial 
boilers--including some projects that would have reduced air emissions. 
. . . [B]ecause EPA relied on anecdotal information rather than a 
statistically valid sample or industry-wide survey, the Agency's 
findings do not necessarily represent NSR's effect on energy efficiency 
projects throughout the industries subject to the program.'' In 
September 2004, EPA's own inspector general found that the Agency's 
``October 2003 NSR rule change has seriously hampered [Office of 
Enforcement and Compliance Assurance's] settlement activities, existing 
enforcement cases, and the development of future cases.'' What, 
specifically, have you done to ensure that EPA's air office will not 
produce any more regulations that are based on self-serving, 
unsubstantiated anecdotes and that cripple EPA's enforcement of 
congressional mandates contained in the Clean Air Act?
    Response. The Office of Inspector General's (OIG) September 30, 
2004 report made findings about the Equipment Replacement Provision 
(ERP), and made several recommendations to address these findings. In 
comments we submitted to the OIG, we identified several major flaws in 
that draft which, if not corrected, would in our view result in an 
inaccurate, misleading, incomplete, and superficial report. While some 
of our comments were incorporated, we believe the major flaws that we 
identified were not satisfactorily addressed. As a result, we believe 
that the conclusions in the report--that the final rule seriously 
hampered NSR enforcement and will nullify the reductions that will 
result from NSR enforcement activity--are not justified.
    Also, while the OIG Report was narrowly focused to consider the 
effect of the ERP on pending enforcement cases, it failed to consider 
whether the Rule is appropriate on a cross-industry basis going 
forward, as did EPA. Moreover, the Report specifically did not compare 
the merits of CAIR and non-utility programs to the NSR utility 
enforcement initiative. Thus, the OIG Report's recommendations do not 
reflect a complete weighing of the factors EPA considered in adopting 
the ERP.

    Question 4. Under your watch at the air office, EPA has proposed to 
allow electric utility units ``to use the same maximum achievable 
hourly emissions tests we apply under NSPS to determine whether a 
physical change in or change in the method of operation of. . . results 
in an emission increase of either NOx or SO2 emissions under 
the major NSR program.'' 70 Fed. Reg. 61081, 61088/2 (Oct. 20, 2005). 
Do you acknowledge that such a provision would contravene the D.C. 
Circuit's holding that ``Congress intended to apply NSR to changes that 
increase actual emissions instead of potential or allowable emissions'' 
(New York v. EPA, 413 F.3d 3, 40 (D.C. Cir. 2005))?
    Response. The opinion by the U.S. Court of Appeals for the District 
of Columbia in New York v. EPA, 413F.3d 3 (D.C. Cir June 24, 2005), 
held that ``the plain language of the CAA indicates that Congress 
intended to apply NSR to changes that increase actual emissions instead 
of potential or allowable emissions.'' Id., slip op at 40. I respect 
the decision of the Court. Unless the decision is altered or reversed, 
I will be sure that our final rule is consistent with that decision.

    Question 5. On February 3, 2005, EPA's inspector general found that 
``EPA senior management instructed EPA staff to develop a Maximum 
Achievable Control Technology (MACT) standard for mercury that would 
result in national emissions of 34 tons annually, instead of basing the 
standard on an unbiased determination of what the top performing units 
were achieving in practice.'' What, specifically, have you done to 
ensure that EPA's air office will never again short-circuit and 
suppress internal technical inquiry in furtherance of a scheme to 
disobey a congressional mandate?
    Response. In considering a MACT standard for mercury, it was 
important for EPA to pay careful attention to the capability of the 
power sector to achieve mercury emission reductions within the 3- or 4-
year compliance period for MACT standards. EPA compiled extensive 
information about utility mercury emissions and control techniques in 
the process of developing MACT standards and analyzing the 
Administration's Clear Skies initiative. That information led us to 
conclude that while mercury reductions could be achieved in the power 
sector within the MACT compliance period, for the most part those 
reductions would not come from mercury-specific controls such as 
activated carbon injection. Consequently, we based the proposed MACT on 
air pollution controls designed to remove SO2 or NOx. In 
particular, as part of the Clear Skies effort, EPA had extensively 
studied the capacity of the power sector to install SO2 and 
NOx controls during the period up to 2010. That work showed that 34 
tons per year was the lowest level of mercury emissions that we could 
reasonably expect the power sector to achieve through the aggressive 
application of SO2 and NOx controls up to 2010.

    Question 6. Do you believe that EPA's December 13, 2005 letter to 
E3 Consulting, in which the Agency interprets the Clean Air Act to 
exclude integrated gasification combined cycle technology from the 
required search for the best available control technology for a new 
coal-fueled powerplant, qualifies as a ``regulatory approach[] that 
will encourage advancements in environmental technology'' at coal 
powerplants (Report of the National Energy Policy Development Group, 
Ch. 5, at 15)?
    Response. Yes, we believe this approach is consistent with the goal 
of encouraging advancements in environmental technologies while 
maintaining diversity of electricity generation across the country. In 
particular, this approach encourages improved control technology for 
plants fueled with pulverized coal.
                                 ______
                                 
        Responses by William L. Wehrum to Additional Questions 
                        from Senator Lautenberg

    Question 1. Were you ever advised by your General Counsel's Office 
that the ``Equipment Replacement Rule'' was at odds with the Clean Air 
Act?
    Response. EPA's Office of General Counsel (OGC) is responsible for 
providing authoritative legal advice to Agency management, and that 
Office prepared the legal analysis on which the Equipment Replacement 
Rule was based. OGC's legal advice was integral to our development of 
the rule. Information regarding legal advice from OGC is covered by the 
attorney-client privilege.

    Question 2. Were you advised by the Enforcement Office that the 
``Equipment Replacement Rule'' would undermine the Agency's existing 
lawsuits against polluting powerplants?
    Response. It is EPA's long-standing policy not to comment on 
enforcement-sensitive aspects of ongoing cases. Advice received from 
the Office of Enforcement and Compliance concerning rules being 
developed by the Agency is privileged.

    Question 3. Did you read, or were you aware of, the August 2005 
memo from EPA's Air Enforcement Division Director warning that the 
Emissions Increase rule you proposed in October would ``adversely 
impact our enforcement cases and is largely unenforceable as written''?
    Response. I was aware of the August 2005 memo from EPA's Air 
Enforcement Division Director, but I did not review the Kushner 
memorandum prior to release of the NSR-EGU proposal. The memorandum was 
reviewed by my staff. The NSR-EGU proposal reflects the Agency's 
determination regarding this matter.

    Question 4. If your answer to the previous question is affirmative, 
why did you go forward with the rule in the face of that warning from 
the head of Air Enforcement?
    Response. The Office of Enforcement and Compliance Assistance 
concurred with the NSR-EGU proposal issued on October 13, 2005, and we 
proceeded with the proposal since the rule will remove unnecessary 
regulatory obstacles to achieving significant clean air and public 
health advancements. The public has had an opportunity to comment on 
the proposed rule, and we are in the process of developing a 
supplemental proposal providing enforceable regulatory language. We 
will carefully review the comments received in making decisions about 
the final rule.
                                 ______
                                 
        Responses by William L. Wehrum to Additional Questions 
                           from Senator Boxer

 PROPOSED NATIONAL AMBIENT AIR QUALITY STANDARDS FOR PARTICULATE MATTER

    Question 1. The Environmental Protection Agency must ensure the 
Clean Air Act's National Ambient Air Quality Standards (NAAQS) protect 
public health using the best scientific information. On February 3, 
2006, I wrote to Administrator Johnson regarding EPA's proposed NAAQS 
for Coarse Particulate Matter. As I mentioned then, I have deep 
reservations about the legality and wisdom of EPA's proposed approach, 
which would effectively eliminate the coarse particulate standard in 
many rural areas, and which would undermine the overall integrity of 
these longstanding, health-based air standards.
    The Clean Air Scientific Advisory Committee also voiced concern 
over EPA's actions and has asked the Agency to reconsider its PM 
proposal in significant respects. According to CASAC ``The CASAC 
neither foresaw nor endorsed a standard that specifically exempts all 
agricultural and mining sources, and offers no protection against 
episodes of urban-industrial PM10-2.5 in areas of 
populations less than 100,000.''
    Evidence appears to demonstrate that many of the unscientific 
changes to the coarse particulate standard were made by the Office of 
Management and Budget (``OMB''), which struck language that would have 
provided a protective standard. The OMB also made edits that emphasize 
alleged scientific uncertainty in a way that was not reflected in the 
draft document that EPA provided to OMB. During this Administration, 
OMB's role in altering scientific conclusions and information provided 
by Federal agencies has been highly controversial.
    Have you served as a primary or major contact point with OMB in 
regard to EPA Clean Air Act rulemakings? If so, please provide a list 
and description of such rulemakings.
    Response. Yes. I have served as a primary point of contact with OMB 
in regard to the following EPA Clean Air Act rulemakings:
    (1) The New Source Review (NSR) I Final Rule (published 12/31/02), 
which reformed the NSR program by establishing or revising provisions 
for plant wide applicability limits (PALs), pollution control and 
prevention projects, clean units, and the emissions calculation test 
methodology.
    (2) The Equipment Replacement Provision (ERP) Proposed Rule 
(published 12/31/2002), which proposed changes to the ``routine 
maintenance, repair and replacement'' provisions of the NSR 
regulations.
    (3) The ERP Final Rule (published 10/23/2003), which made changes 
affecting when routine equipment replacement activities require a 
detailed permit review.
    (4) The Clean Air Mercury Proposed Rule (published 1/30/2004), 
which proposed mercury emission reduction requirements for utilities.

    Question 2. Have you attended meetings with OMB regarding EPA rules 
alone or accompanied only by other political appointees? If so, please 
provide a list and description of such rules.
    Response. Yes. Please find enclosed a list of all rules on which I 
had any substantive involvement since joining EPA. I do not have a 
complete recollection of which of these rules involved meetings with 
OMB where I attended alone or only with other EPA political appointees.

    Question 3. Please provide me with all documents, including 
calendar entries, meeting notes, memoranda, e-mails and other documents 
that relate to any meeting with OMB regarding rules in which you served 
as the primary or major contact point, including the proposed 
particulate matter rule.
    Response. Please find enclosed the documents responsive to your 
request that are not privileged. The documents were obtained by 
conducting a search with respect to the four rules listed in my answer 
to question 1a above. Please note that all responsive calendar entries 
have been printed and enclosed. For the remaining documents, we have 
provided an index which lists the docket numbers of responsive 
materials (in the case of the NSR Final and ERP Final and Proposed 
Rules), and a CD containing responsive documents (for the Clean Air 
Mercury Proposed Rule).

    Question 4. Please provide me with all documents that reflect your 
review, approval or editing of rulemaking documents while at EPA, 
including handwritten annotations of rules, e-mails, notes, and other 
documents.
    Response. The documents you request are, by nature, deliberative 
and thus privileged. In my capacity as one of the Administrator's 
principal advisors on rulemakings under the Clean Air Act, I frequently 
review, approve or edit rulemaking documents drafted by OAR staff for 
the Administrator's ultimate approval or disapproval. As such, my 
contributions to the rulemaking process are part of the Agency's 
deliberative process.

    Question 5. Did you review some or all of OMB's comments and 
indicate to EPA career staff that you found OMB's edits and suggestions 
acceptable?
    Response. I review many of the comments that OMB submits on rules 
as part of the interagency review process, and I indicate to EPA staff 
on various occasions which of those edits are acceptable. Other EPA 
managers, both career and political, also perform this role as part of 
their responsibilities in the rule development process.

    Question 6a. Did you review and approve all of OMB's changes to the 
coarse particle standard, including those referenced in my previous 
letter?If not, who did? And, whoever reviewed and approved such 
changes, did that person seek approval from you to approve those 
changes or did you delegate approval authority to that person?
    Response. I reviewed most but not all of OMB's recommended changes 
to the draft proposed standard for coarse particles. I concurred on the 
final draft proposal that was signed by the EPA Administrator.
    The interagency review of the coarse particle standard involved EPA 
staff and management at virtually every level. Ultimately, I concurred 
on the final draft proposal that was signed by the Administrator.

    Question 6b. What process did you undertake to determine the effect 
and advisability of these changes?
    Response. EPA staff and management involved in the development of 
the proposal collaborated extensively in determining which changes were 
appropriate. Ultimately, the proposal reflects the Administrator's 
preliminary judgment regarding what standards are requisite to protect 
public health with an adequate margin of safety.

    Question 7. Please provide all documents and comments in your 
possession relating to the proposed coarse particulate standard, 
including all documents related to OMB and any changes suggested or 
required by OMB.
    Response. I have enclosed all non-privileged documents and comments 
in my possession that are responsive to your request.

    Question 8. The OMB's reported decision to strike the words ``not 
enriched with contaminants typical of urban sources'' in the EPA's 
proposed NAAQS for particulate matter means that rural areas will not 
have the same protection as urban areas from contaminants that EPA 
admits are harmful to public health. As you know, EPA may not consider 
costs in establishing the NAAQS, but can consider costs as a factor in 
determining how entities comply with these standards. Thus, what is the 
public health basis for accepting this changes suggested by OMB?
    Response. The change in language was intended to help clarify the 
precise nature of the indicator for PM10-2.5 that is being 
proposed by the Agency. As noted in the preamble to the proposed rule 
outlining EPA's decision on the PM NAAQS, the Administrator ``sought to 
define the indicator in a way that more clearly focuses on the nature 
of the mix of thoracic coarse particles intended to be included and the 
sources that principally generate that mix'' (71 FR 2667). The 
indicator, which is qualified so as to include any ambient mix of 
PM10-2.5 that is dominated by resuspended dust from high-
density traffic on paved roads and PM generated by industrial sources 
and construction sources, and to exclude any ambient mix of 
PM10-2.5 that is dominated by rural windblown dust and soils 
and PM generated by agricultural and mining sources, ``is not defined 
by nor limited to any specific geographic area, but includes the mix of 
PM10-2.5 in any location that is dominated by these 
sources'' (71 FR 2668). We are taking comment on whether there are 
other classes of sources that should be included or excluded from the 
indicator, and on this general approach to defining the indicator in 
terms of both particle size and categories of named sources.

    Question 9. Is monitoring the only way to be sure that no coarse 
particulate matter of concern is present in rural areas? If not, please 
provide me with a list and description of other effective means of 
ensuring such protections for public health.
    Response. In general, EPA will rely on ambient concentration and 
speciation data, emissions inventory information, and weather data to 
assess the strength of different sources' contributions to elevated PM 
concentrations in any location. As noted in response to your previous 
question, EPA's proposed indicator of coarse particles is intended to 
regulate ``any ambient mix of PM10-2.5 that is dominated by 
resuspended dust from high-density traffic on paved roads and PM 
generated by industrial sources and construction sources, and to 
exclude any ambient mix of PM10-2.5 that is dominated by 
rural windblown dust and soils and PM generated by agricultural and 
mining sources'' (71 FR 2667-8, emphasis added). Thus, it is quite 
likely that some particulate matter of concern will be present in rural 
areas, just as it is possible that some windblown dust and soils, or PM 
generated by agricultural and mining sources, will be found in urban 
areas. EPA's monitoring efforts will focus on distinguishing when the 
ambient mix is dominated by one type of particle or the other. The 
proposed 5-part suitability test for the siting of required monitors is 
designed to ensure placement of monitors in locations that are likely 
to be dominated by coarse particle matter of concern. We think it is 
generally unlikely that coarse particulate matter of concern would 
dominate the ambient mix in rural areas. However, we have requested 
comment on alternative approaches to monitor siting that would examine 
areas where States may wish to place non-required monitors that do not 
meet the proposed 5-part suitability test, but are locations of 
industrial emissions or high density traffic on paved roads which 
create the potential for ambient mixes of coarse particles of the type 
intended to be included in the indicator.

    Question 10. Please provide me with all documents, including but 
not limited to memos, briefing papers, e-mails, meeting notes and other 
records that describes your participation in the development of the PM 
proposal.
    Response. Enclosed please find the non-privileged documents that 
describe my participation in the development of the PM proposal.

       EPA'S RULES TO CONTROL MERCURY EMISSIONS FROM POWER PLANTS

    Question 11a. Cap and trade program for mercury.--The EPA's 
Children's Health Protection Advisory Committee wrote four letters to 
the Agency voicing concerns and presenting data that a cap and trade 
program for mercury might create contamination hotspots that endanger 
public health. The advisory committee members also met with you 
personally in September, 2004 to discuss their concerns over EPA's 
proposal to address mercury emissions from powerplants. A recent EPA-
funded study found that nearly 70 percent of mercury in rain collected 
in the Ohio River Valley comes from nearby coal-fired powerplants. Were 
you aware of studies showing that mercury from powerplants could be 
deposited locally prior to EPA's proposal of its rule to address 
mercury emissions from powerplants?
    Response. During the development of the Clean Air Mercury Rule 
(CAMR), I was aware of studies and modeling indicating that some 
mercury emitted by utilities is deposited near the source. I was also 
aware that the relative proportion of mercury that deposits close to a 
utility source is highly variable and depends on many factors.

    Question 11b. What activities did you participate in related to 
EPA's development of its rule to control mercury emissions from 
powerplants?
    Response. I was extensively involved in many aspects of EPA's 
development of the Clean Air Mercury Rule, not limited to but including 
reviewing drafts of the proposed and final rules, participation in some 
Federal Advisory Committee proceedings and involvement in the 
interagency review process.

    Question 11c. Please provide me with all documents, including 
meeting notes, memoranda, e-mails, briefing material, and other 
documents that describe your participation in EPA's development of a 
mercury emissions rule for powerplants.
    Response. Please find enclosed the documents responsive to your 
request that are not privileged. All responsive calendar entries have 
been printed and enclosed. For the remaining documents, we have 
provided a CD containing all non-privileged documents that describe my 
participation in the development of the mercury emissions rule for 
powerplants.

    Question 12a. EPA's decision not to conduct a comprehensive 
assessment of children's health in relation to the Agency's mercury 
rule.--The New York Times reported that you told EPA staffers at a 
meeting held in the Spring of 2003 that EPA would indefinitely postpone 
doing comparative studies of proposals to reduce mercury emissions from 
coal-fired powerplants, including studies on public health and economic 
effects. The Times quoted one staffer who had served under several 
administrations as saying, `` `I was floored . . . We pointed out that 
the studies were required . . .' ''
    The Agency's Children Health Protection Advisory Counsel and EPA's 
Inspector General recommended that EPA conduct such a study on 
children's health. The EPA did produce a document that assessed the 
rule's benefits to children's health. However, the Agency failed to put 
this document out for public comment prior to the final rule and, 
moreover, the document is not the comparative study recommended by 
EPA's children health advisors and Inspector General. Did you tell EPA 
staffers that such a comparative analysis would be indefinitely 
postponed in the Spring of 2003?
    Response. I do not recall making that statement, although I did 
attend and actively participate in a series of meetings held at or 
about that time regarding analysis related to the Clean Air Mercury 
Rule (CAMR). In developing the final rule, the Agency analyzed several 
policy options and the respective health benefits, including to 
children, of those options. These policy options included the Clean Air 
Interstate Rule (CAIR) alone; the CAMR as finalized with a first phase 
cap set at 38 tons in 2010 and a second phase cap set at 15 tons in 
2018; two options involving moving up the date of the second phase cap; 
and a hypothetical bounding case of zeroing out all mercury emissions 
from powerplants. These options are detailed in the final Regulatory 
Impact Analysis (RIA) and other supporting documents to the CAMR. EPA 
did not analyze a particular MACT option for the final rule because the 
Agency determined that it was neither appropriate nor necessary to 
regulate powerplants under section 112 of the CAA. Our analyses 
quantify the neurological health benefits to children as a result of 
this rule based on reduced inutero exposure mercury from freshwater, 
recreationally caught fish. EPA considered all potential benefits, even 
those we concluded could not or should be quantified (e.g., effects for 
which the weight of the evidence is not as strong as it is for 
childhood neurological effects.)

    Question 12b. Please provide me with all documents, including 
meeting notes, memoranda, e-mails, briefing material, and other 
documents that describe EPA's rationale for failing to conduct the 
requested study on children's health.
    Response. As indicated above, since we believe we conducted an 
analysis that, among other things, compared the relative benefits to 
children of several regulatory options, we do not have documents 
responsive to your request.

 EPA'S RULES TO WEAKEN EMISSIONS OF HAZARDOUS AIR POLLUTANTS FROM THE 
                         WOOD PRODUCTS INDUSTRY

    Question 13a. Questions related to your involvement in EPA's 
decision to produce a risk-based maximum achievable control technology 
rule for the wood products industry.--The American Forest and Paper 
Association provided EPA with memoranda proposing a rule that uses 
estimated risk levels to exempting facilities that emit formaldehyde, a 
substance that we know causes cancer, from controls required by the 
Clean Air Act's hazardous air pollution program.
    A draft internal EPA enforcement memo dated March 4, 2002 states 
that a risk-based exemption for such facilities was contrary to Clean 
Air Act's language and the law's legislative history. The memo 
concludes by saying, ``EPA would have a difficult time articulating any 
rational basis to defend such a risk-based . . . scheme.'' However, in 
February 2004, EPA issued a risk-based rule that went against its own 
internal advice.
    Prior to EPA's issuance of the rule, did you know that the EPA's 
Office of General Counsel had conducted an analysis that concluded such 
a risk-based rule was contrary to the Clean Air Act's requirements?
    Response. The analysis referenced above was in a draft staff 
memorandum that was never finalized and that did not purport to 
represent the views of the General Counsel. Advice of OGC personnel 
given to me or to other Agency officials is privileged communication.

    Question 13b. What activities did you participate in related to 
EPA's development of a maximum achievable control technology rule for 
the wood products industry?
    Response. With respect to EPA's maximum achievable control 
technology rule for the wood products industry, I focused primarily on 
the development of the rule's risk-based provisions.

    Question 13c. Please provide me with all documents, including 
meeting notes, memoranda, e-mails, briefing material, and other 
documents that describe your participation in EPA's development of a 
maximum achievable control technology rule for the wood products 
industry.
    Response. I have enclosed the non-privileged documents that 
describe my participation in the development of the MACT rule for the 
wood products industry.

    Question 13d. What is the detailed basis for your assertions that 
the scientific findings related to leukemia risk and formaldehyde 
should not be considered at this time.
    Response. There is a significant body of evidence relating to the 
potential linkages between formaldehyde and leukemia that is still 
growing and under discussion within the scientific community today. At 
the time of the rulemaking, we made the determination that the best-
available scientifically credible information concerning the 
carcinogenicity of formaldehyde did not include the still-evolving 
information regarding leukemia. However, we acknowledged at that time 
that the EPA was in the midst of a complete scientific review of the 
carcinogenicity of formaldehyde and that the provisions of the rule 
would encompass the results of that work once it is completed. 
Currently, that scientific review is scheduled for completion in the 
summer of 2007.

               CREATION OF THE CLEAN AIR INTERSTATE RULE

    Question 14. In EPA's preamble to the Clean Air Interstate Rule 
(CAIR), EPA indicates that as a precondition of ``calling in'' a State 
Implementation Plan under section 110(a)(2)(D), its interpretation of 
the Clean Air Act is that such future action must ``bring a significant 
number of areas into attainment.'' This language is at odds with the 
clear language of section 110(a)(2)(D) stating that each SIP must 
``prohibit[] consistent with the provisions of this subchapter, any 
source or other type of emissions activity within the State from 
emitting any air pollutant in amounts which will--(I) contribute 
significantly to non-attainment in, or interfere with maintenance by, 
any other State with respect to such national primary or secondary 
ambient air quality standard.''
    The EPA has never before suggested that this language means 
something other than what it says or, more specifically that it only 
applies in situations where any future action would bring a significant 
number of areas into attainment. Such a requirement constitutes a very 
high threshold and would preclude most future actions under this 
provision. How is this interpretation consistent with the plain 
language of the Clean Air Act?
    Response. The introduction to the questions above incorrectly 
characterizes EPA's statement in the preamble to the CAIR, which 
addressed when EPA would consider issuing future broad multi-state 
rulemakings under section 110(a)(2)(D) regarding transported emissions. 
EPA's statement in the CAIR does not address the circumstances under 
which EPA might issue a SIP call to an individual State. Therefore, the 
responses below relate only to the approach for determining whether a 
broad, multi-State transport rulemaking is appropriate.
    EPA believes that broad multi-state rules must be justified by a 
careful evaluation of the air quality improvement that will result from 
the controls under consideration. The Agency intends to undertake any 
future broad, multi-state rulemakings under section 110(a)(2)(D) 
regarding transported emissions only when they--as was the case for 
CAIR and the NOx SIP call--produce substantial air quality benefits 
across a broad area and have beneficial air quality impacts on a 
significant number of downwind nonattainment areas, including bringing 
many areas into attainment. EPA is not adopting this as a statutory 
interpretation, but as a policy about when to initiate broad multi-
state rulemakings under section 110(a)(2)(D). The notice rejected an 
alternative suggestion, supported by some commenters, that would have 
created a quantitative criterion specifying a minimum percentage of 
nonattainment areas before invoking this section.

    Question 15. What is the purpose of including this discussion in 
the CAIR?
    Response. The discussion was intended to clarify EPA's position on 
the most appropriate circumstances for issuing broad multi-state rules 
to address interstate transport issues.

    Question 16. Is this language simply included in the CAIR as a 
means of imposing an additional, non-statutory hurdle on future SIP 
calls?
    Response. No. This is a clarification of our position and is wholly 
consistent with the Agency's prior use of section 110(a)(2)(D) in CAIR 
(2005) and the NOx SIP call (1998).

    Question 17. Is there a public health based reason for doing so?
    Response. The NAAQS must be attained by specified deadlines 
whatever implementation strategy is ultimately adopted. The issue here 
is related to the efficiency, effectiveness, and timing of 
implementation actions to protect public health. The issuance and 
implementation of regulations under section 110(a)(2)(D) calls for a 
substantial effort on the part of EPA, affected States, and source 
categories. It is incumbent upon the Agency to ensure that the scale 
and nature of the pollution problem to be addressed is commensurate 
with the implementation approach. Depending upon the circumstances, 
risk reduction may be more effectively and rapidly addressed by local 
as opposed to widespread regional controls.

    Question 18. Will this language make it easier or more difficult 
for a future EPA Administrator to issue a SIP call under this section?
    Response. Neither. As stated in the response to question 1 above, 
this language reflects EPA's preference for future rulemakings of this 
type. EPA rejected suggestions that it develop specific quantitative 
criteria.

    Question 19a. What is the origin of this idea? Did this idea 
originate with you or another political appointee at EPA?
    Response. To the best of my knowledge, this idea originated at the 
Department of Energy during interagency review of the draft proposed 
CAIR rule. Douglas Carter (retired) of DOE was primarily involved in 
developing these ideas. On EPA's part, negotiations with DOE on the 
topic for both the proposal and final rules were led by then Assistant 
Administrator Jeffrey Holmstead. I became involved in the discussions 
on the specific language for the final rule. EPA career staff reviewed 
and provided comments on language for both proposal and final CAIR 
actions. As part of these negotiations, we agreed to solicit public 
comment on DOE's original, more expansive suggestion in the CAIR 
proposal.

    Question 19b. Did this idea originate outside the EPA? If so, 
please describe the organization and/or individual that originally 
suggested this idea.
    Response. To the best of my knowledge, this idea originated at the 
Department of Energy during interagency review of the draft proposed 
CAIR rule. Douglas Carter (retired) of DOE was primarily involved in 
developing these ideas. On EPA's part, negotiations with DOE on the 
topic for both the proposal and final rules were led by then Assistant 
Administrator Jeffrey Holmstead. I became involved in the discussions 
on the specific language for the final rule. EPA career staff reviewed 
and provided comments on language for both proposal and final CAIR 
actions. As part of these negotiations, we agreed to solicit public 
comment on DOE's original, more expansive suggestion in the CAIR 
proposal.

    Question 19c. Did you solicit this idea or similar ideas from 
outside the EPA?
    Response. To the best of my knowledge, this idea originated at the 
Department of Energy during interagency review of the draft proposed 
CAIR rule. Douglas Carter (retired) of DOE was primarily involved in 
developing these ideas. On EPA's part, negotiations with DOE on the 
topic for both the proposal and final rules were led by then Assistant 
Administrator Jeffrey Holmstead. I became involved in the discussions 
on the specific language for the final rule. EPA career staff reviewed 
and provided comments on language for both proposal and final CAIR 
actions. As part of these negotiations, we agreed to solicit public 
comment on DOE's original, more expansive suggestion in the CAIR 
proposal.

    Question 20. Have you ever solicited ideas regarding ways in which 
future EPA Administrations could be prevented from taking certain 
actions to control air pollution?
    Response. No, I have not solicited such ideas.

    Question 21. Have you ever had meetings with people outside EPA 
regarding such a subject?
    Response. No, I have not had such meetings.

    Question 22. Please provide me with all documents, including 
meeting notes, memoranda, e-mails, briefing material, and other 
documents that relate to this concept, or any concept intended to limit 
or constrain the ability of a future Administration to act to reduce 
air pollution under the Clean Air Act.
    Response. Please find enclosed the non-privileged documents that 
relate to the concept addressed by your question.

    Question 23. Please provide me with all documents, including 
meeting notes, memoranda, e-mails, briefing material, and other 
documents that relate to any of the questions asked above.
    Response. The documents I am providing you in response to question 
9 are also responsive to the other questions asked above.

EPA'S DRAFT PROPOSED RULE THAT WEAKENS PUBLIC HEALTH PROTECTIONS ON THE 
                  EMISSION OF HAZARDOUS AIR POLLUTANTS

    Question 24. The Washington Post and New York Times have recently 
reported that a draft EPA rule would weaken nearly 100 toxic air 
pollution standards and allow facilities to increase toxic air 
emissions, such as arsenic, mercury and lead, by up to 50,000 pounds a 
year. An internal EPA memo dated December 13, 2005 shows that seven of 
ten EPA Regional Administrators said that the proposal would allow 
polluters to ``virtually avoid regulation and greatly complicate any 
enforcement action against them'' and eliminate the ability to 
adequately enforce safeguards against polluters.
    Reports are that EPA officials dismissed regional officials' 
concerns by saying that polluters would not increase their emissions 
because they feared ``negative publicity'' and because they wanted to 
``maintain their appearance as responsible businesses.''
    Do you believe that fear of negative publicity or maintaining 
appearance as a responsible business ensures that facilities will not 
increase emissions and can substitute for enforceable requirements?
    Response. The press reports concern a preliminary draft of a 
proposed rule, and we are still examining the issues. I believe there 
are several factors, though, that would tend to minimize those 
increases in many cases. For example, some sources want to be a good 
corporate citizen and would choose not to change current emission 
levels. Other companies would want to avoid the negative publicity 
associated with increases in toxic air pollutants. Additionally, at 
many sources, emissions reductions are needed for other reasons, such 
as netting, trading or meeting criteria pollutant standards, and thus 
may not be increased for those reasons. Last, I believe most sources 
would want to establish ``potential to emit'' emission limits well 
below the major source threshold so as not to jeopardize their area 
source status.

    Question 25. EPA Regional personnel have complained that they have 
been excluded from full participation in the formulation of this and 
other proposals. You indicated in the hearing that you conduct a 
collaborative process. What do you intend to do to increase the 
collaborative nature of the draft rulemaking process? Do you agree with 
the Regions that their participation could be increased?
    Response. The Agency has well established procedures for internal 
review and comment. The regions have reviewed the first complete draft 
of these amendments as well as a second draft. Numerous revisions have 
been and will be made as a result of their input and comments. The 
normal collaborative rulemaking process has been followed.

                         YUCCA MOUNTAIN ISSUES

    Question 26. Do you believe that naturally occurring background 
levels of radiation that result in thousands of deaths annually is a 
safe level of radiation to apply as a regulatory standard for human 
exposure?
    Response. Given the complexities present at Yucca Mountain, and the 
extremely long time periods contemplated for regulation, potential 
exposures in the range of natural background radiation represent a 
reasonable level of safety. From a global perspective, doses in the 
range of natural background radiation do not threaten life or limit the 
ability of future generations to pursue their interests. It is 
important to note that the proposed dose standard would apply only to 
the hypothetical Reasonably Maximally Exposed Individual, who is among 
the most highly exposed members of the population. This level would not 
represent exposures for the population as a whole.

    Question 27a. EPA looks at a range of risk, starting with a risk of 
one additional death in 1 million and sometimes considering death rates 
of 1 in 10,000, when contemplating risk for the purpose of establishing 
regulatory standards. Risk levels under consideration by EPA for Yucca 
Mountain are far less protective. Please answer questions a-c with a 
yes or no and include an explanation.
    Do you believe cancer risk levels approaching 1000 times less 
protective than the risk range typically employed by EPA (described 
above) are acceptable?
    Response. Starting from a figure of 1 in 10,000, EPA's current risk 
estimate for radiation-induced cancers is an order of magnitude smaller 
than the values cited in your question. The current U.S. baseline 
cancer risk is about 22 percent, or 1 in 5. Using EPA's current cancer 
risk coefficients, we estimate that members of a population receiving 
an extra 350 mrem/yr for their whole life would have an additional 
cancer mortality risk of 1 to 2 in 100. It is important to note that 
these estimates of cancer incidence relate to the dose standards 
proposed to apply only to the hypothetical Reasonably Maximally Exposed 
Individual, who is among the most highly exposed members of the 
population. Therefore, these estimates do not represent a prediction of 
increased cancer incidence for the population as a whole. Given the 
complexities present at Yucca Mountain, and the extremely long time 
periods contemplated for regulation, potential exposures in this range 
represent a reasonable level of safety.

    Question 27b. Are the cancer deaths that would be associated with 
the proposed Yucca risk standard acceptable in your view?
    Response. Given the complexities present at Yucca Mountain, and the 
extremely long time periods contemplated for regulation, potential 
exposures in the range of natural background radiation represent a 
reasonable level of safety. The current U.S. baseline cancer risk is 
about 22 percent, or 1 in 5. Using EPA's current cancer risk 
coefficients, we estimate that members of a population receiving an 
extra 350 mrem/yr for their whole life would have an additional cancer 
mortality risk of 1 to 2 in 100. It is important to note that these 
estimates of cancer incidence relate to the dose standards proposed to 
apply only to the hypothetical Reasonably Maximally Exposed Individual, 
who is among the most highly exposed members of the population. Based 
on potential pathways of contamination, most of the population near 
Yucca Mountain would be exposed at much lower levels, if at all.

    Question 27c. Is there a cancer risk level that you consider 
unacceptable--such as greater than 1 in 100? 1 in 25? 1 in 12, or must 
the risk of cancer be even higher than that?
    Response. Each situation requires an assessment of factors specific 
to that situation. EPA works to maintain exposures within the risk 
range; however, site cleanups and other actions recognize exceptions 
and mitigating factors, such as cost and technological capability. The 
complexities present at Yucca Mountain and the extremely long time 
periods contemplated for regulation represent such mitigating factors.

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