[Senate Hearing 110-]
[From the U.S. Government Publishing Office]


 
     DEPARTMENT OF THE INTERIOR, ENVIRONMENT, AND RELATED AGENCIES 
                  APPROPRIATIONS FOR FISCAL YEAR 2009 

                              ----------                              


                         TUESDAY, MARCH 4, 2008

                                       U.S. Senate,
           Subcommittee of the Committee on Appropriations,
                                                    Washington, DC.
    The subcommittee met at 10 a.m., in room SD-124, Dirksen 
Senate Office Building, Hon. Dianne Feinstein (chairman) 
presiding.
    Present: Senators Feinstein, Leahy, Stevens, Craig, and 
Allard.

                    ENVIRONMENTAL PROTECTION AGENCY

STATEMENT OF HON. STEPHEN L. JOHNSON, ADMININSTRATOR
ACCOMPANIED BY:
        MARCUS C. PEACOCK, DEPUTY DIRECTOR
        BENJAMIN H. GRUMBLES, ASSISTANT ADMINISTRATOR, OFFICE OF WATER
        SUSAN PARKER BODINE, ASSISTANT ADMINISTRATOR, OFFICE OF SOLID 
            WASTE AND EMERGENCY RESPONSE


             opening statement of senator dianne feinstein


    Senator Feinstein. Good morning, ladies and gentlemen, and 
welcome to the Interior Subcommittee's hearing on the EPA 
agency's fiscal year 2009 budget.
    This one is a series of budget hearings that the 
subcommittee will be holding. But, I'd like to take a moment 
and set the stage for the challenges that this administration's 
request presents, before we begin with the EPA budget.
    The President has requested $25.715 billion in 
discretionary spending for the agencies and programs in the 
Interior budget. That's a cut of $842 million, or 3.2 percent, 
from the currently-enacted level.
    The real cut, of course, is much higher, when you factor in 
some $300 million in fixed costs that must be covered, an extra 
$200 million for fire suppression to meet the 10-year average, 
and approximately $150 million to cover increased health care 
costs for the services provided by the Indian Health Service.
    In short, this Interior budget is a very difficult one, and 
we are going to have our work cut out for us, as we proceed 
with this year's appropriation process.
    With respect to this morning's hearing the administration's 
request for the EPA's budget is $7.142 billion, a $329 
million--or a 4 percent cut--from the 2008 enacted level. This 
proposal calls for the smallest budget for EPA, since 1997. The 
smallest budget for EPA, since 1997.


                            grants to states


    Grants to States for environmental protection, in general, 
are slashed $304 million, a 10 percent cut, for a total of $2.6 
billion. As in previous years, the largest cut is to the Clean 
Water State Revolving Fund. The administration's request for 
this program is $555 million. That's a 20 percent cut from the 
2008 enacted level.
    Now, this happens despite the fact that EPA just released a 
report, citing a need for $20 billion to keep pace with clean 
water infrastructure funding in the United States over the next 
20 years.
    The budget proposes $186 million in State grants for 
reduction of air pollution--that's a 14 percent cut--and it 
eliminates $9.8 million in funds added to clean up air 
pollution in the San Joaquin Valley, and South Coast air 
districts of my State--the two most polluted air districts in 
the country.
    Finally, EPA budget cuts $14 million in funding for climate 
change programs--including the outright elimination of $3.4 
million added last year for a greenhouse emissions reporting 
rule. This comes, despite the fact that Congress has required a 
final rule on this by June 2009, and we know additional funds 
are badly needed to complete this important work. Under this 
budget, though, that money is just gone.
    We're here today to talk about more than the budget, too. 
As you know, I am strongly opposed to the administrator's 
decision last December to deny the State of California its 
authority to regulate greenhouse gas emissions from 
automobiles.
    I'm going to ask Administrator Johnson to justify how he 
could have reached this decision, that California's need to 
regulate greenhouse gases was not compelling or extraordinary, 
when his decision looks to be plainly contradicted by both the 
Clean Air Act, and by 40 years of agency policy.
    What's even more unprecedented, is that he has denied this 
waiver, without offering a shred of legal or technical evidence 
for this decision. Incredibly, EPA released its justification 
for the waiver decision just last Friday--more than 2 months 
after the decision was made. You would think it would be done 
before the decision was made. I want to know why.
    This issue is much bigger than California. Sixteen States 
around the country have asked to implement California's 
emission standards, and take action against climate change. The 
people in those States deserve answers to these important 
questions.
    I'd like to turn now to our distinguished ranking member, 
Senator Allard, for any opening comments you might make.


               opening statement of senator wayne allard


    Senator Allard. Thank you, Madam Chairman.
    Just to make a brief comment here, I want to thank you for 
holding this hearing, and I want to thank Mr. Johnson for 
joining us this morning to testify on the fiscal year 2009 
budget for the Environmental Protection Agency.
    EPA has one of the most important and difficult missions of 
all Federal agencies. The agency's jurisdiction ranges from 
responsibility for clear-up of Superfund sites, to funding 
clean water and drinking water infrastructure programs, to the 
enforcement of a long list of environmental laws.
    The administration has requested $7.1 billion in total 
budget authority for fiscal year 2009--this is $330 million 
below the enacted level.
    While I'm a supporter of this agency's--and the 
administration's--effort to curb spending, I am concerned that 
the bulk of the reduction in EPA's budget is in the form of is 
in the form of a $134 million to the Clean Water SRF.
    As I have mentioned in past years, I am uneasy with 
continued increases in enforcement budget at EPA. The $9 
million increase above the enacted level, $563 million total 
budget for enforcement. I hope that the agency will work in 
good faith with small and rural communities who do not always 
possess the expertise to comply with new regulations.


                    leadville mine drainage tunnell


    Mr. Administrator, I am sure that you are familiar with the 
issues surrounding the Leadville Mine drainage tunnel in Lake 
County, Colorado. I am extremely concerned that Lake County 
officials were forced to declare a state of emergency on 
February 13, to prepare for a possible toxic flood as a result 
of water trapped in a collapsed drainage tunnel.
    Now, EPA is not the only entity that bears responsibility 
for the Leadville Tunnel, but I would like your word, Mr. 
Johnson, that your agency will continue to work toward a long-
term solution for this situation, so that the residents of Lake 
County can rest easy.
    I was pleased that your representative in our Colorado 
meeting took the bull by the horn, so to speak, and came up 
with a short-term solution. So, we're talking about a long-term 
solution for this problem, and I am appreciative of him 
stepping forward at a time when we had a couple of agencies, 
sort of, knowing at each other, and you brought--you took some 
leadership out of your agency and brought about a consensus, 
and I appreciate that.
    Senator Feinstein, I do not necessarily agree on all 
aspects of the greenhouse debate, but I'm concerned by reports 
that the agency may have disregarded standard protocols in 
denying California's Clean Air Waiver Request.
    There are a number of States, including Colorado, which 
would have considered in California's footsteps to adopt a law 
to reduce greenhouse gas emissions from automobiles, if a 
waiver was granted to that State. As a supporter of States' 
rights, I am also troubled by the suggestion that the State of 
California's rights may have been curtailed.
    I'm confident that Senator Feinstein has a number of 
questions for you, Mr. Johnson, on this topic so I look forward 
to a healthy debate during the question round of this hearing.
    Mr. Administrator, thank you again for being here today, 
and I look forward to working with you on the many challenges 
you face at the helm of the agency.
    Thank you, Madam Chairman.
    Senator Feinstein. Thank you very much, Senator.
    I'd like to suggest this, that we hear from Mr. Johnson and 
then we have 10-minute rounds. Since it's the two of us, we go 
back and forth--if that's agreeable with you.
    Senator Allard. That sounds fine, thank you.
    Senator Feinstein. Good, thank you.
    Mr. Johnson.


              summary statement of hon. stephen l. johnson


    Mr. Johnson. Thank you, Madam Chairman.
    Chairman Feinstein, and Senator Allard and members of the 
committee, I'm pleased to be here to discuss the President's 
fiscal year 2009 budget request for the Environmental 
Protection Agency.
    This marks the 8th, and final, budget introduced by the 
President during his tenure. As the Bush administration sprints 
to the finish line, I believe this budget will keep EPA on a 
course for a cleaner tomorrow.
    At EPA, we are proud--our Nation's air is cleaner, our 
water is purer, and our land is healthier than just a 
generation ago. So, we appreciate the President's $7.14 billion 
budget proposal, which will help the EPA keep pace with the 
environmental challenges of tomorrow.
    One important challenge is in the arena of clean and 
affordable energy. With both demand and cost on the rise, 
innovators are moving forward to advance the clean power 
solutions. At the same time, industry is searching for new, 
domestic energy supplies, to help reduce the Nation's 
dependency on foreign oil.
    In doing so, we estimate that industry will explore 
thousands of new oil and gas wells on tribal and Federal lands 
alone, as well as proposing many energy projects.
    To ensure these projects move forward in an environmentally 
responsible manner, this budget requests $14 million to hire 
additional technical experts, and provide grants to our 
partners to increase their capacity to review and assess 
proposed projects.
    In addition, the budget contains sufficient funding to meet 
our commitment to addressing the serious challenge of global 
climate change. In order to advance clean air technologies, the 
President requested $49 million for EPA's diesel retrofit grant 
programs.
    Another challenge is to improve our Nation's aging drinking 
water and waste water infrastructure. The budget requests $842 
million to fund Drinking Water State Revolving Fund grants--an 
increase of $13 million from last year. This will help meet the 
President's commitment to achieve a $1.2 billion revolving 
level by 2018.
    For Clean Water State Revolving Funds, the President 
proposes an investment of $555 million in fiscal year 2009. 
This will enable the program to meet its long-term revolving 
target of $3.4 billion by 2015.
    In addition, we once again, propose to create Water 
Enterprise Bonds, as innovative financing tools for State and 
local partners to cost-effectively provide for resident's water 
needs.


                          water infrastructure


    As we address our water infrastructure, the budget 
continues to support EPA's collaborative work to protect 
America's great water bodies. It provides $35 million for the 
Great Lakes, $29 million for the Chesapeake Bay, and $4.6 
million for the Gulf of Mexico.
    As you know, EPA is not only a guardian of our environment, 
it is a guardian of our homeland. I'm proud of our response to 
Hurricanes Katrina and Rita, and to a number of other natural 
events in recent years.
    However, we recognize the need to expand our capabilities 
to respond to multiple, simultaneous, catastrophic events. So 
this budget requests an extra $32 million, for a total 
investment of $170 million to train staff volunteers, increase 
decontamination capabilities, and fully fund 5 water 
infrastructure security pilots. This additional funding also 
includes a $5 million increase to support our bio-defense 
research.
    In order to keep pace with the environmental challenges of 
tomorrow, we have a responsibility to advance the state of our 
science. In this budget, the President requested $15 million, 
to help EPA study nanotechnology, as well as $15 million for 
computational toxicology.
    At EPA, we're working with our community partners to pass 
down a healthier, more prosperous future. The President's 
budget provides over $1.2 billion for the Superfund Program--to 
continue transforming contaminated, hazardous waste sites back 
into community assets. This is a $10 million increase from 
fiscal year 2008.
    The President also requested $165.8 million for our 
successful Brownfields program. We project the grantees will 
help assess the renovation of 1,000 properties, and create 
leverage for more than 5,000 jobs.
    So, while cooperative initiatives are important, we must 
continue to vigorously enforce our Nation's environmental laws. 
This budget proposes the highest dollar amount for enforcement 
in EPA's history, $563 million, an increase of $9 million over 
fiscal year 2008.
    As EPA works to fulfill our responsibilities to the 
American people, I'm pleased this budget not only continues to 
deliver environmental results today, and keeps EPA on course to 
deliver a cleaner, healthier tomorrow.


                           prepared statement


    Bottom line--this budget represents good government. It 
helps EPA meet our environmental goals, while being responsible 
stewards of taxpayer dollars.
    Thank you, and I request that my full written statement be 
submitted for the record.
    Thank you, Madam Chairman.
    [The statement follows:]
             Prepared Statement of Hon. Stephen L. Johnson
    Madam Chairman and members of the committee, I appreciate the 
opportunity to discuss our proposed fiscal year 2009 Budget request for 
the Environmental Protection Agency (EPA) budget.
    The President requests $7.14 billion for fiscal year 2009 to 
support EPA's mission to protect human health and the environment both 
directly and through EPA's state, local and tribal partners nationwide. 
Since its founding, EPA has laid a strong foundation of environmental 
progress. Our air, water and land are cleaner today than they were just 
a generation ago. This budget continues this progress, supports the 
environmental commitments that the President and I have made and 
institutionalizes EPA's major management and performance improvements.
    In particular, the budget meets the major priorities that I've set 
for my final year of service:
  --Advancing clean, affordable and safe energy,
  --Safeguarding our nation through stronger homeland security,
  --Encouraging stakeholder collaboration to address energy and climate 
        change issues,
  --Improving our water infrastructure and programs,
  --Continuing Superfund remediation of the most highly contaminated 
        hazardous waste sites,
  --Encouraging economic development through revitalization with our 
        successful Brownfields program,
  --Ensuring full compliance with the nation's environmental laws,
  --Building a stronger EPA for my successor--including strengthening 
        our protection of human health and the environment through best 
        available science, and
  --Demonstrating fiscal responsibility for all our successors.
              advancing clean, affordable and safe energy
    We all know that our Nation faces multiple challenges to assure a 
future of clean, affordable and safe energy. With both demand and costs 
on the rise, innovators are moving forward to propose cleaner power 
solutions that are good for our environment and good for our energy 
security. Industry is searching for many new domestic alternatives to 
help reduce our dependence on foreign energy. We estimate that over the 
next several years industry will propose drilling thousands of new oil 
and gas wells on Federal, state, and Tribal lands, apply to renew up to 
100 nuclear plant licenses, consider building dozens of new liquefied 
natural gas terminals, and propose many other projects. This budget 
recognizes that industry's increased efforts will mean a larger 
workload in our existing air and water permitting programs as well as 
our enforcement programs--especially out West.
    This budget includes an additional $14 million to help ensure 
environmentally sound decision-making--with proper permitting and 
review and in full compliance with the law. The $14 million will 
support our state and tribal partners' efforts to increase their 
capacity to review and assess all the proposed energy projects and pay 
for the additional technical experts the Agency needs to meet 
permitting, technical review, and NEPA requirements.
    One related clean energy initiative that I'm glad that we and the 
appropriating committees agreed upon is the Diesel Emission Reduction 
Act (DERA) program grants. In fiscal year 2009, $49 million will fund 
250-300 diesel retrofit grant programs that target older diesel engines 
which are not subject to the new regulations. A combination of 
strategies including engine retrofits, rebuilds or replacements, 
switching to cleaner fuels, and idling reduction strategies can reduce 
particulate matter emissions by 95 percent, smog forming hydrocarbon 
and nitrogen oxide emissions by up to 90 percent and greenhouse gases 
by up to 20 percent. These strategies will allow us to make continued 
progress in five sectors: freight, construction, school buses, 
agriculture and ports.
                           homeland security
    Homeland Security continues to be one of EPA's top priorities. EPA 
has responded to five major disasters and catastrophic incidents in 
recent years, including response actions to the 9/11 terrorist attacks, 
the anthrax terrorist incidents, the Columbia Shuttle disaster and 
recovery efforts, the Ricin incident on Capitol Hill, and the Gulf 
Coast hurricanes. Our experience from these responses, coupled with 
EPA's externally driven mandates such as Homeland Security Presidential 
Directives and Emergency Support Function mission assignments, lead me 
to propose that EPA heighten its preparedness.
    This budget ensures that we can meet these commitments by proposing 
an additional $32 million over last year's enacted budget for a total 
of $170 million to advance the EPA's capabilities to respond to 
multiple incidents, strengthen bio-defense research, and continue to 
support the Water Security Initiative.
    As a part of this request, we remain committed to funding five 
Water Security Initiative pilots to secure a broad range of data so 
water utilities across the country will have the necessary information 
to install and enhance contamination warning systems. With the fiscal 
year 2009 request we will have initiated all five pilots and expect to 
complete them by 2012. EPA is also advancing its preparedness to 
respond to multiple, large-scale, catastrophic incidents, and in 
particular, potential chemical, biological and/or radiological agent 
terror attacks.
                             climate change
    For fiscal year 2009, EPA requests a total of $114.7 million to 
continue to achieve real reductions of carbon dioxide, methane, per 
fluorinated compounds (PFCs) and other greenhouse gases, and continue 
research to better understand climate change and its ramifications.
    EPA will continue to achieve real reductions in greenhouse gases by 
promoting energy efficiency through partnerships with consumers, 
businesses and other organizations. We will continue to see real 
results in the home, building, industrial and transportation sectors by 
spurring our partners' investments in energy efficient and greenhouse 
gas saving technologies, policies and practices. Based on a historical 
analysis, we estimate that for every dollar spent by EPA on its climate 
change programs, greenhouse gas emissions are reduced by up to the 
equivalent of one metric ton of carbon.
    One cornerstone of our partnerships is the ENERGY STAR program, 
which has helped speed new lighting technologies to market, fostered 
development of more energy efficient computers, and increased 
Americans' understanding of how they can help the environment by 
purchasing cleaner and more efficient machines. To give one example, 
ENERGY STAR qualified light bulbs use 75 percent less electricity and 
last up to 10 times longer than traditional bulbs. If every American 
household switched just one traditional bulb to a high-efficiency 
ENERGY STAR bulb, America would save enough power to light more than 
three million homes . . . save $600 million in energy costs . . . and 
prevent greenhouse gas emission equal to more than 800,000 cars 
annually.
    A Washington Post article 2 weeks ago on how pollution can be blown 
to the United States from overseas reminded me that our international 
programs are essential to realizing American ecological goals. If we 
don't help China, India and other developing countries build energy 
efficient technologies into their infrastructure, their increases in 
greenhouse gas emissions will far out-weigh any reduction that we 
achieve here. That is why it remains essential that we move forward 
with the Asia Pacific Partnership, Methane to Markets and other 
international programs.
    In climate change research, EPA will invest $16.4 million to 
continue to better understand climate change and its ramifications. EPA 
will investigate how climate change affects air and water quality to 
protect the gains in public health made by the Agency. We will explore 
opportunities to anticipate the impacts and incorporate climate change 
considerations into regulatory processes. We will use research findings 
to support the development of a proposed rule on the geological 
sequestration of carbon dioxide to ensure that underground sources of 
drinking water are protected. We will continue to reach out to all our 
potential 300 million ``green'' partners by making available free, 
online decision support tools to enable resource managers to 
incorporate climate change considerations into their day-to-day 
operations.
                          cooperative programs
    Our cooperative programs also provide an outstanding example of how 
we can find ``win-win'' solutions that make sense both environmentally 
and economically. They allow us to work with businesses and individuals 
to achieve environmental results while improving the bottom line. They 
allow EPA to start addressing environmental challenges as soon as we 
recognize them and give us the opportunity to test innovative 
approaches to meet today's challenging environmental problems. To date, 
our conservative estimate is that over 20,000 businesses and other 
groups across America have participated in cooperative programs. We are 
proud of the record of success of these programs and want to encourage 
our talented employees to continue to use their creativity in finding 
innovative ways to improve environmental results.
                     working with federal partners
    Cooperation with Federal partners is also crucial for EPA to meet 
its mission. In the fiscal year 2009 budget, I want to highlight our 
efforts to work with Federal partners to better understand the 
environmental impact of the almost $2 trillion worth of imported goods 
coming into the U.S. annually. To meet this challenge, the President 
directed agencies with import/export responsibilities to work together 
to create an International Trade Data System (ITDS) within an expanded 
Automated Commercial Environment (ACE). EPA's $3.1 million investment 
in fiscal year 2009 will help build the linkage with ITDS to identify, 
track and confirm vital environmental details about imported goods in 6 
areas: (1) vehicles and engines, (2) ozone depleting substances, (3) 
fuels, (4) pesticides, (5) toxic substances, and (6) hazardous waste.
    This is not a pie-in-the-sky dream. It builds on a successful pilot 
test by our Office of Enforcement, which showed that accessing useable 
records lead to timely action. One pilot test identified imported 
engines in several planned shipments that did not meet U.S. 
specifications and allowed us to block their entrance. One bad engine 
can make a big difference in emissions of particulate matter. Another 
pilot test proved that even child's play can be harmful to the 
environment. Detailed records highlight many batches of innocent-
looking ``silly-string'' which contained banned chlorofluorocarbons 
(CFCs). These tests make clear that prompt data retrieval translates 
into prompt protection.
    This is also an example of how our long term planning has paid off. 
EPA can efficiently link to ITDS because of the Agency developed a 
Central Data Exchange, a standard set of IT systems and protocols for 
sharing information among multiple partners.
                   water infrastructure and programs
    This President's budget meets our commitments to finance state 
revolving funds, proposes new financing options, continues WaterSense 
and other collaborative water-efficiency projects, strengthens our 
wetlands and watershed protection, and furthers our successful 
geographic initiatives.
    We propose $842 million for Drinking Water State Revolving Fund 
(DWSRF) grants, an increase of $13 million. This funding will help 
achieve the target of 445 additional infrastructure improvement 
projects to public water systems--and help reach a long term target 
$1.2 Billion revolving level. The DWSRF program supports states by 
providing low-interest loans and other assistance to water systems to 
help provide safe, reliable water service on a sustainable basis, 
protect public health and achieve or maintain compliance with the Safe 
Drinking Water Act (SDWA).
    For Clean Water State Revolving Funds (CWSRFs), we propose a fiscal 
year 2009 investment of $555 million to help meet the program's long 
term revolving target of $3.4 Billion. This program is able to meet 
EPA's $6.8 billion total capitalization goal for fiscal years 2004-2011 
with a reduced budget request due to higher than anticipated funding 
levels in previous years. The CWSRF program provides funds to 
capitalize state revolving loan funds that finance infrastructure 
improvements through low interest loans for public wastewater systems 
and other water quality projects.
    The President's fiscal year 2009 budget continues to support the 
Water Enterprise Bond Initiative that proposes financing wastewater and 
drinking water infrastructure projects using Private Activity Bonds 
(PABs) that are exempt from unified state PAB volume caps. We estimate 
this initiative will increase capital investment in the nation's water 
infrastructure by up to $5 billion per year over time through public-
private partnerships. These bonds will complement local efforts to move 
towards full-cost pricing for wastewater and drinking water services, 
help localities become self-financing and minimize the need for future 
Federal expenditures.
    These financing proposals work together with our continuing efforts 
to increase efficiency, protect our wetlands and watersheds, accurately 
monitor the condition of our waters and wetlands and target vital 
geographic areas.
    For example, in June 2006 EPA launched the WaterSense program to 
reduce water use across the country by creating an easy-to-identify 
label for water-efficient products. The WaterSense label certified that 
products had been independently tested to meet strict efficiency and 
performance criteria. In less than two years, WaterSense has become a 
national symbol for water efficiency among utilities, plumbing 
manufacturers, and consumers. More than 125 different models of high-
efficiency toilets and 10 bathroom faucets have earned the label and 
more than 600 manufacturers, retailers, utilities and professionals 
have joined the program as partners. In fiscal year 2009 EPA will 
continue supporting development of new products and working with 
utilities, retailers, distributors, and the media to educate consumers 
on the benefits of switching to water-efficient products.
    EPA's Wetlands Program supports the Administration's goals to 
achieve ``no net loss'' of wetlands in the Sec. 404 regulatory program 
and an overall increase in wetland quantity and quality. Wetlands 
provide numerous ecological and economic services: they help to improve 
water quality; recharge water supplies; reduce flood risks; provide 
fish and wildlife habitat; offer sites for research and education; and 
support valuable fishing and shellfish industries. In fiscal year 2009, 
EPA will work with its state and Tribal partners to promote up-to-date 
wetlands mapping tied with GIS (Geographic Information Systems) 
analysis, strengthen monitoring and assessment programs to report on 
wetlands condition, and improve data to better manage wetlands within a 
watershed context. Two key activities will be implementing the 2006 
Supreme Court decision in the Rapanos case, and working with our 
federal agency partners to accelerate the completion of the digital 
Wetlands Data Layer within the National Spatial Data Infrastructure 
(NSDI).
    Watershed protection runs through our budget and strategic plan as 
one of the overarching principles for clean and healthy communities. 
Our strategic plan, our daily activities and our proposed fiscal year 
2009 budget all reflect the importance of core regulatory and 
stewardship programs prevent water pollution and protect source waters. 
With our partners we launched a Green Infrastructure Strategy on 
January 17, 2008 to reduce sewer overflows and storm-water runoff. We 
also continue to urge Congress to enact targeted, bipartisan clean 
water legislation to encourage ``Good Samaritan'' cleanup of abandoned 
hard rock mines. This simple step will remove legal and bureaucratic 
obstacles, keep environmental safeguards in place, save tax payer 
dollars and help clean up watersheds.
    We continue to place a high priority on improving the states' 
ability to accurately characterize the condition of their waters. In 
fiscal year 2009, we will continue our water quality monitoring 
initiative by providing grant funding totaling over $18.5 million to 
states and tribes that participate in collecting statistically valid 
water monitoring data and implement enhancements in their water 
monitoring programs.
    The fiscal year 2009 budget continues funding for geographic 
initiatives, including:
  --In the Great Lakes, EPA's $35 million investment in the Great Lakes 
        Legacy Act will give priority to working with states and local 
        communities to achieve improvements in water quality and 
        reducing the number of toxic ``Areas of Concern''. ``Areas of 
        Concern'' include areas with damaged fish and wildlife 
        populations, contaminated bottom sediments and past or 
        continuing loadings of toxic and bacterial pollutants.
  --In the Chesapeake Bay, the $29 million investment will be committed 
        to substantially accelerating the restoration of the Bay's 
        aquatic habitat and achieving the pollution reduction targets 
        for 2010.
  --For the Gulf of Mexico, EPA's $4.6 million investment will continue 
        to support efforts to reduce nutrient loadings to watersheds. 
        We will identify the top 100 nutrient-contributing watersheds 
        in the Mississippi River Basin and use a computer model 
        determine the location of major sources of nitrogen and 
        phosphorus and where to target hypoxia- reduction efforts.
   superfund remediation of highly contaminated hazardous waste sites
    The President's budget requests a $10 million increase for a total 
of $1.264 Billion for the Superfund program to continue our progress 
cleaning up contaminated sites and strengthening our emergency 
preparedness and response capabilities. The vital goals of the 
Superfund program remain assuring the health and safety of neighboring 
citizens during cleanups and protecting human health and the 
environment in the long-term. Within this budget request, funding for 
Superfund clean-up remains at essentially the same level as enacted in 
fiscal year 2008.
    EPA takes seriously its responsibility to take actions to protect 
human health by controlling exposure to hazardous substances during 
clean ups. Before or during long-term remedial action, the Superfund 
program often completes removal actions to mitigate immediate health 
threats prior to completing investigations and starting long-term 
cleanup construction. For example, to date, EPA has provided more than 
two million people living near contaminated sites with alternative 
sources of drinking water, has completed more than 9,400 removals at 
hazardous waste sites to reduce the immediate threat to human health 
and the environment, and has conducted 351 emergency response and 
removal cleanup actions in fiscal year 2007 alone.
    Developed more than a decade ago, EPA's construction completion 
measure continues to show substantial progress in the Superfund 
program. As of the end of fiscal year 2007, cleanup construction had 
been completed at 1,030 of the National Priorities List (NPL) sites--66 
percent of the sites listed on the NPL. EPA plans to complete clean up 
construction at 30 sites in fiscal year 2008, and 35 sites in 2009. 
This will keep EPA on track to complete construction at 165 sites 
during the fiscal year 2007 to fiscal year 2011 time period--EPA's goal 
in the current Strategic Plan.
    To better measure long-term progress, the program added a Site-Wide 
Ready for Anticipated Use measure in 2007. This measure tracks the 
number of NPL sites where the remedy is constructed (construction 
complete) and all of the controls are in place to ensure that the land 
is protected for reasonably anticipated uses over the long term. EPA 
expects to make at least 30 sites ready for anticipated use in 2009, 
building upon its 2007 achievement of doubling the original goal of 30 
by making 64 Superfund sites ready for anticipated use.
                  brownfields and land revitalization
    The President's fiscal year 2009 budget request provides $165.8 
million for the Brownfields program, including $93.6 million to fund 
program assessment, cleanup, revolving loan fund, and job training 
grants. This will fund 129 assessment grants, 96 cleanup grants, 7 
revolving loan fund grants, and 12 job training grants. Through this 
work, we project that Brownfields grantees will assess 1,000 
properties, clean up 60 properties, leverage 5,000 cleanup and 
redevelopment jobs, and leverage $900 million in cleanup and 
redevelopment funding.
    Experience has taught us that one of the best ways to clean up 
contaminated sites and to address blighted properties in communities is 
to expressly consider the future uses of this land. The country has 
accepted the economic and ecological importance of recycling various 
consumer products--and our understanding of sound resource management 
must now also embrace the recycling of contaminated properties. In 
addition, by incorporating ``green'' and sustainable approaches into 
Brownfields redevelopment, we can further increase the environmental 
benefits from land revitalization. We remain committed to the goal of 
restoring our nation's contaminated land resources and enabling 
America's communities to safely return these properties to beneficial 
economic, ecological, and societal uses.
                              enforcement
    Experience has also shown that we cannot always rely on 
collaboration to attain all our goals. This budget doesn't neglect that 
lesson. Once again I request the largest enforcement budget in history, 
$563 million--an increase of $9 million--to maintain our vigorous and 
successful enforcement program.
    These dollars will prove to be a wise investment. Last year, EPA's 
enforcement programs succeeded in:
  --Having defendants agree to $10.6 billion in investments to reduce 
        pollution;
  --Achieving private party reimbursements of $252 million for 
        Superfund; and,
  --Reducing water pollution by 178 million pounds and air pollution by 
        427 million pounds.
    This all-time record budget request includes a $2.4 million 
increase to a total budget of $52.2 million for criminal enforcement. 
These dollars are vital to help us increase the number of criminal 
investigators.
                      stronger epa--sound science
    As a 27-year Agency veteran, one of my most solemn duties is to 
leave behind an EPA that is stronger than when I came in. As both a 
scientist and a long time manager--I am convinced that the only way 
that a technical, regulatory agency can meet its mission is by doing a 
lot of hard thinking to ensure that we keep our technical, legal and 
scientific base strong--and that we hone our management goals and 
measures to guide our efforts. This budget builds on the progress we've 
made by strengthening our workforce, sharpening our management and 
performance measurement and increasing our scientific knowledge.
    First, as a scientist, I want to continue to provide strong support 
for research addressing our nation's and our world's critical and 
increasingly complex environmental issues. In fiscal year 2009, I 
propose that EPA invest extra resources to understand two critical, 
growing areas: nanotechnology and computational toxicology.
    For nanotechnology, I ask for an additional $4.5 million, for a 
total budget of $14.9 million to strengthen understanding of health and 
ecological implications arising from new routes of exposure and/or 
toxicities associated with exposure to these novel materials. We must 
identify and develop risk assessment methodologies for use by risk 
assessors, and evaluate the adequacy of current exposure assessment 
approaches. We will coordinate this research closely with the 
President's National Nanotechnology Initiative (NNI), which emphasizes 
the need for the government to understand which processes govern the 
environmental fate of nano-materials and what data are available or are 
needed for accurate nano-material risk assessment. This includes 
determining the release potential of nano-materials in the environment, 
researching the state of science for sampling and measuring nano-
materials in environmental media. We must also study effects on human 
and ecological receptors and determine which technologies and practices 
minimize risk.
    I also remain strongly committed to improving our computational 
toxicology work and ask for a $2.7 million increase--for a total budget 
of $14.9 million for this vital area. In fiscal year 2009, we want to 
improve EPA's ability to more efficiently understand chemicals' 
toxicity through advanced modeling. One aspect of this work that is 
particularly important is that it can reduce the need to use animals 
for toxicity testing.
    To help further these initiatives and ensure EPA's ability to 
attract and retain the highest caliber scientists, the budget proposes 
expanded special authority that will allow EPA to hire up to 40 
scientists quickly and competitively.
                stronger epa--performance and management
    As a manager, I want to make sure that we focus on something we can 
all take pride in--delivering results. And I'm proud to tell you about 
what we've accomplished to date in the planning and management fields. 
EPA:
  --Scored ``green'' in the President's Management Agenda on all 
        initiatives in the first quarter of fiscal year 2008--one of 
        only a few agencies to reach that goal, and
  --Improved outcome measures to more directly link the results of our 
        work and resources to environmental, on-the-ground, results.
    We've addressed specific challenges as well. For the first time in 
ten years we've succeeded in removing grants management as a 
``management challenge'' or ``material weakness''. We've fixed problems 
identified by the Government Accountability Office (GAO) and the Office 
of Inspector General (OIG) and built a system of internal controls 
fully integrated into the grants management process that includes:
  --Improved mandatory training,
  --Heightened grants performance standards,
  --Quarterly management close-out reviews,
  --New post-award monitoring orders, and
  --EPA's new grants management system.
    Finally, as I conclude my tenure at EPA, I want to fulfill my 
responsibility to cultivate the next generation of EPA leaders. This 
budget includes funding for a Leadership and Professional Development 
rotation program to ensure that our talented GS-13, 14 and 15 employees 
can expand knowledge and expertise, develop leadership skills and 
enhance professional growth through short term rotational assignments. 
For more senior leadership, we propose to continue our SES mobility 
program to make sure that we populate the highest levels of the agency 
with proven managers.
                               conclusion
    Madam Chairman, when I look at the candidates who are getting the 
opportunity to broaden their skills in these programs, I am heartened 
that I'll be leaving the agency in good hands. I look forward to 
working with you to enact this budget.
    I am confident that this budget gives them an excellent basis on 
which to build. I hope that together we can see prompt action on these 
budget proposals so that we can implement your funding decisions.
    Thank you. I will be happy to respond to any questions you may 
have.

    Senator Feinstein. Thank you very much, Mr. Johnson. Let us 
begin.

                           CALIFORNIA WAIVER

    The legal justification for denying California's waiver 
rests heavily on your view that in 1967, Congress intended that 
waivers would only be issued if California had a unique 
problem. The waiver decision cites 1967 committee reports and 
floor statements 9 times.
    If the pollutant is global, and therefore exists to a 
similar extent in other States, you conclude that this is 
grounds for a waiver denial.
    Well, in 1977, Congress amended the Clean Air Act, changing 
both the words, and intent, of section 209. The House committee 
report from 1977, explains the section 209 revisions by saying, 
and I quote, ``The committee amendment is intended to ratify 
and strengthen the California waiver provision, and to affirm 
the underlying intent of that provision, i.e., to afford 
California the broadest possible discretion in selecting the 
best means to protect the health of its citizens and the public 
welfare. The Administrator, thus, is not to overturn 
California's judgment lightly. Nor is he to substitute his 
judgment for that of the State. There must be clear and 
compelling evidence that the State acted unreasonably, in 
evaluating the relative risks of various pollutants in light of 
the air quality, topography, photochemistry, and climate in 
that State, before EPA may deny a waiver.''
    Your waiver justification document does not mention 
congressional intent in 1977. Why?
    Mr. Johnson. Well, Madam Chairman, as I evaluated the 
petition from California, as you correctly point out, I am 
bound by section 209 of the Clean Air Act, and there are three 
very specific criteria.
    I did not make judgment on two of the criteria. The one 
that I did was that California does not need such California 
standards to meet compelling and extraordinary conditions. 
Again, based upon the record and the evidence before me.
    Clearly, we looked at legislative history--as you pointed 
out--but again, as I point out, even with affording California 
the broadest possible discretion, evaluation under section 209 
does not mean a rubber stamp. It does not mean that it's a 
popularity contest, it means that I need to thoughtfully and 
carefully think evaluate the data that are before me under 
section 209, and in this case, I determined that California did 
not need its own greenhouse gas standards to meet compelling 
and extraordinary conditions.
    Senator Feinstein. Even though that same section allows 
other States to accept California's standards? I mean, it seems 
to me if Congress intended for waivers to be limited to 
problems unique to California, why did it give other States the 
right to adopt the same standards?
    Mr. Johnson. Well, you raise a very good point, Madam 
Chairman, and in fact the section 209, and the law and the 
criteria by which I am to judge the standard does not allow me 
to consider what other States may or may not do--it's very 
specific to California.

                        GREENHOUSE GAS EMISSIONS

    As I pointed out, and I think it's worth pointing out 
here--that the more States that believe that greenhouse gas 
emissions is a problem, are in fact, making the very point that 
California is not unique--it is not exclusive in its need for 
addressing greenhouse gas emissions.
    Rather, it is a national problem, requiring a national 
solution, and that's certainly what my 48-page decision 
document goes through, very carefully, and addresses.
    Senator Feinstein. Thank you.
    According to the Washington Post, you made the decision to 
deny the waiver over the unanimous recommendation of your legal 
and technical staff. Here's the question. When you went around 
that room full of staff, and asked each person's recommendation 
last October, did a single one of your legal and technical 
staff support a flat denial of the waiver?
    Mr. Johnson. Well, when I met with and had a--literally 
hours of briefings with my technical and legal staff, which 
included career as well as my policy staff, as well, they 
presented me with a wide range of options, ranging from 
approving the waiver, to denying the waiver. They were all 
presented to me as legally defensible option.
    Yes, I did seek their comments, I appreciate the ability to 
have that candid input to me. But, according to the Clean Air 
Act, and certainly I take the responsibility very seriously, 
the decision rests with me, and me alone, and I made the 
decision as is evidenced in our final agency decision document.
    Senator Feinstein. Yeah, let me understand, then. You are 
saying that technical staff, and legal staff, gave you a 
recommendation to deny the waiver, is that correct?
    Mr. Johnson. The technical and legal staff presented me 
with a range of recommendations, which included improving the 
waiver, and included denying the waiver. That, based upon their 
input, based upon my evaluation, thoughtful and careful 
consideration of the record before, and what the requirements 
are under the Clean Air Act under section 209, I determined 
that California did not meet the waiver criteria.
    Senator Feinstein. Did you ask them what they thought? As 
individuals?
    Mr. Johnson. I--generally it is my approach on all agency 
decisions to ask for input, and if people want to give their 
person input, that's fine. If they choose to pass, that's fine. 
But I routinely, at least what I recall--as routinely as for 
all major decisions, seek input.
    Senator Feinstein. Well, I mean, we've been told, 
informally, that none of the staff was for denying California's 
waiver.
    Mr. Johnson. Well, as I said, I received a range of 
options----
    Senator Feinstein. I understand, it's not what I'm asking.
    Mr. Johnson [continuing]. I also, I also----
    Senator Feinstein. I receive a range of options on many 
things--here's the best case this way, here's the best case 
that way--but what do you think? Is my question.
    Mr. Johnson. Well, I----
    Senator Feinstein. Did any of the legal or technical staff 
believe you should deny the waiver? You can say yes, if yes is 
the answer.
    Mr. Johnson. Well, again, I appreciate the ability to have 
candid comments from my staff, and I want to protect that 
ability to, for them to give me candid advice. What I said is, 
is that I received a--not only a wide range of options, clearly 
as both the record indicates, and certainly the press 
indicates--there's a wide range of opinions. It's not--my 
decision is not based upon, again, a popularity contest of the 
opinions. It has to be based--and was based--on what the law 
directs me to do.
    Senator Feinstein. Bottom line, Mr. Johnson, you're not 
answering my question. But there's nothing I can do, other than 
to believe what a non-answer to the question means.

     DETERMINE WHETHER CARBON DIOXIDE CONTRIBUTES TO CLIMATE CHANGE

    Let me go on. You are under remand from the United States 
Supreme Court to determine whether carbon dioxide contributes 
to climate change, and endangers public health and welfare, and 
I would like to know by when you intend to respond. You have 
missed your own deadline of completing this finding by the end 
of 2007. In January, you told the Senate Environment and Public 
Works Committee that EPA's reaction to the Supreme Court's 
remand had been delayed by passage of the Energy Independence 
and Security Act, even though this new law did not amend 
section 202 of the Clean Air Act which governs your decisions 
regarding endangerment.
    We are rapidly approaching the 1-year anniversary of that 
landmark decision. Will you commit that your agency will 
respond to the remand of the highest court in the land, by the 
anniversary of this ruling, which is April 2, 2008?
    Mr. Johnson. Well, Madam Chairman, what I will commit to is 
we will be responding to the Supreme Court decision. As, I 
believe I have indicated--or staff have indicated in 
correspondence with you regarding funding issues for this year, 
is that right now I am in the process and, if you will, to have 
taken a step forward and said, we have, obviously, the Mass v. 
EPA decision that is pending before the agency. We also have 
the implementation of the Energy Independence and Security Act 
and again, congratulations, Madam Chairman and Senator Allard, 
for great work, for--and certainly the President signing that.
    We are looking to, and working on the implementation 
regulations for that. We also have a number of pending 
petitions before the Agency, as well as a number of corridor 
deadlines.
    One of the unique things is----
    Senator Feinstein. Excuse me, my time is--all I'm asking of 
you is when might we expect this, which was due in 2007?
    Mr. Johnson. Well, what I was--as I've communicated with 
you, I don't have a date, but I can assure you we will be 
responding to the Mass v. EPA, and that what I was beginning to 
try to explain is that we have many pending actions before the 
agency, and I'm assessing those before I make a final 
determination as to what the next steps are on all of them--
including Mass v. EPA.
    Senator Feinstein. My time is up.
    Senator.
    Senator Allard. Thank you. As I mentioned in my opening 
remarks, I have some concerns about enforcement from the 
perspective that I hope that EPA's approach to many of the 
infrastructure problems that we have in meeting some of your 
rules and regulations will take more of a helpful approach to 
small communities, because they don't have the staff and the 
expertise--as opposed to just a strict enforcement approach.

                             ARSENIC LEVELS

    We have a couple of issues in Colorado where this is 
brought--one of them is the arsenic levels which was passed by 
the Congress, and you don't have a lot of flexibility in that--
but we do have communities that have--they're small 
communities, so they don't have a large tax base--are faced now 
with the increased arsenic levels of reducing that arsenic 
level in their drinking water.
    Now this is a natural background level, it's been there for 
years, we've tightened it up, and now they have to spend the 
money to improve that water over and beyond what the natural 
background level of arsenic would be. Yet those standards are 
below the public health requirements, but the Congress felt 
necessary to go below that. So that creates a real problem for 
small communities, and I'd like to know what you're doing to 
help them out.
    You have--you just promulgated or are working on a radon 
rule. Again, it's a small community problem, Colorado has a lot 
of uranium in their soil, naturally, the background radiation 
in Colorado is higher than most States, and so radon is around, 
but what they need is help in developing the technology and 
being able to afford this, as opposed to straight enforcement, 
because it's naturally in the background level. There's no 
industry in that water stream, that stream, that's causing the 
problem, it's there naturally.
    So I'd like to have you comment as to what you're doing to 
assist small and rural communities in meeting new regulations, 
instead of just imposing fines.
    Mr. Johnson. Senator, thank you. There are really three 
things that I would like to point out. One is that a request 
for increased funding for the Drinking Water State Revolving 
Loan Fund of $13 million, that will help. Obviously, we think 
other steps will help, whether it is Good Samaritan legislation 
to help with these abandoned mines, or private activity bonds--
all of those will help from a financial standpoint, and 
environmental.
    Second is, we have been investing--and again, thanks for 
your collective support--of new technologies; technologies that 
help, that are particularly focused on small communities, and 
actually I have some statistics, I'd be happy to share with 
you.
    Then the third is what you started out with, is the 
importance of flexibility. We want to make sure, and ensure, 
that small communities are able to meet the new health 
protective standards, but we want to be able to do so in a way 
that recognizes the limitations that may exist at a community, 
small community level--local level--and the need for 
flexibility to achieve those is very important.
    Senator Allard. Now, I have a small community that wants to 
find out about these technologies--how do they go about getting 
that information from the Environmental Protection Agency?
    Mr. Johnson. Well, you've just asked, and we'd be happy to 
respond.
    Senator Allard. Okay, thank you.
    [The information follows:]

    EPA has developed a set of user-friendly multimedia products to 
help small drinking-water utilities meet revised regulations to control 
arsenic. The tools will provide owners and operators with information 
to guide them in making treatment decisions. The anchor product of this 
suite of tools is the Arsenic Virtual Trade Show, a learning portal for 
arsenic-treatment technology. The website features a database of 
vendors, a treatment ``decision tree,'' and tips for evaluating and 
selecting treatment options. Other products on the website include:
    1. A brochure, Evaluating Arsenic Treatment Providers: A Guide for 
Public Water Systems, which includes a checklist of questions that 
owners and operators of small utilities should ask treatment providers.
    2. A CD-ROM disk, Interactive Workshop on Arsenic Removal from 
Drinking Water, features commentary from the nation's top experts. The 
disk is a companion to 11 arsenic-training events EPA held across the 
country during 2005.
    3. A DVD collection of videos, the Arsenic Treatment Technology 
Showcase, which highlights arsenic treatment technologies currently 
being pilot-tested through EPA's Arsenic Treatment Technology 
Demonstration Program.
    The website is located at www.arsenictradeshow.org

    Mr. Johnson. Just to give you--we've been doing 
demonstration projects through our Office of Research and 
Development, that, in fact, are now 37 sites that have 
treatment systems that have been installed. Twenty-seven 
completed projects and systems are now being installed for 
those. We have 14 sites that are under development, we have 15 
different technologies that we've been evaluating, and as a 
result--at least as of the most recent data that I have, which 
is August 2007--about 2,400 of the estimated 4,100 effective 
systems are now meeting the new standard of 10 parts per 
billion.
    So, we want to continue and certainly have our commitment 
to continue to work with your State and all States and local 
communities to see that the health protective standard is met 
in a flexible and appropriate way.
    Senator Allard. I appreciate that last paragraph on your 
comments, I appreciate the willingness to be able to work with 
those small communities.

                           ENERGY DEVELOPMENT

    Let me move on to the energy development--I'm pleased that 
the administration included the additional $14 million for EPA 
to meet the Nation's need for clean and affordable energy 
development and production.
    Can you tell me how the agency intends to use the 
additional $14 million for energy development if the dollars 
are appropriated?
    You know, we have a lot of energy development systems that 
happens at the Department of Energy.
    Mr. Johnson. Yes.
    Senator Allard. So what are you doing that would be 
separate from what they're doing in the Department of Energy, 
or if it is what they're doing, and you're doing similar--what 
effect is that having, an added effect on your efforts?
    Mr. Johnson. Sure, and again, I appreciate the--your 
interest in this, and certainly appreciate the President's 
recognition and support for this additional $14 million.
    There are three offices that will be within EPA, will be 
the principal recipients of these additional monies. In 
addition to monies made available to States and tribes, our 
Office of Air has responsibilities for permanent application 
NEPA reviews, our Office of Water is working on carbon 
sequestration regulations, as we speak, and also has NPDS 
Permit responsibility, and our enforcement Office also has 
responsibilities under the NEPA program, as well.
    So, those are the three areas which are unique. In 
addition, out of that $14 million, I think it's approximately 
$6.3 million has been identified to help support State, local, 
and tribal activities in this area, and the permitting area.
    So, we think it's a well-rounded proposal that helps us at 
EPA, but also will help our partners at the State, local, and 
tribal level.
    Senator Allard. I want to cover the Leadville Mining 
Drainage Tunnel again, that's another issue that I alluded to, 
in my remarks.
    On February 21, in Colorado, I hosted with the staff from 
the EPA's regional aid office, and the Bureau of Reclamation, a 
meeting on the Leadville Mining Drainage Tunnel problem.
    As you well know, this situation had reached untenable 
proportions and required immediate attention, and I'm 
cautiously optimistic about the briefing that I received from 
the folks in the Region 8 office. Can you give me an update on 
how things are progressing since the briefing we received out 
in Colorado?
    Mr. Johnson. Well, yes, sir. Again, thank you for your 
leadership on this very important issue. In fact, on February 
27, EPA began pumping water from the shaft, to help to relieve 
some of the pressure. We've been working on a new well that 
would be in the tunnel. I'm told that we're--that effort is 
underway. I'm also told that by March the 7th we will have a 
more permanent pump in place that will help.
    Again, I appreciate the good comments about Robbie Roberts, 
our Regional Administrator--he's been doing a fantastic job of 
helping to stay on top of it, and certainly you have my 
assurance, to stay on top of it and to do everything that we 
can.
    Senator Allard. Is this going to require a new treatment 
plant, or expansion of that current treatment plant there?
    Mr. Johnson. I'm not aware of, certainly, what I've been 
told that some of the early analysis of the water that's being 
pumped was okay, from an environmental standpoint. But, I think 
we'll, you know, that's something we need to continue to 
monitor and watch.
    Senator Allard. So, they talked about cadmium and zinc and 
those two and, let's see, another product that they thought 
might be elevated, but you didn't pick up any of that in the 
water that you pumped out?
    Mr. Johnson. My understanding, at least in the initial 
sampling we did not, but that's something, we certainly will go 
back and continue to watch.
    Senator Allard. Good. All right, now, I guess, again I hope 
that you would continue to work on a long-term solution, I hope 
we can get a commitment to work on that long-term solution to 
that--the way that water's trapped in there. It probably will 
just be a matter of time before that tunnel is going to break 
open, which was caused by collapse of the tunnel and then so 
we've got about a billion gallons of water backed up in that 
system of tunnels. So, again, I think it's important to work on 
a long-term solution, we have your commitment on that?
    Mr. Johnson. Yes, yes.
    Senator Allard. Okay, thank you.

                            ABANDONED MINES

    Mr. Johnson. Yes. Senator, if I might, just to add one 
other comment that--what we're finding around the United States 
is some number approximating 500,000 abandoned--key word--
abandoned mines. That we have a citizen army of volunteers that 
want to go in and help to clean these up--again, key word, 
abandoned--and they are reluctant, in fact, won't, because of 
liability concerns.
    We see the Good Samaritan as a wonderful legislative fix to 
allow Good Samaritans to go in and help clean up these 
abandoned mines, and certainly would encourage you and the 
members of the Committee to strongly consider Good Samaritan 
legislation, because it makes sense--it make sense for the 
environment, it certainly makes sense for water, water quality 
and also----
    Senator Allard. Those States like Colorado that have a lot 
of abandoned mines, and you're right--abandoned--there's no 
interest in there, nobody--there's no ownership of them, 
they're just a hole in the ground that are causing pollution 
problems, there are people that would like to have those mining 
sites for various reasons, but they won't--most of it--and in 
order for them to use it for whatever reason they want to, they 
have to clean it up.
    You don't have the discharge into the river, which causes 
problems for wildlife and quality of the water. I think it's 
kind of a common sense piece of legislation, and I'm hoping the 
Congress will see that--it's no loophole for any kind of 
solution, and I'm glad to hear you agree with that, it's a 
common sense solution, where we can get a volunteer group out 
there, working in cleaning up the pollution from these old 
abandoned mines.
    So, I appreciate your comments in this regard.
    Mr. Johnson. Thank you.
    Senator Allard. Thank you, Madam Chairman, I see my time's 
expired.
    Senator Feinstein. Thank you very much, Senator.
    We are joined by Senator Leahy--it's great to have you 
here, Senator, we're on 10-minute rounds.
    Senator Leahy. Thank you.
    Senator Feinstein. At the present time, so I'll recognize 
you.
    Senator Leahy. Thank you. Appreciate it, and I appreciate 
your holding this hearing. I think it's very important, 
certainly the questions you've raised on California's efforts--
a very commendable efforts--to protect the environment are 
significant.

                           MERCURY POLLUTION

    I'm going to just divert just a moment, Administrator, from 
the budget proposal, I want to talk about an issue that's 
extremely important, also, in my State, and I've been working 
on it for years, for decades, actually, and that's mercury 
pollution.
    Your agency had the Clean Air--what you called the Clean 
Air Mercury Rule to regulate mercury admissions from power 
plants, it turned out that part of it was just written by the 
lobbyists from same power plants--somehow the fox got in the 
chicken, came to mind.
    I said at the time that I thought it was wrong, I raised 
that question with you that it was wrong, urged that there be a 
change, and on February 8 this year the U.S. Court of Appeals 
for the D.C. Circuit--a very conservative, Republican-oriented 
court--agreed with my position, they struck down EPA's Mercury 
Rule as insufficient to protect public health. I think if your 
agency had been willing to listen to some us on the Hill, it 
could have saved taxpayers an awful lot of legal fees.
    Now, there are cost-effective technologies today that can 
dramatically reduce mercury emissions from power plants, far 
beyond what your administration has proposed. So, I'm asking, 
does EPA, under your leadership now, plan to abide by the Clean 
Air Act, will it abide by what the Court said, will it issue a 
mercury regulation that will follow the law, will protect human 
health, and the environment from this harmful neurotoxin?
    Mr. Johnson. Well, Senator----
    Senator Leahy. Are you going to follow the law, in other 
words?
    Mr. Johnson. Thank you for the question. Yes, and I always 
follow the law, sir.
    In the case of the mercury decision, we--both EPA and 
Department of Justice are currently evaluating the decision you 
refer to. We haven't decided what our next steps are. Having 
said that----
    Senator Leahy. An easy one--an easy one would be simply to 
follow the law as the decision said.
    Mr. Johnson. Having said that, that we--we also recognize 
that because of the--another rule that I put in place, the 
Clean Air Interstate Rule, which controls SOX and 
NOX emissions, upwards to 70 percent, also have 
early reductions of mercury--which we certainly think that 
that's a good thing.
    However, saying that--we are disappointed, in face this is 
the first regulation of mercury from coal-fired power plants in 
the Nation's history that would have achieved a 70 percent 
reduction.
    Senator Leahy. Well, I think----
    Mr. Johnson. The Court decision did not get into the merits 
of cap-and-trade or using section 111 as the vehicle. It was 
focused on the delisting.
    Senator Leahy. Well, the Court----
    Mr. Johnson. Regardless, we're evaluating that now.
    Senator Leahy. You'll have to issue new regulations now, 
based on that Court--the Congressional Review Act will come in 
place, if they're not strong enough, but I'm also thinking the 
Court based their actions on what they heard from the 
arguments. During that hearing the EPA represented to the Court 
that States could adopt more protective mercury provisions, 
should they wish, and EPA would not disapprove of those plans 
solely on the basis that the States opted out. Made it clear 
that they're not going to threaten the States.
    But then, the Associated Press now reports that EPA 
officials had threatened States with disapproval for adopting 
more protective mercury control programs, or the Department, 
EPA's approach that they use a more protective way. They said 
it's not their job to pressure States, that's what they said in 
court, but it appears that they had. Now, I'll ask that--not 
only is it appropriated, but wearing another hat as chairman of 
the Senate of the Judiciary Committee, if there is a 
misrepresentation by the government to the Federal Courts in 
this area, that becomes a fairly serious matter, as you can 
well imagine. Has anyone with the EPA ever pressured any State 
against instituting more restrictive mercury regulations 
because they conflicted with the agency's mercury rule?
    Mr. Johnson. I'm unfamiliar with the Associated Press 
report, and I don't have any firsthand knowledge of what you 
speak, but----
    Senator Leahy. No, I'm asking you a very specific question, 
has anyone at the EPA ever pressured any State against 
instituting more restrictive mercury regulations?
    Mr. Johnson. As I said----
    Senator Leahy. Because they conflicted with your rule?
    Mr. Johnson [continuing]. I don't recall having any 
firsthand knowledge of that. What I was going to say----
    Senator Leahy. I'm not asking you if you have any 
firsthand--do you know whether they have, yes or no?
    Mr. Johnson. I don't know that they have, no. I don't know.
    Senator Leahy. Okay, well then let me ask for the record, 
will you go back and check. Remember it's very--you're in a 
congressional hearing, will you tell me whether EPA has ever 
pressured any State against instituting more restrictive 
mercury regulations because it conflicted with what we now see 
by the Court ruling, was a flawed mercury rule from your 
agency?
    Mr. Johnson. I'd be happy to respond, for the record.
    [The information follows:]
                         State Mercury Programs
    EPA did not pressure any State to not institute mercury regulations 
because they restricted mercury emissions more than the agency's 
mercury rule.
    The environmental stringency of a State program was never an issue 
for us as long as the State was at least as stringent as CAMR. If a 
State chose to participate in the multi-state CAMR trading program, its 
program was required to be consistent with certain core requirements in 
the rules promulgated in 2005 that did not prevent them from being more 
stringent. These core requirements were included in the rules to ensure 
that the trading program would work correctly.
    Unfortunately, that has apparently been misinterpreted by some--as 
reflected in the AP story--as an EPA effort to discourage States from 
providing stronger, more protective programs, as they are entitled to 
under the Clean Air Act. That was never our intent, and I believe the 
record of our review of state programs bears that out.
    States were permitted to be more stringent than the Federal 
requirements. States could, and some did, seek greater emission 
reductions than CAMR required and were in the process of approving 
those plans.
    EPA offered States considerable program flexibility to meet their 
assigned mercury budgets. In addition to the option of joining the 
multi-state emissions trading program that we offered to run, states 
could have source-specific control requirements, have intrastate 
trading, combine trading with source-specific controls, or go from 
trading to source-specific controls over time.
    If a state did not adopt EPA's multi-state trading program, EPA 
evaluated the State's plan to ensure it was at least as stringent as 
EPA's trading program. This evaluation included determining whether the 
mercury emissions from all of the state's EGUs would remain at or below 
the annual state emissions cap each year, and ensuring that these 
emissions would be measured and reported using specific rigorous 
protocols. Based on this type of evaluation, EPA proposed approval of 
Pennsylvania's stringent source-specific control program and was 
working towards approval of source-specific controls in final state 
plans in seven additional States.
    If a state chose to participate in the multi-state trading program, 
there were certain core provisions that we required that they adopt. 
These core requirements were intended to ensure the program was 
environmentally- and cost-effective. For example, allowances had to be 
allocated and available sufficiently ahead of compliance deadlines, and 
had to be freely transferable, so that companies could use allowance 
trading where it would be cost-effective and would result in compliance 
with the emissions cap.
    EPA had issued final approval of trading programs for Louisiana, 
Iowa, and Missouri and proposed approval of the Kansas trading program. 
EPA was working toward approving trading programs for 18 more States, 8 
of which had either added source-specific control requirements or had 
tightened the emissions cap by not distributing all the state's 
allowances. This latter group of 8 State programs was more stringent 
than CAMR would have been. At the time of the court decision, 36 States 
had adopted rules and 2 others were in the rule development process.
    Sixteen of these State plans were more stringent than CAMR and we 
were in the process of approving them when the court decision was 
issued.

    Mr. Johnson. I was going to point out that you raise 
another important issue, in our evaluation, is given the recent 
court decision, not only what are our next steps as an agency 
working with the Department of Justice, but then, what does 
that mean with respect to State programs? That's another 
important question that I don't know the answer today, but 
certainly, we're working on.
    Senator Leahy. Okay, well, I appreciate that, and I would 
like to know the answer, because if the Associated Press is 
correct, then the EPA gave misleading information to the 
courts, which would be an extremely serious matter, the courts 
would consider it extremely serious, the Judiciary Committee 
would consider it a very, very serious matter. I'm sure that 
the lawyers doing it would value their licenses, probably 
consider it serious.
    Now, you also adopted the Mercury Trading Rule in 2005, and 
you committed to--you, EPA--committed to remedying mercury hot 
spots. There's a 2006 peer-reviewed study co-authored by EPA 
scientists who found that coal combustion was the dominant 
contributor to mercury deposition, in an enhanced monitoring 
site in Steubenville, Ohio. Then a meteorological analysis 
found that a majority of the mercury deposition found at the 
site was due to local and regional sources.
    In the 2007 peer-reviewed study documented biological 
mercury hot spots in fish and wildlife, in the Northeastern 
United States, in the area I'm from, and I live in. Do you have 
a plan to address these, and other documented hot spots?
    Mr. Johnson. Well, again, that's another important question 
that has come up as, post the publication of our final rule. Of 
course, we haven't decided what we're doing with the final 
rule, at this point, given the court decision. Obviously 
there's science--which we certainly support--continues to 
evolve and get a better understanding.
    Certainly, at that time it was our belief that given the 
way the cap-and-trade program would work for mercury that it 
was likely that those--if there were potential hot spots, that 
they would be the first ones that would be addressed, just by 
the nature of how companies sign up to cap-and-trade, but 
that's certainly an important question as the science has 
continued to evolve.
    Senator Leahy. But, if you know of hot spots now, do you 
have a plan to take the known hot spots and address them?
    Mr. Johnson. Well, again, that's part of our--what are our 
next steps, given the court decision, we haven't decided yet.
    Senator Leahy. Will you let us know when you decide?
    Mr. Johnson. Yes, sir. We will be happy to.
    Senator Leahy. The court matter, I would like a detailed 
response on that, because if the court wasn't misled, it's one 
thing. If they were misled--and I'm asking you the question 
because I don't know, if they were misled as the story appears, 
then I think we'd all agree that we have a very, very serious 
matter. But I'd be happy to hear your response.
    Mr. Johnson. Thank you.
    Senator Leahy. Thank you.
    Thank you, Madam Chair.
    Senator Feinstein. Thank you very much, Senator and we're 
joined by Senator Craig.
    We are in 10-minute rounds, Senator, so----
    Senator Craig. Thank you.
    Senator Feinstein. Please proceed.
    Senator Craig. Thank you, Madam Chairman, and Administrator 
Johnson, it's good to see you again. Serving at EPW, we get two 
bites at you----
    Mr. Johnson. So to speak.
    Senator Craig. So to speak. So today I won't chew quite as 
hard.

           NEW STANDARDS FOR LARGE ANIMAL CONFINED OPERATIONS

    But I do want to come back to an issue that I discussed 
with you at EPW as it relates to your new standards for large 
animal confined operations, and what you plan to do as it 
relates to change. I know--I sense there are steps in the right 
direction, however, I believe some media reports might have 
misconstrued the rule, particularly in making references to 
changes in the Clean Air Act requirements.
    Can you clarify the scope of the regulations and perhaps 
correct the record so, as to what will be continued to be 
required of these animal operations, versus what no longer will 
be required?
    Mr. Johnson. Well, it a very important issue, or the KFOE 
issue, as it's known.
    Senator Craig. Yes.
    Mr. Johnson. We are working to finalize regulations that 
will move forward. Our intent is we--as I think you're well 
aware--next year we do have compliance dates that are in place.
    Senator Craig. Right.
    Mr. Johnson. So, we want to keep those compliance dates in 
place while we work to finalize the regulations.
    In addition to that, I think as you're well aware, and 
certainly appreciate everyone's support of, the National 
Academy of Sciences' recommendation, and that was to conduct 
the first-ever nationwide study of air emissions, particularly 
from poultry and dairy and swine, from the animal feeding 
operations. It's a 2-year monitoring study I believe last year 
was the first year that the actual monitoring began.
    So, as we get that information and certainly as we move to 
look at the final regulations, and we move to ensuring 
compliance, all of this will help better inform our approach on 
this important issue.
    Senator Craig. Well, timeliness is going to be very 
important here, I think the industry is anxious to move toward 
compliance, and the flexibility to get there is going to be 
important, I think, as we get there. So, your urgency on this 
is appreciated.

                        BLUEGRASS FIELD-BURNING

    Let me become very regional or parochial at this moment, if 
I can. A very big industry in my State is bluegrass seed. And 
one of the only ways to get rid of the stubble and to stimulate 
next year's crop into a level of production that's profitable 
are to burn the fields. Field-burning, of course, has become a 
very difficult issue for Idaho, in an area that is not only the 
largest bluegrass seed raising area in the Nation, it is also a 
beautiful recreation destination location.
    Now, after lengthy processes and lengthy issues, we've come 
to an agreement, between EPA Region 10 and the State of Idaho, 
the State legislature is now moving to implement the necessary 
policy language--it's going to be extremely helpful for Region 
10 to expedite the evaluation and the approval of the newly 
negotiated State Implementation Plan so that the burning in 
some areas under this Plan can resume.
    It is just a big chunk of a very important economy, at the 
same time, it is controversial, there's balance been struck, so 
I guess that's not a question as much as it is a flag going up. 
All things are moving in the right direction, at the moment to 
most everyone's satisfaction, including your office in Seattle, 
and in Region 10. So, timeliness, again, there--once the State 
has acted--is going to be important.
    Mr. Johnson. Well, again, thank you. It's an issue that I 
am aware of and I know that we have had a very cooperative and 
collaborative working relationship with State officials to be 
able to make sure that air quality is being maintained at the 
same time, recognizing the use of field burning to be able to 
produce high-quality bluegrass seed. I will be happy to get 
back to you for the record as to what our, what we believe are 
the next steps, and a sense of the timing for that. Again, 
understand the importance of the issue.
    [The information follows:]
                         Bluegrass Seed Burning
    EPA is expecting to receive new regulations from Idaho allowing 
burning within the next several months. We are working closely with the 
State of Idaho to coordinate the schedule for processing the State's 
regulations, taking every opportunity to expedite the process. 
Specifically we are dedicating extra resources to work with the State 
upfront during its development of its regulations and for expedited 
processing once the regulations are received. Once the regulations are 
submitted, EPA will process them under the Federal Clean Air Act, which 
requires a 30-day public comment period and EPA to respond to all 
comments before it takes final action. The time it takes to finish the 
process will depend in part on the level of public interest.

             DECREASE OF CLEAN WATER STATE REVOLVING FUNDS

    Senator Craig. Okay, thank you very much. Last question, 
Madam Chairman, I didn't get a chance to ask it, although it 
was discussed and I understand that Senator Allard had 
mentioned it in his comments--what was your reason behind the 
decrease of the Clean Water State Revolving Funds by such a 
large amount? They have been so critical to States like mine 
and others--Colorado and California, I think, has similar 
problems?
    Mr. Johnson. Well, first, we recognize that there is a 
significant need. In fact, Madam Chairman, you spoke of $20 
billion, in fact our clean water survey actually showed $202 
billion, is my recollection. So, there's no doubt a large need.
    What the President has done is said, ``Look, we recognize 
there's a large need. Here is the commitment, and the 
commitment for the Clean Water State Revolving Loan Fund was to 
achieve a revolving level of $3.5 billion.'' So the budget 
reflects that commitment, in fact, it does reflect that we did 
receive higher-than-anticipated levels in enacted prior year 
budgets.
    It's, again, here's the target, what the commitment is--and 
again, it's $3.5 billion. But at the same time, we recognize 
both for clean water, as well as for drinking water, the needs 
are large. They are in the, literally, hundreds of billions of 
dollars.
    So, that's why, yes, SRF plays an important role, but all 
steps that we can take--whether it's private activity bonds, 
whether it's helping clean up abandoned mines, whether it is 
other steps that we can take, like we're doing with our Water 
Sense program, helping consumers to make better choices, such 
as we have for Energy Star on the energy side--all of those add 
up, and of course as a rate-payer, rate-payers also have a 
responsibility, as well.
    Senator Craig. Understanding all of that--how lenient will 
you be? When there's a good effort on the part of a location to 
respond and comply, but it's obviously--you said there's a need 
but here's all we can do, here's what we will sustain, when 
maybe it ought to be over here. Because it is a Federal 
mandate, where in almost every instance compliance is being 
struggled with and there are other costs involved--when there's 
reasonable due diligence on the part of the locale, depending 
which the issue--how's the lenience going to fit into that if 
the government says, ``This is all we can do, get in line, it 
may be 5, 10 years before you get there.''
    Mr. Johnson. Well, we want all of the communities to be 
able to meet the health protective standard of whatever the 
contaminant might be--arsenic or radio nucleides or whatever it 
might be. But we also recognize that we have to be flexible in 
achieving that. An unintended consequence would be if there's a 
small community water system that is working to achieve that, 
if it's forced so quickly--to quickly--and the community water 
system is shut down, people still need water, and they dig 
wells, and then the water quality hasn't changed.
    So, we recognize that we need to one, do everything that we 
can to help communities achieve the health protectiveness, but 
do so in a reasonable and flexible way. That's what we have 
been working on, and that's what we will continue to work on.
    Senator Feinstein. Thank you very much.

                           CALIFORNIA WAIVER

    Let me see a couple of things on the California waiver. 
We've--my staff has reviewed all of the documents and I believe 
very clearly that your legal staff and your technical staff 
were in favor of a waiver, unless you tell me that is not the 
case, that is what we have found.
    My question is--did anyone outside of EPA, part of this 
government, weigh in with you against the waiver?
    Mr. Johnson. Well, Madam Chairman----
    Senator Feinstein. The answer to that is yes, or no.
    Mr. Johnson. I received many opinions, the point is, is 
that under the Clean Air Act it was my decision, my decision 
alone, nobody directed me to make the decision I made, I made 
the decision, on my own, and the record will indicate that, 
does indicate that and it's the right decision. I know you 
disagree, and I know that there are others that would 
disagree----
    Senator Feinstein. Did you discuss it with the White House?
    Mr. Johnson. As I have said in previous testimonies, yes, I 
discuss major issues with the White House, I think that's good 
government, I discuss it with my colleagues across the 
administration. But, again, the decision, the final decision, 
rests with me, and I made the decision--mine, mine alone--and I 
recognize that people disagree with it, as I've said earlier, 
the 48 pages goes into great detail as to how I came to the 
decision I did, on the scientific basis, as well as what the 
legal rationale is for making that.
    Senator Feinstein. Well, candidly, I read the 48 pages, and 
I find them not at all impressive. But, that's your view. I 
obviously very much regret it. I think it is harmful--not only 
to our State, but to our country. I think the recalcitrance 
with respect to global warming is harmful to the people's 
health of this country.
    I'd like to go back to the remand. You have not given me a 
firm date, I have asked in writing, I'd like to enter those 
records into the--those letters into the record.
    I'd also like to enter a letter to Mr. Bookbinder of the 
Sierra Club, in which you again say you do not have a specific 
time, and I'd like to read you the Supreme Court decision on 
this subject.
    ``Under the clear terms of the Clean Air Act, EPA can avoid 
taking further action only if it determines that greenhouse 
gases do not contribute to climate change, or if it provides 
some reasonable explanation, as to why it cannot or will not 
exercise its discretion to determine whether they do.
    ``To the extent that this constrains agency discretion to 
pursue other priorities of the administration, or the 
President, this is the Congressional design.''
    So, as I read this--and I believe as your lawyers will 
probably tell you--this is the decision of the Supreme Court. I 
don't understand--you've got 4 people working on this, you've 
had one thing or another as to why you can't do it. The only 
conclusion that I can draw, is that you are under pressure not 
to do it.
    Mr. Johnson. Well, I'd like to----
    Senator Feinstein. I find this unbelievable, on behalf of 
what is called an Environmental Protection Agency, not an 
Administration Protection Agency, but an Environmental 
Protection Agency.
    Mr. Johnson. Well, I respectfully----
    Senator Feinstein. There's a finding of the United States 
Supreme Court telling you to do something.

                             CLEAN AIR ACT

    Mr. Johnson. Well, Madam Chairman, I respectfully disagree 
that this is an easy decision. In fact, when the Supreme 
Court--and if you refer back to, I think, Justice Scalia, 
actually set it us as, in essence, a three-part test for me, 
and this would be my brief summary. That is, if the Agency 
finds--if I find that there's endangerment, then under the 
Clean Air Act I must regulate. If I find that there is not, 
that's test one. If I find that there is not endangerment then 
I should not regulate. Or third, if there are other 
circumstances, including--and then goes through some 
description of that.
    What I have found is I have looked at and continue to 
evaluate the issue of endangerment. It's that it's not only 
just the science of, and the endangerment, but it's also--what 
is the potential impact of that decision?
    The way that the Clean Air Act operates, is that a decision 
in the area of mobile sources, could have a significant impact 
on what happens in stationary sources. That is all part of the 
reason why I'm taking time, I think appropriate--I know people 
are anxious for me to get on with business, but I believe that 
it's important--this is an issue that's been debated since 
1978. It's clearly--as I said, climate change is a serious 
issue, and it's one that I'm carefully considering. Mass v. 
EPA, the issue of endangerment, but also we have a number of 
pending petitions before the Agency, including airlines, 
including off-roads, including marine, including stationary 
sources, including NSPS, including PSD, and I can go on and on.
    I have a responsibility----
    Senator Feinstein. Let me ask you this. All right, let me 
ask you this question--how many personnel, right now, are 
working on the endangerment finding.
    Mr. Johnson. I don't know how many people, specifically, at 
this time, how many people are or are not working on specific 
pieces of our work.
    Senator Feinstein. Well, we've been told no one is working 
on it, currently.
    Mr. Johnson. Well, I would have to check with----
    Senator Feinstein. Well, if you would ask your staff, I 
would appreciate knowing what the answer is.

                        RENEWABLE FUEL STANDARD

    Mr. Johnson. Well, I know that we are focusing our 
attention on the moment on several parts. One is, working on 
the regulation to implement what the Congress and the President 
signed on the Energy Independence and Security Act, the 
renewable fuel standard. Working with----
    Senator Feinstein. Is anyone working on this, at the 
present time, Mr. Johnson? This isn't a question I shouldn't 
answer, this is a question to which I'm entitled to know the 
answer.
    Mr. Johnson. Well, we are--I know I am working on what are 
the next steps, what's the framework that I should be 
evaluating the endangerment issue, as well as, as has been the 
traditional practice, of endangerment, and what the regulatory 
approach would be, and that's what I'm currently evaluating.
    Senator Feinstein. How many members of your staff are 
currently working on this?
    Mr. Johnson. I don't know the answer to that.
    Senator Feinstein. Does anybody know the answer? You have 
numerous staff in this room, somebody must--this is a Supreme 
Court finding--you quote the dissenter, not the majority 
opinion.
    Mr. Johnson. As I said, we are evaluating--I am currently 
evaluating what are the next steps that the agency should take, 
in response to the Supreme Court, in response to the Energy 
Independence and Security Act, in response to the myriad of 
petitions that are pending before the agency. That 
responsibility rests with me, and as I make the decision as to 
what the next steps are, then we will be deploying staff--as I 
said, I know I have staff that are working on a myriad of 
issues, from renewable fuel standard to carbon sequestration 
and injection under the UIC program. I know we have people who 
are working on the major economies, I know that we have people 
that are reviewing McCain-Lieberman legislation, the scientific 
piece of that--we have a lot of activities, important 
activities, not the least of which, you mentioned, the 
greenhouse gas registry that we're working on, as well. So, we 
have a lot of activities that our staff are working on.

                              STONEWALLING

    Senator Feinstein. Well, the answer that I deduce from your 
answer is that you have no one currently working on it. I want 
the record to reflect that, unless some--and I give you every 
opportunity to change that, to give me a number. If you can't 
give me a number, on something that is a Supreme Court finding, 
and that has asked you to respond, then I've got to believe 
you're stonewalling. I want the record to reflect that.
    Mr. Johnson. Madam Chairman, I am not stonewalling, I've 
shared with you very openly and candidly of the importance of 
the issue of endangerment, not only in the mobile source 
context, but in the context of the Clean Air Act, and that we 
are--since the Energy Independence and Security Act which 
again, complement--it's been 32 years since the CAFE standard 
has been changed--that's significant and very important. But 
we're looking at--I am looking at--all of these, and then 
determining what our best steps should be in deploying our 2008 
resources. That's what I'm working on.
    Senator Feinstein. Okay.

                           EMISSION REDUCTION

    I think, let me ask this--at my request, Congress included 
$9.8 million in funding last year for emission reduction 
projects for the San Joaquin Valley, and the South Coast air 
management districts. These districts face an almost-impossible 
task of meeting Federal air quality standards for particulate 
matter and ozone, including requirements to be in attainment 
for particulate matter by no later than 2015. They are not 
going to be able to meet that standard, which triggers some 
very complicated and special things which can have disastrous 
economic impacts on both of these districts.
    Last year at this hearing, you gave me your commitment that 
you would work with me to come up with solutions to help these 
districts, and yet, your budget now eliminates this funding to 
help these regions improve their air quality. Why was it not a 
priority for EPA to continue this funding?
    Mr. Johnson. Well, Madam Chairman, as has been routinely 
the case, certainly my 27 years at EPA is that the President's 
budget does not carry over congressionally-directed funding, 
the so-called earmarks, from year to year----
    Senator Feinstein. Yes, this is an earmark, I admit it, and 
I put it in.
    Mr. Johnson. This was, and this is the reason.
    Now, having said that--having said that, we recognize, and 
certainly the President recognized the importance of dealing 
with diesel emissions, and that's why the President is asking 
for $49 million.
    Further, we believe that it's very important for us to 
focus attention on the ports, and as you know, because I've had 
the great pleasure of visiting the Port of Los Angeles area and 
the need for helping, particularly in the ports.
    So, we have identified $15 million of the $49 million, to 
focus on ports, and help in this area.

                          EARMARKS ELIMINATED

    Senator Feinstein. So, you are saying to me that because 
this was an earmark, you've taken it out, and you're not going 
to do it. Have you taken every earmark out of this budget? 
Because you'll be sure--you can be sure of one thing, that I'm 
going to find that out.
    Mr. Johnson. I am told by our budget staff, the answer is 
yes.
    Senator Feinstein. So, any congressional add, is 
essentially eliminated from your budget.
    Mr. Johnson. Every earmark has been eliminated.
    Senator Feinstein. That's a congressional add. That's the 
only way we can add.
    Okay, that should be very interesting. Well, let me give 
you another one--$8 million in the fiscal year 2008 omnibus to 
accelerate cleanup activities at the Hunter's Point Naval 
Shipyard. EPA must continue to work with the Navy to ensure and 
do everything in its power to ensure that this site is cleaned 
up. Have those funds been transferred to the Navy yet, so they 
can be used promptly?
    Mr. Johnson. Well, Madam Chairman, I know we have been 
working very diligently with the city of San Francisco and the 
Navy in establishing both a timetable, as well as a cleanup 
strategy of construction of either a football stadium, or 
commercial and/or residential use. The $8 million, I'm told, 
will be transferred from EPA to the Navy very soon, and I'd be 
happy to keep you posted on that.
    Senator Feinstein. I would appreciate it.
    Thank you very much, my time is up.
    [The information follows:]

    The agency is currently engaged in the apportionment approval 
process for the $8.0 million in funding for the Hunters Point Naval 
Shipyard site along with other agency funding. There were several legal 
and technical issues to resolve regarding this new account, and we are 
working to finalize the apportionment in order to transfer the funds to 
the Navy as soon as possible.

    Senator Feinstein. Senator Allard.

                         CLEAN AIR MERCURY RULE

    Senator Allard. Mr. Chairman, I just have three more 
questions and they have been--those issues have been asked to a 
certain degree, I want to follow up on those three areas a 
little bit more and then I will wrap up what questions I have 
for the Administrator.
    It's been a year now since Colorado submitted a program 
which meets EPA's Clean Air Mercury Rule, and provides--in our 
view--a cost-effective mercury reduction for coal-fired 
powerplants, and you approved that.
    So, then the court has overturned that. So, where does that 
put States like Colorado's proposal? That wasn't clear, and 
Senator Leahy was focusing more on the legal argument, we're 
focusing more on the practical aspect--so where do we stand? Do 
we--does that rule for the State continue to stand until you 
come out with a new one, or do we have to consider--we'll be 
in--will we be in a position where we have to re-do that rule?
    Mr. Johnson. Well, you're asking the very question we're 
asking ourselves. Given the court's decision, what does this 
mean for the State programs? Either ones that have been 
approved, or ones that are pending. I don't know the answer to 
that, and that's certainly part of the conversation that we're 
having, is in light of the Court's decision, what should be our 
next step? As I've already mentioned, that EPA and Department 
of Justice are looking at that to determine what our next steps 
are, and then that may or may not impact where States are.
    So, it's an important question we're looking at, and 
obviously the clock continues to tick, and we will--we are 
expeditiously looking at that, and I hope to have a response, 
soon.
    Senator Allard. These mercury levels do become kind of an 
industry issue, between soft coal and hard coals--perhaps 
you're aware. I know, States like Colorado, we have hard coal, 
and we market a lot of our hard coal to the East, because they 
burn soft coal and there's a lot of discharge, and so we clean 
up the air by burning our coal, and then if you have a mercury 
requirement on that--how does that impact those cities that 
have to require, on the hard coal, to meet the Clean Air 
standards?
    Mr. Johnson. Well, again, we think that mercury is a 
problem, we are disappointed in the court's decision, because 
it's the first time in the Nation's history that we've 
regulated mercury from coal-fired power plants, and our program 
was designed to eliminate 70 percent. So, we believe that it's 
a neurotoxin, we need to deal with it. Again, our next steps, 
we're not sure.
    I did want to point out, I did have the opportunity, 
because mercury is not just from coal-fired powerplants, but if 
you own an automobile that was before the vintage of about 
2003--not every one, but many--had little mercury switches, 
about the size of a pencil eraser. Working with industry and 
the environmental community and others--put together a program 
to actually collect these.
    Senator Allard. I remember that.
    Mr. Johnson. I had the opportunity last week to pull the 
millionth switch from an automobile. Doesn't sound like much, 
but just the switches alone in all of these old automobiles 
account for about 75 tons of mercury that would have otherwise 
gotten into the environment.
    Senator Allard. Well, we under----
    Mr. Johnson. So, we take our responsibilities very 
seriously, and whether it is dealing with the air issue or 
mercury switches, we need to continue to eliminate these.
    Senator Allard. I don't think anybody's arguing with you on 
the toxicity of mercury. You know, we've pretty well 
established that.
    Mr. Johnson. I trust not.
    Senator Allard. You don't see mercury thermometers anymore.
    I just, my question was, you know, it does have an economic 
impact on some of those communities that have to use hard coal 
to burn their soft coal. Is mercury a problem to those 
communities that have to use that coal for, to reduce air 
pollution?
    Mr. Johnson. We believe, and certainly in our final 
regulation, believe that a cap-and-trade program was the most 
efficient way of eliminating mercury, and that our experience 
indicated that those communities that may have had more of a 
problem were ones likely--that those industries would have 
adopted the newest technology to help with that.
    Again, we're now evaluating this court decision, and 
deciding what's our next step.

                       DIESEL EMISSIONS REDUCTION

    Senator Allard. Now, again, this is another program that 
was mentioned--it's your Diesel Emissions Reduction Grant 
Program. You clarified that $15 million of the $49 million 
requested for DERA has been set aside for EPA's Sustainable 
Ports Initiative. I'd like to have you explain in more detail 
how this $15 million is going to be used, that was appropriated 
for a new initiative?
    Mr. Johnson. In the 2009 budget, what our plan is, is to 
actually run a competitive program among the ports, and that is 
obviously, will be designed once we are sure that we have those 
appropriated funds.
    But, we recognize that diesel emissions are a challenge and 
one that is a great opportunity for improving the environment. 
One of the statistics is to bulldozers, which I think--
certainly I have grandchildren, and they--grandsons--that 
understand a bulldozer--but to retrofit 100 bulldozers--just 
retrofitting 100 bulldozers, eliminates 16 tons of pollution 
every year.
    Senator Allard. That's particulate matter, because usually 
diesel, because the----
    Mr. Johnson. It's that black puff of smoke that we're all 
very familiar with.
    Senator Allard. It's the visible part of air pollution, not 
the invisible.
    Mr. Johnson. It is, it is the visible part that you see. 
So, we recognize that investment in clean diesel--whether it's 
retrofitting, whether it's replacing--is a great investment in 
protecting public health.

                              CLEAN WATER

    Senator Allard. Okay. Let me move on to the Clean Water, to 
the State Revolving Fund, I think Senator Craig brought that 
up. Again, in light of what I mentioned here, on my first 
question, about some of these mandates that are requiring 
problems for small communities to comply with--can you tell me 
how EPA intends to help rural and poor communities maintain 
sewage plants and mitigate non-profit source pollution, in the 
face of those reductions in the State Revolving Fund?
    Mr. Johnson. Well, again, we believe it's multiple 
approaches. One is through support of the SRF; two, for 
continuing to provide flexibility in implementation; three, 
research and development; four, through a variety of--what I 
would characterize as--innovative approaches, whether it's, 
again, dealing with runoff from these abandoned mines to 
private activity bonds, which we have seen very successful 
implementation, to the technology that we're continuing to do 
our research and development.
    Again it's--unfortunately----
    Senator Allard. Now, if----
    Mr. Johnson. We do have a challenge. It's going to take all 
of those pieces coming together to really, I believe, 
accelerate the progress that we all want to make.
    Senator Allard. If the Congress puts more money in the 
State Revolving Fund, how are you going to treat those dollars?
    Mr. Johnson. Well, I support the President's budget, and 
look forward to continuing to work with you and other Members 
of Congress as you consider the fiscal year 2009 request.
    Senator Allard. What was the commitment that you said that 
you had made, you would just fund a certain percentage of that, 
and that has been met, and you felt that justified a reduction 
this year in the State Revolving Fund because they put extra 
money in there in previous years. So, how do you--so, again, if 
we put more money in there, what happens to that money--does it 
just sit there, does it end up getting diverted over to another 
program, or does it stay in the State Revolving Fund and you 
spend it out?
    Mr. Johnson. Again, all dependent upon how--if you Members 
of Congress made a decision to appropriate funds to that 
account, it is at least my experience that we recognize that 
and honor that commitment.
    Again, look forward to working with you, the President's 
budget recognizes that there's a need, the President's budget 
recognizes a commitment that he's made to achieve a revolving 
loan fund, both in drinking as well as safe water----
    Senator Allard. I understand----
    Mr. Johnson. Also recognizes that as the Madam Chairman has 
pointed out--it's a challenge.
    Senator Allard. I understand the President wanting to stay 
to the bottom line figure, but----
    Mr. Johnson. It would just go to the States with the rest 
of the money.
    Senator Allard. Okay, yeah. Yeah, I understand the 
President's need to try and reach the balance, you know, that 
total budget figure for your agency, or agencies. I understand 
that, but, you know, we can shift money around a little bit, we 
can take--we can get money someplace else and put in here and 
do those kind of things.
    So, I just wanted to know how you would treat that.
    Thank you.
    Mr. Johnson. Thank you.
    Senator Allard. Thank you, Madam Chair.
    Senator Feinstein. Thank you very much, Senator.

                       PERCHLORATE CONTAMINATION

    I have three questions, they are California-related 
questions. The first relates to perchlorate. As you know, it's 
a by-product of rocket manufacture, it leeches into the ground, 
it contaminates ground water. We have many drinking water wells 
that are contaminated.
    The small city of Rialto has 22 of them, has had to declare 
water emergencies. Santa Monica has had half of its water 
supply contaminated by perchlorate, and we have a half million 
residents in San Bernardino now who, for 6 years, have had 
additional charges on their water bill, to try to clean up 
perchlorate.
    Local water people--both locally elected officials as well 
as water contractors have requested that EPA seek replacement 
orders that require that parties who contaminated the water, in 
the first place, to help provide a solution. However, EPA does 
not appear to have taken any significant action.
    In 1999, I worked with EPA, other Members of Congress, on 
this similar situation in Santa Monica, and EPA did issue a 
water replacement order against Shell Oil Company. That was an 
effective solution, it cleaned up the MTBE contamination in 
Santa Monica. So, there's a track record of success, using this 
mechanism.
    I've been asked, by the locally-elected officials, and by 
the water contractors, to ask you to sit down with us and see 
if we can't work out a solution. It can't go on the way it's 
going, because there is so much insecurity about water, and the 
need to increasingly have water emergencies in this area--
particularly in San Bernardino County. So, I'd like to ask you 
if you would be willing to do that.
    Mr. Johnson. Madam Chairman, I would be pleased to have our 
staffs sit down. Again, I appreciate the great collaborative 
work that we have enjoyed through the years, and you certainly 
have my commitment. We will sit down and see if we can identify 
a solution.
    Senator Feinstein. All right, I would appreciate that, very 
much.

           MARINE DIESEL AND LOCOMOTIVE EMISSION CONTROL RULE

    Now, the press has reported that OMB has approved the final 
Marine Diesel and Locomotive Emission Control Rule. Is that 
true? If so, when can we expect the final rule to be released?
    Mr. Johnson. It is my understanding that, in fact, the 
Marine Diesel Rule--a very important rule, as you're well 
aware--is just cleared Interagency Review, and we and the 
Agency are now--and particularly my team--are looking at 
communication and rollout strategy for that. I expect us to be 
able to roll out that final rule soon, within the next few 
weeks.
    Senator Feinstein. Oh, good. Good. That's the first good 
thing I've heard, thank you.
    Mr. Johnson. Well, thank you.
    Senator Feinstein. Now, under Federal law, the deadline in 
South Coast to attain the annual particulate matter 2.5 
national ambient air quality standard is 2015. So, the district 
is thus required to demonstrate that attainment in the year 
2014.
    I'm informed that the district needs advance control of 
nitrogen oxides created by locomotives, i.e., Tier 4 standards, 
to comply with this deadline. I also understand that the Draft 
Locomotive Rule EPA issues, only requires such advanced 
controls for locomotives first sold in 2015. This is after the 
Federal attainment deadline. What will the final rule do to 
speed up this schedule to ensure that Southern California can 
meet Federal attainment deadlines?
    Mr. Johnson. Well, Madam Chairman, as you correctly point 
out, that was what our proposal was, of 2015, and that's also 
one of the issues that did come up during the public comment 
period for the agency, and that will be addressed in our final 
rule. So, a very important issue, and I look forward to moving 
our final rule in this area, again, because the diesel 
emissions, we understand the significant opportunity to advance 
public health protection. So, that issue will be addressed in 
our final rule.
    Senator Feinstein. All right.

                      SUSTAINABLE PORTS INITIATIVE

    Your budget includes a new proposal to target $15 million 
of the $49 million you request for Diesel Emissions Reduction 
Act grants toward a Sustainable Ports initiative. This 
initiative will provide a low-cost way for ports to pay for 
diesel retrofits, or other emission controls.
    As you know, California is home to some of the world's 
busiest ports--L.A. Long Beach has 40 percent of the container 
traffic coming into the Nation, coming into this port. Goods 
movement through these ports is a major contributor to ozone 
and particulate matter.
    How will these new funds be spent? How will EPA prioritize 
those funds so that the lion's share will reach ports like Long 
Beach L.A., because they handle so much of the traffic?
    Mr. Johnson. I thank you for the opportunity to actually 
visit the L.A. port, and I've had the opportunity to visit 
other of our Nation's busiest ports, as well. It was very clear 
to me of a need and an opportunity and that's why we have 
designated $15 million, to help in this arena.
    Our plan is to develop a competitive program that, when 
they--would enable us to get these advanced technologies, 
whether it's replacing or new equipment or retrofitting, and to 
look at those areas that both have the greatest need and the 
opportunity for making a difference. Making a difference, not 
only from an environmental, but from a public health 
standpoint. So, we're still working on what the criteria would 
be for competitive, but that's the general area.
    Certainly, there is a need and an opportunity. We're going 
beyond that, because we're also, certainly, recognize the 
opportunity internationally, and we're working as part of the 
IMO arena, in the International Marine Organization and others, 
of what steps can be taken both in the area of clean diesel 
fuel, as well as in the technology for these large, ocean-going 
vessels.
    Certainly we have funded as an agency--through Congress' 
support, and the President's support--some innovative 
approaches in helping to reduce that air pollution. So we're 
going to continue on that front, as well.
    Senator Feinstein. Well, I appreciate that.
    I'd just like to add, and you probably know this--that 
people living in areas related to this now have a 1 in 500 risk 
of achieving cancer from air pollution. I want you to know that 
it is a very serious problem in the area, that the asthma rate 
is going up, and that if you ask people in the Los Angeles 
area, this is going to be one of their major environmental 
concerns.
    We're joined by Senator Stevens, and Senator, I think 
everybody has come and gone, so I'll turn it over to you for 
any questions you might have.
    Senator Stevens. As Senator Simpson said once, 
``Everything's been said, but not everyone's said it.''

                      ALASKA NATIVE VILLAGE GRANTS

    I've come by from--we've just had a hearing with Homeland 
Security in the other subcommittee, and I've come by to discuss 
some of the problems that we've got in Alaska, and in 
particularly, I want to raise the question to you of the Alaska 
Native Village grants--this is part of the Alaska Native Rural 
Program.

                         ANTI-EARMARK SYNDROME

    We had hoped that we could go forward with that list of 
priorities--there's now an anti-earmark syndrome around here, 
as you know, but it seems this budget has been written with the 
idea that we would increase several items, because in the past 
we've done that.
    Did you take into account, at all, the probability that the 
various earmarks that members have put in, in the past, would 
probably not be achievable this year?
    Mr. Johnson. Well, Senator, as we prepared the budget, and 
certainly as the President made decisions as to what the budget 
should look like across the government, we as an agency--and 
that's certainly been my experience, as I've commented earlier 
to Madam Chairman--as an agency, we don't carry over 
congressionally directed funding, or so-called earmarks, and we 
did not in the 2009 budget, as well.
    Then, we constructed the budget based upon where the 
priorities are, where we think there is significant opportunity 
for delivering results to the American people.
    Senator Stevens. Do you carry over the funds if you don't 
spend them?
    Mr. Johnson. Many of our funds are 2-years funds, and so 
those funds--for example, like the Greenhouse Gas Registry--in 
the omnibus appropriation, we have $3.5 million this year--
those are 2-year funds, and so we'll use those this year for 
working on the Registry, as well as next year as we move 
forward in developing one. So, that's just an example.
    Senator Stevens. Well, we--I thought we had an 
understanding, sort of a plan with the administration going 
back to 2007, when there'd be a target for 92 percent coverage 
for drinking water and sanitation in rural Alaska villages. 
Last year, for 2008, we had a request for $15.5 million, we 
raised that $9 million. We're still not going to achieve the 
goal of having even 92 percent of the villages of Alaska have 
water and sewer facilities.
    There was the Federal Government--if they don't have water 
and sewer, they have higher costs, basically, of medical costs, 
frankly. We've traced a lot of the diseases that the children's 
had to bad disposal systems for sewage, we call them ``honey 
buckets.'' Now, this budget goes back to $15.5 million.
    Did you spend the money we gave you last year? Have you 
obligated it for 2008?
    Mr. Johnson. I'll have to check with our--I don't believe 
that we've obligated it, Senator Stevens. I also just want to 
make sure, because the staff have pointed out that the Alaska 
Native Village Funding increase is not considered an earmark, 
however, we did not sustain the 2008 increase in the budget.
    Senator Stevens. Not considered an earmark? Do you have a 
definition for earmarks that I don't know of? I raised a budget 
item in this subcommittee from $15.5--I raised it $9 million 
last year.
    Mr. Johnson. I think the current funding of the 2009 
President's budget is----
    Senator Stevens. Fifteen point five.
    Mr. Johnson. Fifteen point five.
    Senator Stevens. That's what it was last year, and we added 
$9 million on top of that. I don't think it was spent, but 
beyond that, we had a target of--hopefully of trying to reach 
100 percent of the villages to be covered by 2011, currently 
your--by the way, when we started this we were at about 41 
percent--we've done pretty well with the program, and people in 
the area are very appreciative. But it looks like we're 
abandoning the program. It's not going to keep up the level we 
had last year.
    Now, how did you--you said that was not considered an 
earmark? When I asked the subcommittee, and they did increase 
that by $9 million, that wasn't an earmark?
    Mr. Grumbles. Senator, it was an increase, however, we 
didn't sustain that 2008 increase as we went through and made 
tough budget decisions.
    Senator Stevens. What do you mean, you mean you didn't even 
plan to spend it?
    Mr. Johnson. No, no. Whatever has been appropriated we will 
spend, and spend as directed.
    Senator Feinstein. Excuse me, you just told me you weren't 
going to spend any money that was an earmark.
    Mr. Johnson. No, no--there was a--let me make sure that 
it's clear--my Deputy, Marcus.

                         ALASKA NATIVE VILLAGES

    Mr. Peacock. Well, I have some familiarity with this 
program, although this budget, not recently. It's a 
longstanding program, as you know, Senator, to as you pointed 
out to help the Alaska Native Villages. We've kept the funding 
flat despite the fact that it was increased last year, in our 
proposal for 2009. As you pointed out, it has been successful 
but we have had problems in the past, in terms of getting the 
money spent, once it was obligated.
    Senator Stevens. Well, you have trouble getting the money 
spent if you don't put it up and give it to the area office.
    Mr. Peacock. The vast majority of it has been obligated--
not all of it--for this year. But the vast majority of it has 
been obligated for this year.
    Senator Stevens. Well, am I to report to my people that you 
decided that 2011 is not the target for 100 percent of water 
and sewer for these villages?
    Mr. Peacock. Within the budget constraints, we think the 
same amount that was, that we requested last year is sufficient 
for 2009.
    Senator Stevens. That's not my question. Have you abandoned 
2011 for 100 percent of all of these villages having water and 
sewer?
    Mr. Peacock. I think our goal has remained the same, but 
we'll have to get back to you after we talk to the Office of 
Water. We do try and, of course, what we want to make sure is 
that not only Alaskan villages, but that all of the water 
systems throughout the country eventually reach the goal of 100 
percent.
    Senator Stevens. Well, eventually is, you know, I'm trying 
to seek reelection right now, but 6 years is 6 years. You know? 
We've been involved in this one for longer than 6 years, 
already. I do not understand why it's been reduced.
    I would like to have you put in the record what you 
consider to be the date for completion of the water and sewer 
facilities for Alaska rural villages under this program. Our 
target was 100 percent, at one time. Is that--put in the 
record--is that still your target? If so, what's the date for 
that?
    Mr. Peacock. We'll get that information to you, Senator.
    [The information follows:]

    EPA and the State of Alaska estimate that the EPA Alaska Native 
Village infrastructure program will be able to provide 100 percent of 
``serviceable'' rural Alaska homes with access to drinking water and 
wastewater services by the end of fiscal year 2018. This fiscal year 
2018 end date is based on current EPA and USDA funding levels. 
(Unserviceable homes are defined as residences that cannot be serviced 
due to reasons such as being structurally unsound, seasonally occupied, 
or located in areas that are too costly to serve. In addition, whole 
communities may be unserviceable due to the dangers of erosion and 
flooding or because they are financially unable to operate water/
wastewater systems due to local economic constraints or limited 
community size.)

    Senator Stevens. All right.
    I'm a little concerned about the $134 million reduction in 
the Clean Water State Revolving Fund, could you explain that to 
me?
    Mr. Johnson. Yes, sir. As you said, this issue has come 
up--the President's budget invests $555 million, and that it 
meets the President's commitment to achieve $3.4 million----
    Senator Stevens. You guys put the President--what did you 
ask the President for?
    Mr. Johnson. As I said, this represents----
    Senator Stevens. What did you ask the President for? On 
this item?
    Mr. Johnson. This is what I represented to the President, 
this is again, meeting the President's commitment, and----
    Senator Stevens. Don't tell me that.
    Mr. Johnson. I support the President's budget.
    Senator Stevens. What was the amount you requested from the 
Office of Management and Budget for this account?
    Mr. Johnson. As I said, I support the President's budget, 
and this is an important area----
    Senator Stevens. Are you going to answer my questions, 
Mister?
    Mr. Johnson. Well, as I said, this is the President's 
budget, it doesn't----
    Senator Stevens. I didn't ask you that. I asked you, what 
did you ask OMB for?
    Mr. Johnson. Senator, may I ask Ben Grumbles to come to the 
table? He's head of our water program.

                    CLEAN WATER STATE REVOLVING FUND

    Mr. Grumbles. Senator, in the process, through the Chief 
Financial Officer in the engagement and the development of the 
2009 budget, what was agreed to back in 2004 was a long-term 
plan for the Clean Water State Revolving Fund that would be 
reflected in each of the President's budget requests, including 
fiscal year 2009. So, when we engaged with the OMB in terms of 
the national water program, we looked at what Congress had 
previously appropriated, and measured that against the level, 
and that's how we came up with the $555 million.
    But, we didn't have a separate dollar amount, other than 
looking at, well, the previous year we had asked for $600 
million in the 2008 President's budget request we had requested 
$688 million. We then looked at what Congress had appropriated 
for the fiscal year 2008 budget and based on that, and the 
math--taking into account the 2004 commitment to provide $6.8 
billion through 2011--that's how we came up with the $555 
million. Jointly with OMB, Senator.
    Senator Stevens. What I'm hearing you to say is that you 
set a target back several years ago----
    Mr. Grumbles. Yes, sir.
    Senator Stevens. This year, you looked at how much had been 
appropriated by Congress, so far, toward that target?
    Mr. Grumbles. That's correct.
    Senator Stevens. You asked for the balance, is that right?
    Mr. Grumbles. That's the way it would work out, yes.
    Senator Stevens. Did you--that's the amount now, I asked--
you know, I sat at those tables when I was with the Eisenhower 
administration. I know what you're under in terms of what you 
can and can't do. But you can tell me what you requested of OMB 
for this year, can't you? There's no par on that.
    Mr. Grumbles. Right. We----
    Senator Stevens. How much did you ask OMB for this year?
    Mr. Grumbles. We requested--when we went to OMB, we 
requested the amount that would be consistent with our 2004 
commitment that we reached with OMB, in terms of the 
administration's $6.8 billion request. So, we went to OMB 
saying, ``Let's do the math, and figure out what the 
appropriate level is.'' So, that's how we jointly got----
    Senator Stevens. Was that amount, that 2004 level, was that 
approved by Congress?
    Mr. Grumbles. No, it was part of the present--the 
administration's vision on how much continuing seed money to 
put into the Clean Water SRF and each budget request since then 
has been consistent with that. Budget requests have declined 
over the last several years, taking into account----
    Senator Stevens. What you're telling me, I hope you're 
hearing this, Madam Chairman, because they decline based on how 
much we put up--you reduce the next year by the amount we added 
to the previous year, in effect.
    Mr. Grumbles. That, coupled with the vision on sustainable 
infrastructure and the innovative technologies, and the full-
cost pricing--that has been the approach on the State Revolving 
Fund to get to a final level that revolves at $3.4 billion a 
year.
    Senator Stevens. This is not a spending program, this is a 
loan program. You understand that, don't you?
    Mr. Grumbles. Yes, sir.
    Senator Feinstein. Senator, what the staff just informed 
me, is that we have never agreed to this. They just arbitrarily 
did it.
    Senator Stevens. I understand that. We've never agreed to 
it, and as a matter of fact, until last year, we didn't even 
know about it. But this policy of having an ongoing--the more 
Congress adds, the more it's reduced in succeeding years is an 
additional--it really forces earmarks. Because you're saying, 
in order to maintain the same level that we had last year, 
we've got to earmark the additional monies. I've never heard of 
it.
    I really think--if you'll pardon the phrase--it's 
bureaucratic arrogance. Having served a, you know, 8 years in 
the administration--another administration--I want you to know 
I don't appreciate that. We didn't have that kind of arrogance, 
and I really think you ought to listen to what Congress is 
doing, in terms of setting national goals.
    It sounds to me like your 2004 decision was sacrosanct as 
far as the Federal Government was concerned--nothing Congress 
can do about it, you just keep reducing down by the amount we 
increase. It's a crazy system.

                        GREENHOUSE GAS REGISTRY

    Now, let me ask you about another one, though. That is the 
Greenhouse Gas Registry. The White House proposed no funding 
for this new program, it was put into the appropriations bill 
in December, Senator Klobuchar came and talked to me, as a 
matter of fact, and others about it. But--why didn't you put 
money in for the Greenhouse Gas Registry? There's so much talk 
about this, but without such a Registry, no one is really going 
to know what they're talking about.
    Mr. Johnson. Well, we have $3.5 million this year as part 
of the omnibus appropriation. We are working on a draft 
regulation, we intend to meet the omnibus, congressionally 
directed schedule, which we expect that by the--September of 
this year, that we will have a proposed regulation on 
Greenhouse Gas Registry.
    We've also begun the work with the States--there's 
California, plus, I believe either 6 or 7 other States that 
have, or are developing, registries, and we think that's a good 
thing. But we're working on developing--and intend to have a--
proposed regulation by what the schedule that was in the 
omnibus appropriations was, as I recall, September.
    Senator Stevens. Let me tell you--is there any direction 
Congress would give you with regards to spending money, you 
would follow?
    Mr. Johnson. Well, we are, sir. We're following the 
direction and----
    Senator Stevens. I haven't heard any so far.
    Mr. Johnson. Well, we're working on----
    Senator Stevens. What you're saying is, the money we put up 
for 2008, you take into account as you reduce 2009.
    Fully understanding that there is a new paradigm, no add-
ons. No earmarks. So, that under the rules here, that program 
is going to have to be slashed.
    Senator Feinstein. Senator, you're right--I put in the $3.5 
million last year. It takes 2 years. So, they need $3.5 million 
this year, assuming they're doing it.
    Senator Stevens. I agree.
    Senator Feinstein. So that would have to be, I guess, an 
earmark, which they are now saying, they won't follow.
    Senator Stevens. That's right.
    Mr. Johnson. Madam Chairman, just to make clear for the 
record, we area working on a draft regulation, and I intend to 
make sure that we meet our mandate of having a proposal, and I 
believe the date is September.
    Senator Stevens. Did you know how the Congress dealt, no, 
the administration--Congress dealt with an administration 
official that wouldn't follow their suggestion, back in the old 
days, the Bureau of Land Management? The next bill, they just 
eliminated the job of the person that would refuse to obey 
their direction.
    Senator Feinstein. Well, I'll tell you, this budget is 
disastrous when you look----

                    LAND PROTECTION AND RESTORATION

    Senator Stevens. I've never seen such arrogance as there is 
in this EPA budget, as a matter of fact. The Land Protection 
and Restoration line item for oil spills response was slashed 
by $183,000 for 2009. Why?
    Mr. Johnson. Are you referring to our----
    Senator Stevens. The Land Protection and Restoration line 
item for oil spills response was reduced by $183,000.
    Mr. Johnson. Let me ask Susan Bodine who heads up our 
program.
    Ms. Bodine. Yes, we believe we can still--we can carry out 
the program within the requested amounts. So, we don't 
anticipate----
    Senator Stevens. What led you to that belief? What led you 
to believe that we don't need money for land response for oil 
spills?
    Ms. Bodine. We have funding for the oil spill program.
    Senator Stevens. But you reduce it by $183,000 over 2008.
    Ms. Bodine. That's correct, but----
    Senator Stevens. But what was the rationale for bringing it 
down?
    Ms. Bodine. The rationale was that we believe we can carry 
out our responsibilities within the requested amount of 
funding.
    Senator Stevens. I don't know, I'm really disturbed at some 
of the things they're doing, because the administration is 
taking the position that you can't have earmarks, we're not 
supposed to make add-ons. But at the same time, they're using 
formulas which punish us for past earmarks, and past add-ons. 
And it puts us in an absolutely untenable position as to 
maintaining a level of ongoing programs that we've funded in 
the past.
    Senator Feinstein. I was thinking the same thing. I 
outlined the percent cuts. The percent cuts in critical 
programs are very large. This means there is no way for us to 
restore those cuts, if they're going to ignore any 
congressional add, which they call an earmark.
    I don't even know if we want to pass this budget, if that's 
the case. I mean, at some point, you've got to the conclusion, 
why run for the Senate of the United States, why sit as an 
appropriator--I come from a State that gives far more in taxes 
than it gets back in services. If you've got a major 
environmental problem in the State--and we have several, I've 
outlined the non-attainment standards for Fresno, and for the 
Los Angeles area, the port problems--yet we can't add money to 
solve those problems. So, why put out--why put our names on a 
budget that we know is going to fail to accomplish the purpose? 
I think that's the problem we have.
    Senator Stevens. Well, that's the conclusion that's got to 
be reached, that we're better off under the 2008 budget. We're 
better off not to give you anything for 2009, and just to 
travel on a continuing resolution into October 2009. The 
programs that affect my State would be better off under 2008, 
than they would under 2009. Did you ever think about that?
    Mr. Johnson. Again, we believe that this budget is a good 
budget, it balances the needs of moving forward with the pace 
of environmental protection, at the same time recognizes that 
we have to be good stewards of taxpayers dollars.
    Senator Stevens. I don't have any more questions. I don't 
think it's--you might carry back the message that, in all 
probability, if the Senate follows my advice, we'll give the 
President a continuing resolution for 2009.
    Senator Feinstein. You know, it's very hard, because we 
have a 20 percent cut in the Clean Water State Revolving Fund, 
a 10 percent cut in grants to States for environmental 
protection, a 14 percent cut in State grants for reduction of 
air pollution, and it goes on and on and on.
    I, you know this--for the first time he's said, in so many 
words, ``We're not going to recognize any congressional add.'' 
Well, maybe we join the issue, and we don't pass a budget. 
Because I don't know why you'd want to run for the United 
States Senate--particularly, I come from 37.2 million people--
and not be able to do anything that benefits a real need of my 
State.
    If the President doesn't do it, then what you're saying, 
the President conditions all spending, and the Congress has no 
voice. So, we don't even need an Appropriations Committee, if 
that's the case.
    Senator Stevens. They ought to read the Constitution. 
That's for sure. Well, we can talk and talk but I share your 
feelings about this, and I think there is a total breakdown in 
regard to the process that we're involved in. I've been through 
this process now for well over 30 years, and I've never seen it 
in worse shape. But, it's because of what we're getting from 
downtown. You refuse to recognize what we've done in the past, 
which was approved by the President. What you do is, then, 
offset that against a goal you set in 2004? Notwithstanding, 
all the goals we set in, we established in legislation and the 
President signed in 2005, and 2006, and 2007 and 2008. That's 
arrogance. Pure arrogance.
    Senator Feinstein. Well, I--no, I think there is no 
jointness with this administration. There is no real 
consultation with the Congress. There is no real understanding 
that the Congress plays a role in all of this. It's that we're 
to be a rubber stamp for the President's request, and----
    Senator Stevens. It's really not the President.
    Senator Feinstein. Well, Mr. Johnson pointed out, over and 
over again during this hearing, ``This is the President's 
budget.''
    Senator Stevens. He's says that, but I don't think the 
President even knows of some of these items, I'm sure he 
doesn't it is the OMB and the Assistant Secretary in each 
Department dealing with this budget process.

                     ADDITIONAL COMMITTEE QUESTIONS

    Senator Feinstein. There will be some additional questions 
which will be submitted for your response in the record.
    [The following questions were not asked at the hearing, but 
were submitted to the agency for response subsequent to the 
hearing:]
            Questions Submitted by Senator Dianne Feinstein
          california waiver decision/greenhouse gas regulation
    Question. The ``Federal Register Notice of Decision Denying a 
Waiver of Clean Air Act Preemption for California's 2009 and Subsequent 
Model Year Greenhouse Gas Emission Standards for New Motor Vehicles'' 
(The Notice of Decision) concludes that Congress intended that waivers 
would only be issued if California had a ``unique'' problem, based on 
both Committee Reports and Floor statements from 1967. In 1977, 
Congress amended the Clean Air Act, changing both the words and intent 
of section 209. The Federal Register notice does not mention 
congressional intent in 1977.
    a. Did you consider the intent of Congress in 1977 when making your 
decision?
    b. If so, why didn't the Federal Register Notice discuss this 
intent?
    c. Is it correct to infer that you do not find the 1977 amendments 
relevant to your decision to deny a waiver to California?
    Answer. In 1977, Congress amended section 209, but did not change 
section 209(b)(1)(B), the waiver criterion at issue in this waiver 
decision. The decision document describes in detail the bases for the 
decision including the legislative history of section 209(b)(1)(B). The 
decision document discusses the issue of deference to California's 
judgments, at 73 FR 12158 and 12162, noting that EPA's role in applying 
section 209(b)(1)(B) is not to substitute its judgment for California's 
on the value or benefit that might be derived from a specific set of 
greenhouse gas standards, and noting that with respect to sections 
209(b)(1)(A) and (C) EPA is not addressing or changing its approach to 
deferring to California's policy judgments on the best way to protect 
the public health and welfare of its residents. This discussion of 
deference is based in part on the 1977 legislative history behind 
section 209.
    As explained in the decision document, EPA appropriately exercised 
its own judgment in determining the limits or confines of state 
authority established by section 209(b)(1)(B). This does not change 
EPA's consistent view that within such confines it should give 
deference to California's policy judgments.
    Question. The Notice of Decision asserts that in 1967 Congress 
intended waivers to address problems ``unique'' to California. But in 
1977, Congress added section 177 to the act, which allows other States 
to adopt California's standards. If Congress intended for waivers to be 
limited to problems unique to California, why did it give other States 
the right to adopt the same standards?
    Answer. The decision document discusses in detail EPA's 
interpretation of section 209(b)(1)(B), including the legislative 
history of that provision. That waiver criterion was not amended by 
Congress in 1977. In the 1977 amendments, Congress did afford States 
the option of adopting and enforcing California's motor vehicle 
emission standards, under section 177, if certain conditions were met. 
The legislative history indicates that section 177 was added to give 
States more flexibility in determining how to ``protect public health 
while still permitting reasonable new growth Still another element of 
flexibility for States that is afforded in this section is the 
authority for States with nonattainment areas for automotive pollutant 
pollutants (other than California) to adopt and enforce California new-
car emission standards if adequate notice is given . . . this should 
pose no significant burden to the manufacturers. It permits the State 
to decide whether or not such standards should be adopted in order to 
permit more stationary source growth and jobs in the State.'' [Report 
by the Committee on Interstate and Foreign Commerce (95th Congress, 1st 
Sess. Report No. 95-294, at pgs. 213 and 310-311)].
    Question. In 1984, EPA Administrator William Ruckelshaus issued a 
waiver decision that stated, in part:

    ``Motor Vehicles Manufacturing Association, Auto International 
Association, General Motors and Volkswagen also argue that in order to 
be granted a waiver for its particulate standards California must have 
a `unique' particulate problem; i.e., one that is demonstrably worse 
than in the rest of the country. However, as CARB points out, there is 
no indication in the language of section 209 or the legislative history 
that California's pollution problem must be the worst in the country, 
for a waiver to be granted.''

    The Notice of Decision asserts that the legislative history of 
section 209 requires that California's pollution problem must be 
``unique.'' Upon what legal basis have you rejected the precedent set 
by the 1984 ruling?
    Answer. EPA's waiver decision discusses in detail the 1984 waiver 
decision at 73 FR 12159-12160. As stated in the 1984 waiver decision, 
the phrase ``compelling and extraordinary conditions'' refers to 
``certain general circumstances, unique to California, primarily 
responsible for causing its air pollution problem,'' like thermal 
inversions, topography, and California's motor vehicle population. 
Thus, in 1984, EPA reasoned that the term compelling and extraordinary 
conditions ``does not refer to the levels of pollution directly.'' 
Instead it refers primarily to the factors that tend to produce higher 
levels of pollution--``geographical and climatic conditions (like 
thermal inversions) that, when combined with large numbers and high 
concentrations of automobiles, create serious air pollution problems.'' 
73 FR 12160.
    EPA's waiver decision concerning California's greenhouse gas 
standards does not reject the focus of the 1984 decision on the factors 
that cause air pollution. EPA's decision document describes the 1984 
waiver decision, which addressed a local or regional air pollution 
problem like ambient levels of particulate matter and discusses in 
detail the appropriate way to implement section 209(b)(1)(B) in the 
very different context of a global air pollution problem, like elevated 
concentrations of greenhouse gases. In the context of greenhouse gases, 
EPA determined that the appropriate criteria to apply is whether 
emissions of California motor vehicles, as well as California's local 
climate and topography, are the fundamental causal factors for the air 
pollution problem of elevated concentrations of greenhouse gases, and 
in the alternative whether the effect in California of this global air 
pollution problem amounts to compelling and extraordinary conditions. 
73 FR 12162.
    Question. Mr. Johnson, you are under remand from the United States 
Supreme Court to determine whether carbon dioxide contributes to 
climate change and endangers public health and welfare. I have 
requested that you set an internal deadline by which you intend for EPA 
to respond, and you have refused.
    a. Please provide a detailed list of benchmarks that EPA must meet 
before it can respond to the Supreme Court's remand.
    b. Please determine how many of these benchmarks have been 
completed to date.
    c. Please state how many EPA staff members are working on each 
remaining benchmark at this time.
    d. Please provide an explanation for why you stated in your March 
3, 2008 letter that ``I am currently unable to provide you and the 
Committee with the `detailed timeline' requested.''
    e. Please explain what impedes the EPA from setting a timeline for 
completion of this work.
    f. Please explain why it was possible for EPA to set such a 
timeline in 2007, but it is not possible to set a timeline today.
    Answer. As you know, EPA had previously planned to issue a proposed 
endangerment finding and vehicle GHG standards under the Clean Air Act 
(CAA) by the end of last year. However, after enactment of the Energy 
Independence and Security Act in December, it was appropriate for the 
agency to consider the impact of the new law, with its requirement for 
tighter vehicle fuel economy standards, on EPA's regulatory plans.
    As I explained in my March 27, 2008 letter to you, I have decided 
that the best course of action for responding to the Supreme Court's 
remand is to issue an Advanced Notice of Proposed Rulemaking (ANPR) 
later this Spring. That notice will build on the agency's work to date 
on a potential endangerment finding and vehicle GHG standards under 
Clean Air Act section 202. It will also explain the broader Clean Air 
Act implications of taking such actions. My letter describes some of 
those implications and explains why it is important to consider them in 
developing a strategy for potentially regulating GHGs under the CAA.
    I have asked my staff to develop an ANPR for publication by late 
Spring. Because of the breadth of issues the ANPR will cover, including 
the regulatory implications for stationary sources if the vehicle GHG 
standards are set under the act, staff from several offices within the 
Office of Air and Radiation as well as staff from the Office of General 
Counsel are involved in drafting the notice. They are drawing from, and 
in some cases adding to, the information that was developed and 
compiled last year as part of EPA's efforts to respond to the Supreme 
Court's decision and the President's 20-in-10 Executive order.
    The ANPR will give the public an important opportunity to comment 
on the many issues that need to be considered in moving forward with 
any Clean Air Act regulation of GHGs. Following the public comment 
period, I will assess how best to respond to the Supreme Court's 
decision in light of the comments received. While I cannot give you a 
detailed timeline for issuance of the ANPR or for next steps following 
receipt of public comments, I can assure you that I intend to proceed 
expeditiously and lay a solid foundation for future decisions on 
addressing climate change.
                    air pollution in national parks
    Question. EPA recently participated as the science lead in the 
Western Airborne Contaminants Assessment Project (WACAP) to determine 
the levels and sources of airborne pollutant deposition in ecosystems 
that are traditionally regarded as the most pristine and intact 
ecosystems in the America: western national parks. The National Park 
Service recently released the results of this study and they are 
alarming: over 70 different contaminants, including toxic heavy metals 
like Mercury and pesticides such as DDT, were found at significant 
levels in parks from Sequoia-Kings in California to Glacier in Montana 
to Denali in Alaska.
    In many parks, the toxicity levels in native fish in high mountain 
lakes exceeded the recommended consumption guidelines, not only for 
humans, but for other mammals and birds that rely on fish as a key 
source of caloric intake. These contaminants are weakening the 
ecosystems of national parks and a potential danger to human health.
    1. What are the implications of the WACAP study in terms of the 
ability of current regulations to effectively prevent air pollution, 
not only in our national parks, but across our country? Do these 
results not suggest additional action to improve air quality is 
warranted?
    2. Will EPA present policy recommendations for Congress and/or the 
Administration in the wake of these results? Please provide details.
    Answer. EPA commends the National Park Service and the interagency 
contributors for the WACAP study. This valuable research has 
demonstrated that a number of environmental contaminants are more 
persistent and widely distributed than previously understood. The study 
also showed that, for many contaminants, local and regional sources may 
contribute more to contamination in the western parks, outside of 
Alaska, than international or intercontinental transport of airborne 
contaminants.
    All of the contaminants identified by the study as being of highest 
concern are the subject of existing regulations or on-going regulatory 
actions under the Clean Air Act, the Federal Insecticide, Fungicide, 
and Rodenticide Act, and the Toxic Substances Control Act. In addition, 
most of the contaminants identified in the study as being of potential 
concern are subject to existing regulations or are being considered for 
further regulation under these statutes. Many of these contaminants and 
their sources are also subject to state and local controls. EPA is 
aware that the National Park Service is working at the level of 
individual parks to address the few local sources identified in the 
study. While the study did not address how the levels of contamination 
in the parks would be affected by further environmental regulations, 
EPA will evaluate this study, as well as other recent and ongoing 
studies (e.g., EPA's Great Waters program and newly-initiated National 
Academy of Sciences study on the significance of the international 
transport of air pollutants), in determining future research and 
regulatory needs for these pollutants.
    Many of the contaminants identified by the study are the subject of 
international cooperation, through bilateral and trilateral 
relationships with Canada and Mexico and through multilateral 
institutions, such as the Stockholm Convention on Persistent Organic 
Pollutants (POPs) and the United Nations Environment Programme's 
Mercury Programme. The United States' ability to address some of the 
contaminants of concern, particularly those that are no longer used in 
this country, would be significantly enhanced if Congress were to 
complete legislation enabling the United States to ratify the Stockholm 
Convention, as well as the Rotterdam Convention on the Prior Informed 
Consent Procedure for Certain Hazardous Chemicals and Pesticides in 
International Trade (PIC) and the Convention on Long Range 
Transboundary Air Pollution POPs Protocol (LRTAP POPs), and to work 
through these institutions to reduce their use globally.
                                 ______
                                 
                Questions Submitted by Senator Jack Reed
    Question. Recently, the Rhode Island Treasurer, the Rhode Island 
Department of Health, and the Rhode Island Clean Water Finance Agency 
contacted my office regarding a proposal by the EPA Office of the 
Inspector General to prevent states from using revenue bonds to provide 
the necessary 20 percent match for the State Revolving Funds. Is EPA 
considering changing this policy? If so, what process is EPA using to 
evaluate if this change is necessary?
    Answer. The fiscal year 2009 President's budget continues the 
policy of allowing States to use revenue bonds repaid from interest 
earnings to provide the State match for the State Revolving Funds. No 
decision has been made on how or whether to change this policy.
    Question. For over 10 years, EPA has failed to issue a final rule 
to protect children from lead poisoning during home renovation and 
remodeling in target housing, despite a 1992 congressional mandate to 
adopt a rule by October 28, 1996. The fiscal year 2008 Consolidated 
Appropriations conference report included language requiring EPA to 
finalize its Renovation, Repair, and Painting Rule by March 31, 2008, 
and encouraging that the rule be at least as protective as HUD's Lead-
Safe Housing Rule. What progress has EPA made towards finalizing the 
Renovation, Repair, and Painting Rule by the deadline at the end of 
this month, and what are the plans for implementation of the rule in 
fiscal year 2009? Specifically, how does the agency plan to provide 
sufficient training and outreach opportunities within the bounds of the 
current budget request?
    Answer. EPA finalized its Renovation, Repair, and Painting Program 
rule on March 31, 2008 (available at: http://www.epa.gov/lead/pubs/
renovation.htm). Implementation of this program is a priority for our 
lead poisoning prevention program. We expect many States to seek 
authorization to run the program and will be working with our State 
partners to develop efficient approaches to implementation.
    EPA will work with a broad range of stakeholders, including States, 
community groups, trade associations and other industry groups in 
conducting outreach and training. Central to this outreach is the 
pamphlet Renovate Right: Important Lead Hazard Information for 
Families, Child Care Facilities and Schools. This brochure, which is 
jointly sponsored by EPA and the Department of Housing and Urban 
Development (HUD), provides renovation-specific lead hazard information 
for persons who contract for or perform renovation, repair and painting 
projects in pre-1978 target housing and child-occupied facilities. EPA 
is also developing information specifically for contractors, including 
the brochures Contractors Lead Safety During Renovation and Steps to 
Lead-Safe Renovation & Remodeling. To effectively conduct outreach and 
training within the current budget request, the agency will build on 
the infrastructure and successes of its outreach and training program 
for abatement activities.
    EPA will facilitate having training providers for abatement expand 
their training courses to include formal training of renovators by 
developing a model training course for renovators required by the 
regulation. In addition, EPA will continue to encourage the training of 
a broad range of stakeholders, including community groups, in the use 
of lead-safe work practices.
    Question. The fiscal year 2008 Appropriations language encouraged 
the EPA Renovation, Repair, and Painting Rule to be at least as 
protective as HUD's Lead-Safe Housing Rule. What steps has the agency 
taken to respond to concerns about the proposed rule, in particular, 
the fact that the proposed rule did not ban dangerous lead practices 
(such as dry sanding), and did not include requirements to test for 
lead dust at the end of a renovation, painting or repair job involving 
lead-based paint in older housing?
    Answer. The final rule prohibits or restricts the use of dangerous 
practices such as removing lead paint by power sanding, use of a torch 
or by the use of a high temperature heat gun. EPA is allowing the use 
of dry hand sanding based on the results of a study the Agency 
conducted of renovation activities. In this study, when the work 
practices being required by EPA's rulemaking were used, including 
containment and specialized cleaning, renovation activities involving 
dry hand sanding did not result in lead levels above EPA's regulatory 
hazard standards.
    The work practices required by this rule have been demonstrated to 
be effective at protecting children from the lead-based paint hazards 
generated by renovation activities. Renovations covered by this rule 
will be performed in many homes all over the country. They will be 
performed for many reasons, most of which have nothing to do with lead-
based paint or lead-based paint hazards. Moreover, EPA has determined 
that the work practices in the final rule, including containment and 
specialized cleaning effectively minimize exposure to lead-based paint 
dust generated during renovations. Thus, EPA has determined that 
requiring dust clearance sampling and clearance, which is required for 
abatements in which all lead hazards must be removed, is not warranted. 
In addition, dust clearance sampling and clearance would not provide 
added value in terms of protecting children to balance the time and 
effort and the cost to home and building owners associated with 
requiring this additional step to the work practices.
    Question. Last year the Supreme Court ruled that the Clean Water 
Act only applied if there was a ``significant nexus'' of jurisdictional 
waterways. This test put a significant onus on the agencies to make a 
determination of what waters were or were not under the protection of 
the Federal Pollution Control Act. In response to this the U.S. Army 
Corps of Engineers increased the amount of funding to go toward these 
jurisdictional judgments, but no increases have been seen in the EPA's 
budget for this additional work. How is the agency addressing these 
increased demands and where is the funding coming from to deal with the 
increased bureaucratic burden?
    Answer. The U.S. Army Corps of Engineers is given the primary 
responsibility under the Clean Water Act (CWA) for work related to the 
issuance of section 404 permits. These responsibilities include 
conducting CWA jurisdictional determinations and review and issuance of 
permits. It is these activities where workload has increased the most 
in recent years as a result of, for example, recent court decisions. 
While EPA's workload has increased somewhat as a result of these same 
factors, EPA expects to be able to continue to meet our 
responsibilities under the CWA by adjusting the level of resources 
applied to the 404 regulatory program from within the available 
wetlands protection resources.
                                 ______
                                 
              Questions Submitted by Senator Wayne Allard
 delay in implementing a solution to the leadville mine drainage tunnel
    Question. We now have a locally declared emergency situation in 
Leadville involving a Superfund Site declared in 1983, 25 years ago. 
Why is this the case 25 years after recognizing the need for a 
solution?
    Answer. The California Gulch Superfund Site (Site) was listed on 
the National Priorities List (NPL) in 1983 to address hazardous 
releases associated with historic mining activity. The Site is 
comprised of approximately 17.9 square miles of mountainous terrain in 
and around the Town of Leadville in Lake County, Colorado. Since 1983, 
this large and complex Site has been divided into 12 separate Operable 
Units (OU). EPA has conducted studies, removal actions and remedial 
actions at various OUs, and many of the OUs have been completed in part 
or in full. Two OUs have been deleted from the NPL and EPA is in the 
process of deleting parts of other OUs. The emergency situation 
referenced in your question is a relatively new development. Since 
2001, additional investigations have indicated that groundwater and 
mine pool levels are increasing over time, and are likely due to 
blockages in the Leadville Mine Drainage Tunnel (LMDT). Over the last 
three years, EPA, the State and local community have become concerned 
that the increasing mine pool levels may cause an uncontrolled release 
of contaminated water.
    In view of the recent concerns of rising groundwater and mine pool 
levels, EPA, in coordination with the Bureau of Reclamation and the 
State of Colorado, is now conducting a removal action. This work 
commenced in February 2008 and includes two major activities. EPA 
installed a pumping system in the Gaw mine shaft and has been pumping 
at a rate of 450 gallons per minute since late February. This action 
may lower water levels in the mine pool. In addition, it appears to 
have diminished seeps and springs that had recently appeared in the 
lower California Gulch. Second, EPA is taking steps to drill a relief 
well into the LDMT to lower the level of water in the LMDT and mine 
pool. EPA plans to have the relief well, pump and pipe to the LMDT 
installed and ready to operate in Summer 2008.
    Question. As you know, the Bureau of Reclamation is responsible for 
the Leadville Mine Drainage Tunnel and the EPA is responsible for the 
Superfund site. In your view, what has prevented the various involved 
entities (EPA, Bureau of Reclamation, the State of Colorado, locally 
elected officials) from fixing this well known problem?
    Answer. EPA issued a Record of Decision (ROD) in 2003 for Operable 
Unit 6 (OU6) of the California Gulch Superfund Site (Site). Part of the 
remedy included addressing the Leadville Mine Drainage Tunnel (LMDT).
    Specifically, the OU6 ROD called for:
  --Installing an engineered plug, approximately 4,300 feet from the 
        LMDT portal.
  --Installing dewatering wells in the tunnel to manage tunnel and 
        hydrologically connected mine pool water levels behind the 
        engineered plug.
  --Installing a pumping system to deliver water to the LMDT treatment 
        plant from the dewatering well.
    The LMDT is owned by the Bureau of Reclamation (Reclamation), as is 
the LMDT treatment plant.
    In view of the recent concerns of rising groundwater and mine pool 
levels, EPA, in coordination with Reclamation and the State of 
Colorado, is now conducting a removal action \1\ to install dewatering 
wells in the tunnel and a pumping system to deliver water to the LMDT 
treatment plant. EPA, Reclamation and the State are working on a plan 
to implement a long-term solution to address these concerns and long-
term operation and maintenance.
---------------------------------------------------------------------------
    \1\ While Section 111 of CERCLA limits EPA's authority to expend 
Superfund dollars to carry out remedies (i.e., remedial actions) at 
federally owned facilities, EPA's authority to conduct certain removal 
actions under CERCLA is not limited. However, the Federal agency that 
owns the facility is required to provide reimbursement pursuant to 
Executive order 12580, section 9(i) ``Funds from the Hazardous 
Substance Superfund may be used, at the discretion of the Administrator 
or the Coast Guard, to pay for removal actions for releases or 
threatened releases from facilities or vessels under the jurisdiction, 
custody or control of Executive departments and agencies but must be 
reimbursed to the Hazardous Substance Superfund by such Executive 
department or agency.''
---------------------------------------------------------------------------
    Question. Why is the EPA, rather than the Bureau, now the lead 
Federal agency on the Leadville situation? Who made that decision and 
for what reasons?
    Answer. That decision has not been made. EPA is the lead Federal 
agency with respect to the California Gulch Superfund Site. EPA, the 
Bureau of Reclamation and the State are working on a plan to implement 
a long-term solution to address the high water levels in the mine pool 
and the Leadville Mine Drainage Tunnel. Among the items under 
discussion is what authority to use to implement that solution.
    Question. What can the EPA do to permanently fix this mine drainage 
problem?
    Answer. EPA, acting alone, cannot permanently fix this problem. 
EPA, the Bureau of Reclamation and the State are working on a plan to 
implement a long-term solution to address the high waters in the mine 
pool and the Leadville Mine Drainage Tunnel.
    Question. When is the mine pool (elevated ground water) going to be 
at a level that is not a threat to residents, local water supply and 
the environment? What level is considered a safe level?
    Answer. The Bureau of Reclamation is conducting a risk assessment 
that may help determine the appropriate mine pool level. Lowering the 
elevation of the groundwater will decrease risk to residents, the local 
water supply and the environment.
                                 ______
                                 
            Questions Submitted by Senator Pete V. Domenici
               arsenic standards and community assistance
    Question. In January 2006, the EPA began enforcing a new arsenic 
standard that requires public water systems to reduce arsenic levels to 
10 ppb, down from 50 ppb. My home State of New Mexico has high levels 
of naturally occurring arsenic in its volcanic soils which filter into 
the water supply. New Mexico is also one of the poorest states in the 
Union, with high levels of poverty.
    The costs of compliance facing New Mexico run upwards of $500 
million. According to the New Mexico Bureau of Geology and Mineral 
Resources, 20 percent of the State's municipalities will have to treat 
their drinking water to meet the standard. The new arsenic standard 
disproportionately impacts my State because only 5.5 percent of 
municipalities nationwide will have to treat their drinking water to 
meet the standard.
    Of the communities in New Mexico requiring water treatment, 93 
percent of them are small communities that probably cannot afford the 
cost associated with meeting this new standard. Indeed, for the average 
New Mexican, meeting the standard could increase the cost of water by 
$50-$90 per month.
    Would you discuss what resources, if any, are being marshaled by 
EPA to assist communities faced with the extraordinary costs in meeting 
the new arsenic standards?
    Answer. EPA has promoted the use of the Drinking Water State 
Revolving Loan Fund (DWSRF) for arsenic projects, and has worked with 
The Department of Agriculture's Rural Utilities Service to make arsenic 
treatment a priority for their funding programs. Currently 167 loans, 
totaling approximately $380 million, have been made for arsenic 
compliance through the DWSRF. Together with the Rural Utilities Service 
loan program, nearly $500 million as been made available to communities 
for arsenic compliance.
    To help reduce water utility costs for arsenic treatment, the 
Agency has developed a toolkit that facilitates decision-making, 
including choosing the most cost-effective technology. The kit includes 
websites (epa.gov/safewater/arsenic and arsenictradeshow.org), a print 
brochure, a training CD and a treatment technology DVD. Program 
managers and scientists at EPA have collaborated to promote the latest 
high-performing, cost-effective advancements in arsenic treatment 
technologies, particularly through EPA's Office of Research and 
Development's Arsenic Treatment Technology Demonstration Program. In 
addition, EPA has partnered with technical assistance providers such as 
the American Water Works Association (AWWA), National Rural Water 
Association (NRWA) and Rural Community Assistance Partnership (RCAP) to 
provide training opportunities and innovative outreach materials.
    Question. Would it be appropriate to try and assist those 
communities faced with debilitating costs in trying to meet the high 
standard through some legislative means, perhaps in targeted assistance 
in treatment facility construction?
    Answer. We believe that Congress has already provided an 
appropriate vehicle for assistance through the Drinking Water State 
Revolving Loan Fund (DWSRF). Since 1997, the EPA, through the DWSRF, 
has leveraged approximately $8.1 billion in federal grants to States 
into $14.4 billion in funds available to assist with drinking water 
infrastructure needs, including compliance with new arsenic standards. 
Through these funds, over 5,300 loans for over $12.6 billion have been 
made to projects to address the public health goals of the Safe 
Drinking Water Act. Almost all of these loans are provided at a reduced 
interest rate and almost 600 with some principal forgiveness. Nearly 75 
percent of loans go to communities with 10,000 people or fewer.
    Question. Because New Mexicans do not exhibit a higher rate of 
cancer due to the States higher levels of arsenic, and because studies 
released after the EPA issued its new arsenic standard do not tie the 
new arsenic standard to reduced health impacts, have you considered 
reviewing whether this more stringent arsenic drinking water regulation 
is appropriate?
    Answer. The agency is currently performing its second review of 
existing drinking water standards and we expect to release the 
preliminary results by summer of 2009. One of the key steps in our 
review uses a final, peer-reviewed health risk assessment. While 
arsenic is one of the 70 plus drinking water regulations included in 
the second review effort, the Agency is currently updating the arsenic 
risk assessment and it is not expected to be complete in time to 
consider for this review.
    For the revised risk assessment, EPA is considering all relevant 
studies published since the 2001 Arsenic Regulation. We presented the 
draft cancer assessment to EPA's Science Advisory Board (SAB) in 
September 2005. EPA is considering the SAB's June 2007 final report \2\ 
and public comments as the Agency works to update and finalize the 
arsenic risk assessment.
---------------------------------------------------------------------------
    \2\ Available at http://yosemite.epa.gov/sab/sabproduct.nsf/
EADABBF40DED2A0885257308006741EF/$File/sab_07_008.pdf.
---------------------------------------------------------------------------
    Question. What conclusions has the EPA drawn from the two studies 
conducted by Dr. Steven Lamm and published by the NIH, which challenge 
the data from Taiwan used by EPA to establish the current standard?
    Answer. Dr. Lamm presented his findings to EPA's Science Advisory 
Board (SAB) in September 2005. And the SAB record of the arsenic 
advisory meetings, report development and public meetings \3\ contains 
Dr. Lamm's subsequent comments and responses (to SAB), representing his 
2003, 2005, and 2006 studies.\4\ The final 2007 SAB report \5\ directed 
EPA to identify criteria to evaluate all relevant human studies and 
include information on the factors that affect the risk estimates. EPA 
is considering the 2007 SAB report and public comments as the Agency 
works to update and finalize the arsenic risk assessment.
---------------------------------------------------------------------------
    \3\ Available at http://yosemite.epa.gov/sab/sabproduct.nsf/
WebProjectsbyNameBOARD!OpenView.
    \4\ Lamm SH, DM Byrd, MB Kruse, M Feinleib, and S-H Lai. (2003). 
Bladder Cancer and Aresnic Exposure: Differences in the Two Populations 
Enrolled in a Study in Southwest Taiwan. Biomedical and Environmental 
Sciences 16:355-368.
    Lamm SH and MB Kruse. (2005). Arsenic Ingestion and Bladder Cancer 
Mortality--What do the Dose-Response Relationships Suggest About 
Mechanism? Human and Ecological Risk Assessment, 11:433-450.
    Lamm SH, A Engel, CA Penn, R Chen, and M Feinleb. (2006). Arsenic 
Cancer Risk Confounder in Southwest Taiwan Data Set. Environmental 
Health Perspectives 114:1077-1082
    \5\ Available at http://yosemite.epa.gov/sab/sabproduct.nsf/
EADABBF40DED2A0885257308006741EF/$File/sab_07_008.pdf.
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                                 ______
                                 
               Questions Submitted by Senator Harry Reid
    Question. EPA's budget request only briefly mentions the 
environmental standards that the Agency is required by statute to 
develop for the proposed Yucca Mountain Project. In 2004, a Federal 
Court of Appeals rejected the EPA's original standards. Over three 
years later, EPA still has not promulgated final radiation standards. 
When will EPA release its final standards?
    Answer. The radiation standard for Yucca Mountain has not yet been 
determined and is the subject of ongoing rulemaking proceedings. There 
are many complex issues involved in establishing regulations applicable 
for up to one million years that make it difficult to predict when 
these rulemaking proceedings will conclude. EPA continues to review 
public comments on its proposed rule and participate in the interagency 
review process pursuant to Executive Order 12866. Accordingly, EPA is 
not in a position to state when its final rule will be promulgated.
    Question. What is EPA's reason for not finalizing the radiation 
standards?
    Answer. The radiation standard for Yucca Mountain has not yet been 
determined and is the subject of ongoing rulemaking proceedings. There 
are many complex issues involved in establishing regulations applicable 
for up to one million years that make it difficult to predict when 
these rulemaking proceedings will conclude.
    Question. Where is the EPA's final radiation standard in the 
rulemaking process?
    Answer. EPA continues to review public comments on its proposed 
rule and participate in the interagency review process pursuant to 
Executive Order 12866. Accordingly, EPA is not in a position to state 
when its final rule will be promulgated.

                          SUBCOMMITTEE RECESS

    Senator Feinstein. Well, let me sum up by saying, this is a 
very unhappy budget, and we'll have to consult among ourselves, 
and come up with a course of action.
    I thank you very much. The subcommittee will stand in 
recess.
    [Whereupon, at 11:55 a.m., Tuesday, March 4, the 
subcommittee was recessed, to reconvene subject to the call of 
the Chair.]
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