[Senate Hearing 110-1246]
[From the U.S. Government Publishing Office]
S. Hrg. 110-1246
HEARING ON THE NOMINATION OF DAVID R. HILL TO BE ASSISTANT
ADMINISTRATOR (GENERAL COUNSEL) FOR THE ENVIRONMENTAL PROTECTION AGENCY
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HEARING
before the
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
APRIL 10, 2008
__________
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island CHRISTOPHER S. BOND, Missouri
Bettina Poirier, Majority Staff Director and Chief Counsel
Andrew Wheeler, Minority Staff Director
C O N T E N T S
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Page
THURSDAY, APRIL 10, 2008
OPENING STATEMENTS
Boxer, Hon. Barbara, U.S. Senator from the State of California... 1
Craig, Hon. Larry E., U.S. Senator from the State of Idaho....... 3
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 24
Bond, Hon. Christopher S., U.S. Senator from the State of
Missouri....................................................... 27
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode
Island......................................................... 30
Cardin, Hon. Benjamin L., U.S. Senator from the State of
Maryland....................................................... 46
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 46
WITNESSES
Hill, David R., Nominated to be Assistant Administrator (General
Counsel) for the Environmental Protection Agnecy............... 4
Prepared statement........................................... 6
Responses to additional questions from:
Senator Boxer............................................ 7
Senator Cardin........................................... 21
Senator Inhofe........................................... 22
HEARING ON THE NOMINATION OF DAVID R. HILL TO BE ASSISTANT
ADMINISTRATOR (GENERAL COUNSEL) FOR THE ENVIRONMENTAL PROTECTION AGENCY
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TUESDAY, APRIL 10, 2008
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The full committee met, pursuant to notice, at 9 a.m. in
room 406, Dirksen Senate Office Building, Hon. Barbara Boxer
(chairman of the full committee) presiding.
Present: Senators Boxer, Inhofe, Barrasso, Bond, Cardin,
Carper, Craig, and Whitehouse.
OPENING STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. The Committee will come to order.
We are here today to consider the nomination of Mr. David
Hill to be EPA's General Counsel. The General Counsel is EPA's
legal conscience, a vital internal check. That check is
supposed to ensure that EPA follows the law and fulfills its
mandate.
When EPA was created, President Nixon said it should be ``a
strong independent agency that established and enforced
environmental protections and assisted others in combating
pollution.''
In its first 30 years, Democrats and Republicans worked
together to support EPA's progress in cleaning up our Nation's
air, water and other resources. EPA's programs were improving
the quality of our environment and helping to protect our
children from deadly diseases caused by pollution.
I am very distressed to say that EPA today is a shadow of
its former self. Our Nation's most important independent
protector of public health and the environment has turned into
an agency that sadly has not followed the law. This has been
pointed out by multiple judges liberal, moderate and
conservative.
Let me tell you about a few of the recent court decisions
that have found EPA's actions in violation of the law. In New
York v. EPA in 2006, the D.C. Circuit Court said that EPA's
approach to the law would make sense only in a Humpty Dumpty
world. In New Jersey v. EPA this past February, the same court
overturned EPA's rule seeking to weaken controls on mercury
emissions, saying ``EPA's explanation deploys the logic of the
Queen of Hearts, substituting EPA's desires for the plain text
of the Clean Air Act.''
In Mossville Environmental Action Now v. EPA in 2004, the
D.C. Circuit rejected EPA's attempt to exempt whole categories
of toxic pollutants which it said violated EPA's ``clear
statutory obligation to set emissions for each listed hazardous
air pollutant.''
Sadly, there are many more examples and I will place in the
record, without objection, a list of these cases which is
astounding. We have a long list of court decisions where EPA
actions have been overturned. It is a remarkable record of
losses, especially for an agency that has always been given
great deference by the courts.
Today, we face serious environmental problems that threaten
our children's and family's health and the very future of our
planet. I do have concerns and questions about the nominee
before us today. His past work for polluting industries raises
issues. In addition, his participation while at DOE in
developing the EPA mercury rule that the court overturned and
his work on the EPA rule that weakened air pollution controls
for power plants that was also reversed by the court raises
significant questions.
I also have concerns about his advocacy for the deeply
flawed Yucca Mountain nuclear waste disposal facility and about
some of his work on high-level nuclear waste tanks at DOE
sites.
Being nominated to serve as the legal conscience of an
agency is a very important responsibility. EPA's next General
Counsel should have a track record of working to increase
protections and open up government, and a demonstrated capacity
to stand up to those who advocate ignoring the law.
I hope you understand, Mr. Hill, that my comments are not
meant to be personal. They are just based on the record. So I
plan to ask Mr. Hill to respond to my concerns.
Senator Craig.
[The prepared statement of Senator Boxer follows:]
Statement of Hon. Barbara Boxer, U.S. Senator
from the State of California
We are here to consider the nomination of Mr. David Hill to
be the Environmental Protection Agency's General Counsel.
The General Counsel is EPA's legal conscience, a vital
internal check who is supposed to ensure that EPA follows the
law and fulfills its mandate.
When EPA was created, President Nixon said it should be a
strong, independent agency that established and enforced
environmental protections and assisted others in combating
pollution.
In its first 30 years, Democrats and Republicans worked
together to support EPA's progress in cleaning up our nation's
air, water, and other resources. EPA's programs were improving
the quality of our environment and helping to protect our
children from deadly diseases caused by pollution.
However, I am distressed to say that EPA is a shadow of its
former self; our nation's most important independent protector
of public health and the environment is an agency that does not
follow the law, as has been pointed out by multiple judges
liberal, moderate and conservative.
Let me tell you about just a few of the recent Court
decisions that have found EPA's actions in violation of the
law: In New York v. EPA, in 2006, the D.C. Circuit Court said
that EPA's approach to the law would make sense only in a
Humpty Dumpty world.
In New Jersey v. EPA, this past February, the same court
overturned EPA's rule seeking to weaken controls on mercury
emissions, saying: EPA's "explanation deploys the logic of the
Queen of Hearts, substituting EPA's desires for the plain text"
of the Clean Air Act.
In Mossville Environmental Action Now v. EPA, in 2004, the
D.C. Circuit rejected EPA's attempt to exempt whole categories
of toxic pollutants, which it said violated EPA's "clear
statutory obligation to set emissions for each listed
[hazardous air pollutant]".
Sadly, there are many more examples. We have a long list of
court decisions where EPA actions have been overturned. This is
a remarkable record of losses, especially for an agency that is
given great deference in the courts.
Today, we face serious environmental problems that threaten
our children's and families health and the very future of our
planet. I have concerns and questions about this nominee. Mr.
Hill's past work for polluting industries raises issues. In
addition, his participation while at DOE in developing the EPA
mercury rule that the court overturned, and his work on the EPA
rule that weakened air pollution controls for power plants, and
that was also reversed by the court, raise significant
questions.
I also have concerns about his advocacy for the deeply
flawed Yucca Mountain nuclear waste disposal facility, and
about some of his work on high level nuclear waste tanks at DOE
sites. Being nominated to serve as the legal conscience of an
agency is a important responsibility. EPA's next General
Counsel should have a track record of working to increase
protections and open up government, and a demonstrated capacity
to stand up to those who advocate ignoring the law. I plan to
ask Mr. Hill to respond to my concerns.
OPENING STATEMENT OF HON. LARRY CRAIG,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Craig. Madam Chairman, thank you.
I came early because I have to leave very quickly, but I
did want to be here in support of David. Let me say that I have
had a personal working relationship with him.
Madam Chair, I would like you to listen to this. Thank you.
Senator Boxer. I will. I am just trying to figure out
something.
Senator Craig. All right. Go right ahead.
Senator Boxer. All right.
Senator Craig. Thank you.
We have a national nuclear laboratory in Idaho and a
substantial amount of buried waste. We also have waste tanks
that were used in a waste management process. I must tell you
that in my work with David he has been diligent and responsible
to the law and to the responsibility of the Nation and very
responsive to our State.
Our State and its attorneys and its appointed people who
monitor this very closely have had a good working relationship
with him. Clean-up is on schedule and on time. Milestones have
been met. And here is a person who has been involved in that,
and very sensitive to it and responsible in part for it. So I
think it is important that the record show that.
I think as somebody who has probably monitored Yucca
Mountain since the day the first rotary drill went in the side
of the mountain, when you speak of a deeply flawed involvement,
you speak, only of an opinion that is expressed by some versus
opinions that are expressed by others, that the mountain is
stable, sound, geologically capable of doing what it was
intended to do.
It is the politics of this issue, in my opinion as somebody
who has monitored it very closely, and not the science of it
that will make the determination as to its credibility or lack
thereof. David has been in my opinion no part of that and DOE
has handled it responsibly. We now move to a licensing process
for the mountain. It will have to stand on its own credibility
with a very critical agency--the Nuclear Regulatory Commission.
We will find out whether it stands the test of politics or it
stands the test of science. That really is the issue.
Beyond that, I thank you for recognizing that these are
issues that spiral around anyone, but it is the individual we
ought to look at and his or her capability to the position
nominated. I must tell you if you are frustrated about EPA and
how it is or is not being operated, I would suggest that if you
look at David's record, there is only one conclusion you can
draw from his professional capabilities. That is, he will bring
responsibility and integrity to the office that he is being
asked to serve in.
Thank you very much, Madam Chair.
Senator Boxer. Thank you so much, Senator. And believe me,
we will take it to heart.
I will start with some questions. This may be a brief
hearing.
Yes, let's do the statement.
STATEMENT OF DAVID R. HILL, NOMINATED TO BE ASSISTANT
ADMINISTRATOR (GENERAL COUNSEL) FOR THE ENVIRONMENTAL
PROTECTION AGENCY
Mr. Hill. Thank you, Madam Chairman.
Senator Boxer. By the way, how much time do you want for
your statement? Will 7 minutes do it?
Mr. Hill. That will be more than enough.
Senator Boxer. OK. We will give you 7 minutes and you can
have what you need.
Mr. Hill. Madam Chairman and members of the Committee, I am
honored to appear before you today as the President's nominee
to be General Counsel of the Environmental Protection Agency. I
thank the Committee and the Chairman for holding this hearing
to consider my nomination. I also thank the President for
nominating me for this position.
I would like to introduce my wife Kristina who is with me
at today's hearing. I also would like to introduce two of our
daughters, Anna who is 8 years old and is in third grade, and
Margaret, who is 5 years old and is in kindergarten. We decided
that our third daughter, Julia, who is 3 years old might enjoy
her preschool class today more than this hearing, so she is not
here with me this morning.
Senator Boxer. So would I.
[Laughter.]
Mr. Hill. I want to thank all of them for the joy and the
support they give me each day.
Since August, 2005, I have served as General Counsel of the
U.S. Department of Energy. I served as the department's Deputy
General Counsel for Energy Policy from 2002 until the Senate
confirmed me as DOE's General Counsel. Before 2002, I was in
private practice with Wiley, Rein and Fielding and Wilmer,
Cutler and Pickering here in Washington and with the Blackwell
Sanders firm in Kansas City, Missouri. I also served on the
staff of the House of Representatives Committee on Agriculture.
While at DOE, I have worked closely with Secretary Bodman
and other department officials to advance the department's work
in its four main mission areas of energy, science,
environmental management, and national defense. I have handled
legal matters and have supervised attorneys working in all of
these areas. It has been and continues to be a real privilege
and a real honor for me to work for Secretary Bodman and with
other officials at the department.
EPA's primary mission is to protect public health and the
environment. If confirmed as the agency's General Counsel, I
would seek to help the Administrator and other agency officials
develop regulations and make decisions that will advance that
mission and be sound and defensible both legally and from the
policy perspective. My experience at another Federal agency
would help me do that.
I have been a practicing lawyer for almost 20 years, and
over time have worked for different clients with different
perspectives and different viewpoints. I believe I could
successfully make the transition from DOE to EPA and could use
my knowledge and experience to help advance EPA's work.
One way in which my prior experience would be useful is
that I have worked extensively with senior government officials
throughout the Administration and have worked to help craft
solutions to difficult problems that often involve competing
arguments and viewpoints. I believe I could do the same at EPA.
At DOE, I also have managed and have worked with a large
staff of attorneys, virtually all of whom are career Federal
employees. Every day, I rely on their expertise and judgment,
and they have my deepest respect and admiration. I hope I have
earned their respect as well, as being a General Counsel who
works hard, evaluates the law carefully, and works toward
solutions that best advance the department's mission.
If confirmed as EPA's next General Counsel, I would look
forward to working very closely with the career attorneys at
EPA and I would rely heavily on their expertise and judgment.
While I am aware of some of the legal matters and other
challenges currently pending before EPA, I of course am not
familiar with all of them. If I am confirmed, I anticipate that
one of my first actions at EPA would be to meet individually
with each of the Deputy General Counsels and Associate General
Counsels to learn more about the issues on which they are
working and how I might assist them in addressing those issues.
Madam Chairman and members of the Committee, I recognize
that the work of EPA often is controversial. From my experience
at DOE, I know that when presented with competing arguments and
viewpoints it is difficult, if not impossible, for a decision
to be made that makes everyone happy. Nevertheless, I assure
you that if I am confirmed as EPA's General Counsel, I would do
my best to help advance EPA's mission of protecting human
health and the environment in a manner that considers all views
and opinions, complies with the law, and serves the public
interest.
At DOE, I have sought to do that by dealing with everyone
fairly and by respectfully considering competing arguments and
viewpoints. I would do the same at EPA if confirmed as that
agency's General Counsel.
It would be an honor for me to serve as EPA's General
Counsel at this time when so many challenging issues are
presented to the country and to EPA. As both a lawyer and as
the father of three young children, I would consider it a
privilege to serve in this position and work to protect the
health, environment and welfare of all Americans in a manner
that is both faithful to the law and faithful to the trust
placed in me.
Madam Chairman, that concludes my prepared statement. Thank
you again for holding this hearing today. I would be glad to
answer the Committee's questions at this time.
[The prepared statement of Mr. Hill follows:]
Statement of David R. Hill Nominated to be Assistant Administrator and
(General Counsel) for the Environmental Protection Agency
Madam Chairman, Senator Inhofe, and members of the
Committee, I am deeply honored to appear before you today as
the President's nominee to be an Assistant Administrator and
General Counsel of the United States Environmental Protection
Agency. I thank the Committee for holding this hearing today to
consider my nomination. I also thank the President for
nominating me for this position.
My wife Kristina is here with me today, along with our
three beautiful daughters--Anna who is 8, Margaret who is 5,
and Julia who is 3. I want to thank all of them for their
patience and support, particularly during my 6 years of service
at DOE, when the hours often have been long and I have not been
able to spend as much time with them as I, or they, have
wanted. I also thank my parents, Ronald and Shirley Hill, for
the support and the opportunities they gave me growing up in
Smithville, Missouri, and which allowed me to be here today.
I currently serve as General Counsel of the United States
Department of Energy. I was confirmed by the Senate and
appointed by the President to that position almost 3 years ago,
and have served as DOE's General Counsel since August 2005.
From March 2002 until I became the General Counsel, I served as
DOE's Deputy General Counsel for Energy Policy. Before coming
to the Department in March 2002, I spent most of my career in
private practice, with Wiley, Rein & Fielding and Wilmer,
Cutler & Pickering in Washington, DC, and with the Blackwell
Sanders firm in Kansas City, Missouri.
As the Department of Energy's General Counsel, I am
professionally responsible for the work of more than 250
attorneys throughout the country, and I directly supervise a
staff of about 150 Federal employees in Washington. I work on
the broad range of legal and policy matters that come before
the Department, and often represent DOE in discussions or
negotiations with colleagues in other executive branch agencies
as the Administration considers significant rulemakings or
policy matters. I also work with Members of Congress and their
staffs on matters affecting the Department and its programs--in
the Senate, particularly with the staff of the Energy and
Natural Resources Committee and the Appropriations Committee.
If confirmed as EPA's General Counsel, I would look forward to
working with this Committee and its staff on the many important
matters that come before the agency.
During my almost 20 years as a practicing lawyer, much of
my work has been devoted to matters that have had significant
energy or environmental components. Energy and environmental
issues often are intertwined, both in terms of law and policy.
As a result, both at DOE and in private practice I often have
had the occasion to consider and evaluate both energy and
environmental issues with respect to particular matters. If I
am confirmed as EPA's next General Counsel, I believe this
perspective would be useful as I seek to help the agency
advance its mission of protecting human health and the
environment in a manner that fully complies with the law.
Moreover, while I obviously am not familiar with all of the
matters currently pending before the EPA General Counsel's
Office, I have a substantial amount of experience managing the
general counsel's office of an executive branch agency, whose
lawyers cover a very broad range of disciplines and substantive
areas. I believe this experience would help enable me to
effectively carry out the duties of the EPA General Counsel and
to manage the legal work of that office.
I am fully aware that EPA and its Office of the General
Counsel often handle issues that are controversial and on which
there may be significant disagreements. If confirmed as EPA's
General Counsel, I believe I could work effectively in that
situation, and could help address issues in a manner that
serves the public interest.
During my 6 years at DOE and particularly during my time as
General Counsel, there have been many times that I have been
engaged in the vigorous internal debate that often precedes the
Administration or the Department making a particular decision.
The public almost never sees this debate, but I have been a
part of it many, many times. As I have participated in these
discussions, I have worked extensively with both career and
non-career attorneys and other officials at the Department of
Energy and throughout the Government, as well as with non-
governmental parties. I believe that in those dealings, I have
earned the reputation of being careful and considerate of all
viewpoints, of working hard, and of making and evaluating
arguments on their legal, technical and policy merits. I try to
deal with everyone fairly and respectfully, and seek to
evaluate and address arguments and issues so that I can make
decisions, or advise the Secretary of Energy and other senior
officials about their decisions, in a manner that complies with
the law and best serves the public interest.
In all of these matters, I view myself as being responsible
not simply for presenting issues, problems or analyses, but
also for presenting solutions. I encourage the attorneys in
DOE's Office of the General Counsel to approach their work in
the same way. I believe that attorneys often can be uniquely
helpful in crafting solutions to problems in a way that
complies with the law while addressing the concerns of
interested parties. If confirmed as EPA's General Counsel, I
would hope to bring this same sense of purpose to my work at
EPA.
The Congress, the President and the American people have
entrusted the Environmental Protection Agency with the
difficult and vitally important mission of protecting and
safeguarding human health and the environment. If confirmed as
EPA's General Counsel, I would do my best to help advance that
mission in a manner that fully complies with the law and best
serves the public interest. As a lawyer and as a senior
Government official, it would be a great honor for me to serve
in this position at this time, when so many challenging issues
are presented to the country and to the EPA. As the father of
three young children who will live for many decades with the
consequences of decisions we make today, it would be my
privilege and my duty to do what I can to effectively advance
EPA's mission in a manner that is faithful to the law and to
the trust that has been placed in both the EPA and in me.
I want to again thank President Bush and Administrator
Johnson for the trust they have expressed in me by nominating
me for this position. I thank the Committee for holding this
hearing and considering my nomination to be EPA's next General
Counsel. It would be an honor and a privilege for me to serve
the American people in this position.
Madam Chairman, that concludes my prepared statement. I
would be glad to answer the Committee's questions at this time.
Responses of David R. Hill to Additional Questions
from Senator Boxer
Question 1a. In April 2007 the V.S. Supreme Court held in
Massachusetts v. EPA that greenhouse gases (GHGs) are
``pollutants'' under the Clean Air Act and subject to
regulation by EPA.
Have you participated in any EPA discussions, reports,
rulemakings (including proposed, final, and advanced notices of
proposed rulemaking) or other activities concerning GHGs?
Describe in detail all such activities and the nature of your
involvement in each.
Response. On May 14, 2007, and in response to the Supreme
Court's decision in the Massachusetts v. EPA case, the
President issued Executive Order 13432, which concerned
cooperation among Federal agencies, including the Environmental
Protection Agency (EPA) and the Department of Energy (the
Department, or DOE), in protecting the environment with respect
to greenhouse gas emissions from motor vehicles or the use of
motor vehicle fuels, including alternative fuels. Among other
things, that Executive Order requires the agencies to
coordinate with each other on certain regulatory actions ``to
ensure the coordinated and effective exercise of the agencies
to protect the environment with respect to greenhouse gas
emissions from motor vehicles, nonroad vehicles, and nonroad
engines, in a manner consistent with sound science, analysis of
benefits and costs, public safety, and economic growth.'' That
same day, and in recognition of the Supreme Court's decision in
the Massachusetts v. EPA case, the President also directed EPA,
DOE, and the Departments of Transportation and Agriculture to
take the first steps toward regulations that would cut gasoline
consumption by motor vehicles, using the President's 20 in 10
plan ``as a starting point.'' Following the issuance of the
Executive Order and the President's direction about agency
actions, I participated on behalf of the Department of Energy
in a number of interagency meetings concerning how the Federal
Government should respond to the Supreme Court's decision.
These meetings concerned potential regulatory actions and
related reports by EPA, as well as by other agencies. In
addition, several years ago when I was DOE's deputy general
counsel for energy policy, I participated in some interagency
and internal DOE discussions concerning EPA's decisions whether
it could or would regulate C02 emissions under the Clean Air
Act. During those meetings and discussions, I represented the
Department of Energy and expressed the Department's views on
relevant policy or legal matters.
Question 1b. Other than materials already placed in any
public rulemaking docket, provide copies of all documents in
DOE's or your possession or control relating to your
involvement in such activities. (For purposes of these
requests, ``documents'' include all memos, e-mails, phone logs,
calendar entries, notes, and other agency records.)
To the best of my knowledge, I have no documents in my
possession or control relating to my involvement in the
activities described in response to question 1a. For purposes
of this response, what is in my possession or control refers
only to what is in my possession or control in my personal
capacity. I do not, in my personal capacity, have possession of
or control over any official Department of Energy documents or
records.
Question 2a. The regulatory docket for EPA's New Source
Review rule on Routine Maintenance, Repair and Replacement
(Docket OAR-2002-0068) (NSR Rule) includes handwritten edits,
comments and inserts that you submitted to EPA.
What role did you play relating to the development of the
policies reflected in the NSR Rule?
Response. In 2002, EPA issued a notice of proposed
rulemaking concerning the routine maintenance, repair and
replacement (RMRR) exclusion to New Source Review requirements.
In 2003, EPA issued a final RMRR rule. The President's National
Energy Policy, which was developed in early 2001 and issued in
May 2001 (before I was appointed to a position in the
Department of Energy), called for efforts to ``provide
regulatory certainty to allow utilities to make modifications
to their plants without fear of new litigation.'' Furthermore,
it recommended that EPA, in consultation with other agencies,
review NSR regulations and report back to the President ``on
the impact of the regulations on investment in new utility and
refinery generation capacity, energy efficiency, and
environmental protection.'' Subsequently, in June 2001, EPA
issued a background paper that reviewed the NSR program, and in
June 2002, EPA sent to the President a report concerning the
NSR program; that report contained some conclusions concerning
needed improvements to the NSR program, including that changes
to the program to improve the clarity and scope of the RMRR
exclusion would be desirable.
I joined the Department of Energy in March 2002, as deputy
general counsel for energy policy; prior to that time I was
engaged in the private practice of law. I played no part in the
development of the 2001 National Energy Policy or in the June
200 I EPA background paper concerning the NSR program. To the
best of my recollection, I also did not play any part in the
development of EPA's June 2002 report to the President
concerning the NSR program. Again to the best of my
recollection, my involvement with the RMRR regulations began in
late summer 2002, when I participated along with other DOE
personnel in reviewing, during the interagency review process,
the draft RMRR notice of proposed rulemaking that had been
prepared by EPA. I also participated in the interagency review
process leading up to EPA's issuance of the final RMRR
regulations in August 2003. My involvement in those processes
was premised on the policy choices that had been made by others
as to the direction of and policy objectives to be pursued in
the RMRR regulations. During those meetings and discussions, I
represented the Department of Energy and expressed the
Department's views on relevant policy or legal matters, and to
the best of my recollection, I was neither asked nor did I
volunteer my personal opinion as to the policy direction and
policy objectives being pursued.
Question 2.b Were you in support of the policies reflected
in the NSR Rule? If so, describe in detail the reasons why you
supported it.
Response. The Department of Energy generally supported the
policy objectives that were advanced by EPA in the RMRR
regulations that EPA proposed in 2002 and finalized in 2003. My
participation in the interagency process involved representing,
along with other Department officials, DOE's energy policy
concerns. I do not recall developing or expressing a personally
held view as to the policies reflected in the RMRR regulations,
or as to the legal judgment by EPA that its course of action
was legally permissible. It is possible I did so, but if so I
do not recall it.
Question 2c. Other than materials placed in any public
rulemaking docket, provide copies of all documents in DOE's or
your possession or control relating to your involvement in each
of these matters.
Response. To the best of my knowledge, I have no documents
in my possession or control that are responsive to this
request. For purposes of this response, what is in my
possession or control refers only to what is in my possession
or control in my personal capacity. I do not, in my personal
capacity, have possession of or control over any official
Department of Energy documents or records.
Question 2d. In addition to submitting the written comments
on the NSR Rule to EPA included in the docket, did you
participate in meetings or calls with Bill Wehrum or others at
EPA regarding the rule, or did you in any other way provide
views or input on the substance of the NSR Rule through
meetings, calls, or otherwise?
Response. As noted in response to Question 2.a., part of my
work as deputy general counsel for energy policy at DOE
involved participation in the interagency review process for
various regulations, including EPA's proposed and final
rulemakings on the RMRR regulations. That participation
included meetings or calls with Bill Wehrum--a senior official
in EPA's Office of Air and Radiation and whose official duties
included work on the RMRR regulations--and others at EPA
regarding the proposed RMRR regulations that EPA issued in
2002, and the final regulations that the agency issued in 2003.
Question 2e. If you do not have records relating to
particular instances of participation, then provide your best
recollection of content of any such participation, including
but not limited to (a) the issues discussed at each meeting,
conversation, or exchange of information, and (b) the dates or
over what time period they occurred.
Response. I do not have a specific recollection of
particular interagency meetings or particular conversations
during the interagency review process for the proposed and
final RMRR regulations. That activity took place approximately
five or six years ago, from about mid-2002 until EPA issued the
final RMRR regulations in 2003. Both in the interagency review
process as well as in discussions internally at DOE among
Department personnel, I believe that at various times those
discussions likely covered the range of energy policy issues
addressed in EPA's notice of proposed rulemaking and notice of
final rulemaking on the RMRR regulations.
Question 2f. Did you harbor or express any concerns about
the legal risks associated with the statutory interpretations
advanced by EPA in this rulemaking? If so, what were those
concerns and how did you express them?
Response. At various points during the interagency review
process for EPA's proposed and final RMRR regulations, I recall
that there were discussions concerning the legal grounding for
the regulations, and concerning the preamble explanation for
the regulations. I, and I believe other executive branch
officials participating in the interagency review process,
understood and discussed that, despite favorable Supreme Court
guidance in the Court's decision in Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
concerning deference to an agency's interpretations in its
rulemaking activities of a statute the agency is charged by law
to implement, there could be legal challenges to the final
rules, and understood that there were legal risks associated
with the regulations. I do not recall specific times, dates or
content of particular discussions on those matters, but I do
remember generally that discussions on those topics occurred.
And, of course, there was a public discussion of legal bases
for the proposed and final regulations set forth in the
preambles for the proposed and final RMRR regulations, and I am
sure that I participated in discussions on that text, though
again I do not recall specific dates or times.
Question 2g. Do you believe that the legal interpretation
advanced by EPA in the NSR rule were defensible? Did you
believe that those legal interpretations would prevail? Do you
agree with the D.C. Circuit's decision in New York v. EPA, 443
F.3d 880 (D.C. Cir. 2006), including the Court's statutory
interpretations and its treatment of EPA's legal arguments?
Response. At the time the proposed and final RMRR
regulations were issued by EPA, I was DOE's deputy general
counsel for energy policy, and I do not remember being called
upon to offer a personally held view on the legal defensibility
of those regulations. I also do not recall formulating a
personally held view as to their legal defensibility, or about
the probability of EPA prevailing in litigation if the
regulations were challenged. As noted in response to earlier
questions, however, I did participate on DOE's behalf in some
discussions on legal and policy aspects of those regulations,
and represented the Department and expressed DOE's views on
relevant policy or legal matters. As to the question of whether
I agree with the decision of the U.S. Court of Appeals for the
D.C. Circuit in the case of New York v. EPA, 443 F.3d 880 (D.C.
Cir. 2006), which concerned the EPA's RMRR regulations, I have
not evaluated the decision for the purpose of deciding whether
I personally agree or disagree with the Court. Rather, I have
reviewed the opinion to understand the Court's decision and its
reasoning, for purposes of guiding future action.
Question 2h. Did you play any role in the administration's
discussions and decisions to seek rehearing en bane of the D.C.
Circuit's ruling, or to submit a petition for a writ of
certiorari to the Supreme Court, in New York v. EPA? If so,
please describe your role.
Response. In my role as general counsel of the Department
of Energy, I did participate in interagency discussions
concerning whether the United States should seek rehearing of
the decision of the U.S. Court of Appeals for the District of
Columbia Circuit in New York v. EPA, 443 F.3d 880 (D.C. Cir.
2006), and concerning whether the United States should submit a
petition for a writ of certiorari to the Supreme Court with
respect to that decision. I had no decisionmaking authority
with respect to either decision, as the Office of the Solicitor
General at the Department of Justice has the authority to
decide whether to seek rehearing and whether to file a petition
for a writ of certiorari with the Supreme Court.
Question 3a. The regulatory dockets for EPA's mercury rules
(Docket OAR-2002-0056 and legacy Docket ID No. A-92-55)
(``Mercury Rules'') include handwritten edits, comments and
inserts that you submitted on EPA's draft mercury rule
proposal. Your comments were submitted by facsimile and e-mail
to Bill Wehrum at EPA in December 2003.
What role did you play relating to the development of the
policies and legal interpretations reflected in the Mercury
Rules?
Response. I joined the Department of Energy in March 2002,
as deputy general counsel for energy policy, and prior to that
time was engaged in the private practice of law. I did not
participate in the development of the 2001 National Energy
Policy, which among other things called for an approach to
pollutant emissions that ``would establish a flexible, market-
based program to significantly reduce and cap emissions of
sulfur dioxide, nitrogen oxides, and mercury from electric
power generators.'' This multi-pollutant approach to air
pollution controls subsequently developed particularly in the
form of the Administration's Clear Skies initiative, which I
believe was announced in February 2002. I did not play any part
in the development of that legislative initiative.
To the best of my recollection, my involvement with the
proposed and final Revision of the December 2000 Regulatory
Finding concerning the listing of coal--fired and oil-fired
electric utility steam generating units under section 112 of
the Clean Air Act, and the rule setting performance standards
pursuant to section III of the Clean Air Act for new coal-fired
electric utility steam generating units and establishing a
voluntary cap and trade program for new and existing coal-fired
units (together, the ``Clean Air Mercury Rule'' or ``CAMR''),
which were proposed by EPA in December 2003 and finalized in
March 2005, began in 2003 when I participated along with other
DOE personnel in reviewing, during the interagency review
process, the draft notice of proposed rulemaking that had been
prepared by EPA. I participated in that interagency review
process on the proposed rulemaking, as well as the interagency
review process leading up to the issuance of the final
rulemaking in 2005, and EPA's final action on reconsideration
issued in May 2006. My involvement in those processes was
premised on the policy choices that had been made by others as
to the direction of and policy objectives to be pursued in
CAMR. During those meetings and discussions, I represented DOE
and expressed the Department's views on relevant policy or
legal matters. To the best of my recollection, I was neither
asked nor did I volunteer my personal opinion as to that
direction and those policy objectives.
Question 3b. Were you in support of the policies and legal
interpretations reflected in the Mercury Rules? If so, describe
in detail the reasons why you supported them.
Response. The Department of Energy generally supported the
policy objectives that were advanced by EPA in the Clean Air
Mercury Rule proposed in 2003 and finalized in 2005. CAMR would
have reduced utility mercury emissions by nearly 70 percent
from 1990 levels. When issuing CAMR, the EPA noted that the
rule marked the first time the United States ever had regulated
any level of mercury emissions from power plants.
My participation in the interagency review process involved
representing, along with other Department officials, DOE's
energy policy concerns. I do not recall developing or
expressing a personally held view as to the policies reflected
in CAMR, or as to the legal judgment by EPA that its course of
action was legally permissible. It is possible I did so, but if
so I do not recall it.
Question 3c. In addition to submitting written comments on
the Mercury Rules to EPA, did you participate in meetings or
calls with Mr. Wehrum or others at EPA regarding the rule?
Response. As noted in response to question 3a., part of my
work as DOE's deputy general counsel for energy policy, and
subsequently as the Department's general counsel, involved
participation in the interagency review process for various
regulations, including the EPA's proposed and final rulemaking
actions on the Clean Air Mercury Rule. That participation
included meetings or call with Bill Wehrum--then a senior
official in EPA's Office of Air and Radiation and whose
official duties included work on the Clean Air Mercury Rule--
and others at EPA regarding the proposed and final regulations
issued by EPA in 2003 and 2005, respectively.
Question 3d. If you do not have records relating to
particular instances of participation, then provide your best
recollection of the content of any such participation,
including but not limited to (a) the issues discussed at each
meeting, conversation, or exchange of information, and (b) the
dates or over what time period they occurred.
Response. I do not have a specific recollection or personal
records of particular interagency meetings or particular
conversations during the interagency review process for the
proposed and final CAMR. That activity occurred several years
ago. Both in the interagency review process as well as in
discussions internally at DOE among Department personnel, I
believe that at various times those discussions likely covered
the range of energy policy issues addressed in EPA's notice of
proposed rulemaking and notice of final rulemaking on the Clean
Air Mercury Rule.
Question 3e Other than documents placed in any public
rulemaking docket, provide copies of all other documents in
DOE's or your possession or control relating to your
involvement in these matters.
Response. To the best of my knowledge, I have no documents
in my possession or control that are responsive to this
request. For purposes of this response, what is in my
possession or control refers only to what is in my possession
or control in my personal capacity. I do not, in my personal
capacity, have possession of or control over any official
Department of Energy documents or records.
Question 4a. Did you provide views or input on the
substance of the Mercury Rules during these meetings and calls?
What substantive views or input did you provide? Describe
in detail.
Response. See response to Question 3a.
Question 4b. Did you harbor or express any concerns about
the legal risks associated with the statutory interpretations
advanced by EPA in these rulemakings? If so, what were those
concerns and how did you express them?
At various points during the interagency review process for
EPA's proposed and final Clean Air Mercury Rule, I recall that
there were discussions concerning the legal grounding for the
regulations, and concerning the preamble explanation for the
regulations. I, and I believe other executive branch officials
participating in the interagency review process, understood and
discussed that, despite favorable Supreme Court guidance in the
Court's decision in Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), concerning
deference to agency interpretations in its rulemaking actions
of statutes that the agency is charged by law to implement,
there could be legal challenges to the final rules, and
understood that there were legal risks associated with the
regulations. I do not recall specific times, dates, or content
of particular discussions on those matters, but I do remember
generally that discussions on those topics occurred. And, of
course, there was a public discussion of legal bases for the
proposed and final regulations set forth in the preambles for
the proposed and final Clean Air Mercury Rule, and I am sure
that I participated in discussions on that text, though again I
do not recall specific dates or times.
Question 4c. Did any other lawyers in DOE's Office of
General Counsel submit edits, comments or inserts to EPA with
respect to the proposed Mercury Rules, at your direction or
with your knowledge or participation?
Response. I do not recall any other lawyers in DOE's Office
of the General Counsel submitting edits, comments or inserts to
EPA with respect to EPA's proposed Clean Air Mercury Rule, at
my direction or with my knowledge or participation. However,
there were non-lawyer professionals at the Department of
Energy, outside of the Office of the General Counsel, who did
so.
Question 4d. If so: (a) identify each such lawyer by name
and title and (b) State whether you reviewed such comments
prior to transmittal to or discussion with EPA.
Response. See response to Question 4c.
Question 4e. Other than materials placed in any public
rulemaking docket, provide copies of all documents in DOE's or
your possession or control relating to your involvement in
these matters.
Response. To the best of my knowledge, I have no documents
in my possession or control that are responsive to this
request. For purposes of this response, what is in my
possession or control refers only to what is in my possession
or control in my personal capacity. I do not, in my personal
capacity, have possession of or control over any official
Department of Energy documents or records.
Question 5a. Press articles reported that EPA included
within the Mercury Rule preambles verbatim passages and
similarly worded passages (``language'') apparently written or
supplied by a utility industry law firm, Latham & Watkins. EPA
says those documents--written as EPA preamble text--originated
from your office, DOE's Office of General Counsel. A December
10, 2003 email and attachment from DOE to EPA reveals that
Darlene Downing sent the Latham & Watkins language to EPA.
Did you provide Ms. Downing with the Latham & Watkins
language, or were you otherwise aware of this language?
Response. I am aware of Washington Post articles in 2004
that asserted that EPA had taken language from a document
prepared by the Latham & Watkins law firm and incorporated it
into EPA's December 2003 Clean Air Mercury Rule proposal.
However, to the best of my knowledge and recollection, I never
personally and knowingly took language from a document supplied
by Latham & Watkins and provided it to Darlene Downing, an
employee of the Department of Energy's Office of the General
Counsel in 2003, for transmission to EPA. Nor do I remember
ever instructing anyone else to do so or being aware that
anyone else at DOE had done so. Please also see the response to
Question 5c.
Question 5b. Did anyone else in the DOE General Counsel's
office provide Ms. Downing with the Latham & Watkins language?
I do not know whether anyone else in DOE's Office of the
General Counsel provided Ms. Downing with language taken from a
document supplied by Latham & Watkins. As stated in response to
Question 5.a., I do not remember instructing anyone else to
submit such language to Ms. Downing, nor do I remember being
aware that anyone else at DOE had done so.
Question 5c. Was it you that received the language directly
or indirectly from Latham & Watkins? If so, please describe the
circumstances of this receipt.
Response. At various times during my service as the
Department of Energy's deputy general counsel for energy
policy, and as DOE's general counsel, I have met with attorneys
from outside law firms, companies, public interest
organizations, trade associations, and other stakeholders, and
at some of those meetings have received materials supplied by
those entities. I do not specifically recall meeting with
attorneys from Latham & Watkins concerning EPA's CAMR, but it
is possible that I did so. I do recall having meetings with
Latham & Watkins attorneys, but do not remember the precise
topics. I also do not recall receiving any particular documents
from the Latham & Watkins attorneys or what those documents
might have addressed, but it is possible that I did receive
documents from them during the referenced meetings. Finally,
and as noted above in response to Question 5.a., to the best of
my knowledge and recollection, I never personally and knowingly
took language from a document supplied by Latham & Watkins and
provided it to Darlene Downing, an employee of the Department
of Energy's Office of the General Counsel in 2003, for
transmission to EPA.
Question 5d. If not, who else within the General Counsel's
office received it?
Response. Other than myself, I have no knowledge who if
anyone within the DOE General Counsel's Office may have met
with attorneys from Latham & Watkins concerning EPA's Clean Air
Mercury Rule, or who in the General Counsel's Office or in
other offices at DOE might have received any documents from
that firm.
Question 5e. Did you ask Ms. Downing to send the Latham &
Watkins language to EPA? If not, who else within the General
Counsel's office so instructed Ms. Downing?
Response. To the best of my knowledge and recollection, I
never instructed Ms. Downing to send to EPA any language that I
knew had been taken from a document supplied by Latham &
Watkins. I have no knowledge of anyone else in the General
Counsel's Office instructing Ms. Downing to send any language
or documents to the EPA concerning the EPA's mercury rule. I
note, however, that I was not the only person at DOE who
participated in the interagency review process with respect to
EPA's proposed and final Clean Air Mercury Rule. It is quite
possible that any language, edits or other materials submitted
by Ms. Downing to EPA was comprised of contributions and
materials written by or originating from more than one person
at DOE, including non-lawyer professionals.
Question 5f. Other than materials placed in any public
rulemaking docket, provide copies of all documents in DOE's or
your possession or control relating to this process and issue.
Response. To the best of my knowledge, I have no documents
in my possession or control that are responsive to this
request. For purposes of this response, what is in my
possession or control refers only to what is in my possession
or control in my personal capacity. I do not, in my personal
capacity, have possession of or control over any official
Department of Energy documents or records.
Question 6a. As of December 2003:
What position did Ms. Downing hold with DOE's Office of
General Counsel, what were Ms. Downing's responsibilities, and
to whom did she report?
Response. As of December 2003, Ms. Downing held the
position of Paralegal and Administrative Support Specialist
within DOE's Office of the General Counsel. Her duties
consisted of providing program and administrative support to
the organization and performing a variety of non-professional
functions to assist the staff. She reported to the deputy
general counsel for energy policy.
Question 6b. Did Ms. Downing have discretion to submit her
own comments or inserts to EPA without review or approval by a
lawyer within the General Counsel's office?
Response. During the time that I served as deputy general
counsel for energy policy and as Ms. Downing's direct
supervisor, I do not recall authorizing her to submit her own
comments or inserts to EPA without review or approval by a
lawyer within the Department's Office of the General Counselor
other appropriate Department of Energy official.
Question 6c. If not, who in the General Counsel's office
reviewed or approved the language submitted to EPA by Ms.
Downing? What role did you play in that process?
Response. During the time that I served as deputy general
counsel for energy policy and as Ms. Downing's direct
supervisor, I believe Ms. Downing would have submitted
information or language to the EPA with respect to a particular
rulemaking only in response to direction or authorization from
either me or another DOE official who she believed was
authorized to ask her to provide such information to EPA.
Question 6d. Were you aware that Ms. Downing was submitting
comments or inserts to EPA?
Response. See responses to Questions 5.a. and 6.c.
Question 6e. Provide copies of all documents in DOE's or
your possession or control relating to Ms. Downing's role in
this time period.
Response. To the best of my knowledge, I have no documents
in my possession or control that are responsive to this
request. For purposes of this response, what is in my
possession or control refers only to what is in my possession
or control in my personal capacity. I do not, in my personal
capacity, have possession of or control over any official
Department of Energy documents or records.
Question 7a. EPA officials have said that including the
language from Latham & Watkins in the preamble to the Mercury
Rule would not have been included this language had they known
it originated with an industry law firm. Do you believe that
inclusion of this language in the EPA preamble was
inappropriate?
Response. As stated in response to Question 5.a., I am
aware of Washington Post articles in 2004 that asserted that
EPA had taken language from a document prepared by the Latham &
Watkins law firm and incorporated it into EPA's December 2003
CAMR proposal. I recall meeting with attorneys from that law
firm at various times since I joined the Department of Energy
in March 2002, and while I do not recall the topics of those
meetings, it is possible that one or more of them concerned
EPA's proposed or final Clean Air Mercury Rule. However, and
also as noted in response to questions above, to the best of my
knowledge and recollection, I never personally and knowingly
took language from any Latham & Watkins document and proposed
it to EPA for inclusion in the CAMR notice of proposed
rulemaking, nor do I have any knowledge or recollection about
any other DOE employee doing so. Regardless, documents received
by an agency from outside groups representing parties
interested in particular agency actions--including individuals,
law firms, companies, public interest organizations, trade
associations, and other stakeholders--may be sources of useful
information for agency officials. I believe that if an agency
finds the language or reasoning in a document supplied by an
outside organization to be well-reasoned and persuasive, there
is nothing wrong with the agency considering and using language
or analysis in that document, particularly when the document
has been placed in the public docket for the agency action at
issue. Indeed, the purpose of receiving public comment on
proposed rules is so that agencies involved in the rulemaking
process can learn from non-governmental parties, and use that
information as they evaluate relevant policy, legal, technical
or scientific information to inform agency decisions.
Question 7b. Did you participate in meetings with lawyers
from the firm of Latham & Watkins, or any other private law
firm, relating to EPA regulation of air pollution (not limited
to mercury) during the period from 2002 through 2007? List all
such meetings that you attended. For each meeting, state: (a)
the attendees of the meeting, including all executive branch
personnel, by name and agency, and (b) the subject matter of
the meeting. Provide copies of all documents in your or DOE's
possession or control that were provided by Latham & Watkins or
any other law firm relating to EPA rulemaking during this
period, and provide all DOE documents that relate to any such
meetings.
At various times during my service as the Department of
Energy's deputy general counsel for energy policy and as DOE's
general counsel, I have met with attorneys from outside law
firms, companies, public interest organizations, trade
associations, and other stakeholders, concerning numerous
matters involving official DOE business, including the
interagency review of EPA regulations concerning air pollution.
I do not have records of all such meetings nor do I have a
complete recollection of all of those meetings, such that I
could create and supply the requested list of all such
meetings, all attendees of those meetings, and all subjects
discussed at such meetings.
With respect to the document request portion of this
question, to the best of my knowledge, I have no documents in
my possession or control that are responsive to this request.
For purposes of this response, what is in my possession or
control refers only to what is in my possession or control in
my personal capacity. I do not, in my personal capacity, have
possession of or control over any official Department of Energy
documents or records.
Question 8a. In February 2008, the D.C. Circuit overturned
the Mercury Rules.
Do you believe the court erred in its decision, including
the Court's statutory interpretations and its treatment of
EPA's legal arguments?
Response. On February 8, 2008, the U.S. Court of Appeals
issued an opinion in the case of State ofNew Jersey v. EPA, 517
F.3d 574 (D.C. Cir. 2008), in which the Court held that EPA's
removal of electric utility steam generating units from the
list under section 112 of the Clean Air Act violated the Act
``because section 112(c)(9) requires EPA to make specific
findings before removing a source listed under section 112,''
and EPA had not done so. Because these units therefore remain
listed under section 112, the Court stated that EPA could not
regulate existing coal-fired electric utility steam generating
units under section III of the Clean Air Act. Therefore, the
Court vacated both EPA's revision of its December 2000
regulatory finding concerning the listing of these units under
section 112, and also the performance standards that were
established pursuant to section III and the voluntary cap and
trade program for new and existing coal-fired units. I have not
evaluated the Court's February 8,2008, decision for the purpose
of deciding whether I personally agree or disagree with the
Court. Rather, I have reviewed the decision to understand the
Court's decision and its reasoning, for purposes of guiding
future action.
Question 8b. Do you believe that the legal interpretations
advanced by EPA were defensible? At the time of your
involvement with EPA's proposed and final Mercury Rules, did
you believe that those legal interpretations would prevail?
Response. At the time the proposed and final CAMR
regulations were issued by EPA, I was DOE's deputy general
counsel for energy policy, and my participation in the
interagency review process involved representing, along with
other Department officials, DOE's energy policy concerns. I do
not remember being called upon to offer a personally held view
on the legal defensibility of those regulations. I also do not
recall formulating a personally held view as to their legal
defensibility, or about the probability of EPA prevailing in
litigation if the regulations were challenged. It is possible I
did so, but if so I do not recall it. As noted in response to
earlier questions, however, I did participate on DOE's behalf
in some discussions on legal and policy aspects of those
regulations.
Question 8c. Did you play any role in the administration's
discussions and decisions to seek rehearing en bane of the D.C.
Circuit's mercury ruling? If so, please describe your role.
Other than materials placed in any public rulemaking docket,
provide copies of all documents in DOE's or your possession or
control relating to this matter.
Response. I played no role in the Administration's
discussions and decisions to seek rehearing en banc of the
February 8, 2008, decision of the U.S. Court of Appeals for the
D.C. Circuit in the case of State a/New Jersey v. EPA, 517 F.3d
574 (D.C. Cil. 2008), which concerned the EPA's Clean Air
Mercury Rule.
With respect to the document request portion of this
question, to the best of my knowledge, I have no documents in
my possession or control that are responsive to this request.
For purposes of this response, what is in my possession or
control refers only to what is in my possession or control in
my personal capacity. I do not, in my personal capacity, have
possession of or control over any official Department of Energy
documents or records.
Question 9a. You testified at the Nomination Hearing on
April 11 that you have been involved in issues relating to the
proposed Yucca Mountain nuclear waste repository.
Response. What role have you played while at DOE (2002-
present) with respect to the radioactive waste storage site at
Yucca Mountain and the shipping of radioactive waste from
around the country to this site?
As deputy general counsel for energy policy at DOE, my
responsibilities generally did not include matters relating to
the Yucca Mountain project. As a result, from the time I joined
the Department in March 2002 until I became DOE's general
counsel in August 2005, I had very limited involvement with
matters concerning the Yucca Mountain project or the shipping
of radioactive waste from around the country to that site.
Since becoming DOE's general counsel, I have participated in a
number of Department activities relating to the Yucca Mountain
project, including the following: participation in discussions
among senior DOE officials concerning various aspects of the
Yucca Mountain project; general supervisory responsibility for
the DOE lawyers performing work relating to the Yucca Mountain
project particularly in connection with the preparation of a
license application to file with the Nuclear Regulatory
Commission (NRC) relating to the repository; participation in
the selection of outside legal counsel to assist the Department
in connection with the NRC licensing proceeding for the Yucca
Mountain project; participation in the interagency review
process for the regulations that EPA must promulgate, pursuant
to the Energy Policy Act of 1992, setting a radiation standard
for the Yucca Mountain repository; and participation in the
development of and interagency review process for
Administration legislative proposals relating to the Yucca
Mountain project.
Question 9b. In your tenure with DOE has DOE supported the
Yucca Mountain project?
Response. In 2002, Congress passed and the President signed
a Joint Resolution, enacted as Public Law 107-200, which
approved the site at Yucca Mountain, Nevada for the development
of a repository for spent nuclear fuel and high level
radioactive waste, pursuant to the Nuclear Waste Policy Act of
1982 (NWPA). As a result of that approval, DOE is required by
law--specifically, section 114(b) of the NWPA-to prepare and
submit to the NRC a license application seeking authority to
construct the repository at Yucca Mountain. DOE has been
engaged in that effort since Public Law 107-200 was enacted in
July 2002. My work at DOE in connection with the Yucca Mountain
project has been in furtherance of this obligation which is
imposed by law upon the Department of Energy.
Question 9c. List and describe all activities you have been
involved in at DOE in support of the Yucca Mountain project.
Response. See response to Question 9.a.
Question 9d. Have you had any involvement in EPA's process
for setting standards for radioactive waste disposal at Yucca
Mountain? If so, describe in detail all of your activities
relating to those standards.
Response. During my time as DOE's general counsel, I have
at various points participated in the interagency review
process for the regulations that EPA must promulgate, pursuant
to the Energy Policy Act of 1992, setting a radiation standard
for the Yucca Mountain repository. My involvement has centered
on representing the Department of Energy as it seeks to carry
out its statutory obligations and policy objectives with
respect to the Yucca Mountain repository.
Question 9e. What role have you played in making
recommendations or providing comments to EPA, NRC, the White
House, or any other executive branch office or staff with
regard to the Yucca Mountain radiation standards?
Response. See responses to Questions 9.a. and 9.d.
Question 9f. In your opinion what approach should be taken
by EPA regarding Yucca Mountain radiation standards following
the D.C. Circuit's decision in Nuclear Energy Institute, Inc.
v. U.S. EPA, 373 F.3d 1251 (D.C. Circuit 2004).
Response. As I stated at my confirmation hearing before the
Environment and Public Works Committee on April 10, 2008, the
EPA radiation standard for Yucca Mountain is still under
consideration and has not yet been finalized, and as a result
it would be inappropriate for me to comment on the discussions
and deliberations within the Executive Branch on that matter at
this time.
Question 9g. You committed at your nomination hearing
before the EPW Committee on April 10, 2008, to determine what
documents exist reflecting DOE comments or views that you have
been involved with regarding EPA's approach to radiation
standards for Yucca Mountain. Provide a list of each such
document (including author, recipient(s), ccs, and subject
matter) and provide copies of all such documents to the
Committee.
Response. I have determined that there are official
Department of Energy documents that concern the ongoing
rulemaking activity with respect to the regulations that EPA
must promulgate, pursuant to the Energy Policy Act of 1992,
setting a radiation standard for the Yucca Mountain repository.
However, and as I stated at my confirmation hearing before the
Environment and Public Works Committee on April 10,2008, the
EPA radiation standard for Yucca Mountain is still under
consideration and has not yet been finalized, and as a result
it would be inappropriate to describe or address documents that
are the subject of those discussions and deliberations within
the executive branch on that matter at this time. Furthermore,
to the best of my knowledge, I have no documents in my
possession or control that are responsive to this request. For
purposes of this response, what is in my possession or control
refers only to what is in my possession or control in my
personal capacity. I do not, in my personal capacity, have
possession of or control over any official Department of Energy
documents or records.
Question 9h. In addition to the documents provided in
response to question (g) above, provide copies of all documents
in DOE's or your possession or control relating to your
involvement in the Yucca Mountain matter, other than materials
previously placed in any public rulemaking docket.
Response. See response to Question 9.g.
Question 10a. The fiscal year 0S Defense Appropriations
Bill included Section 3116, which modified requirements and
procedures for addressing disposal of radioactive waste from
DOE disposal sites. Section 3116 allowed DOE to ``reclassify''
high-level radioactive waste as ``waste incidental to
reprocessing,'' followed by shallow land disposal at those
sites.
Did DOE support Section 3116, and did DOE submit drafts of
Section 3116 to Congress?
Response. This question refers to section 3116 of the
``FY2005 Defense Appropriations Bill.'' I assume the question
is in error, because it was the fiscal year defense
authorization act that contained a section 3116 applicable to
waste incidental to reprocessing--specifically section 3116,
entitled Defense Site Acceleration Completion, in the Ronald W.
Reagan National Defense Authorization Act for FY 2005 (P.L.
108-375, enacted October 28, 2004). Section 3116 authorizes the
Secretary of Energy, in consultation with the NRC, to determine
that radioactive waste in tanks has been removed to the maximum
extent practical and the remaining residual material can be
safely disposed of by means other than deep geologic disposal.
During congressional consideration of the fiscal year
defense authorization act, I served as DOE's deputy general
counsel for energy policy, and my duties generally did not
include matters relating to treatment, removal or disposal of
radioactive waste at Department of Energy sites. As a result,
and to the best of my recollection, I did not have any role nor
did I participate in the Department of Energy's activities in
connection with Congress's consideration and ultimate passage
of section 3116 of the fiscal year defense authorization act. I
did hear some discussions concerning that matter, and believe
DOE did support section 3116. I also believe DOE officials may
have worked with Members of Congress on that provision, but I
do not have personal knowledge of who had what conversations
with Members of Congress or their staffs on that matter, or
what drafts or papers may have been submitted by DOE officials
to Members of Congress or their staffs concerning this issue.
Question 10b. Did DOE have meetings or conversations with
Members of Congress regarding Section 3116?
Response. See response to Question 10a.
Question 10c. Were you involved in any of the activities
relating to Section 3116 addressed in the questions above? If
so, describe in detail your role relating to those activities.
Response. See response to Question 10a.
Question 10d. Other than materials placed in any public
rulemaking docket, provide copies of all documents in DOE's or
your possession or control relating to your involvement in
these activities.
Response. To the best of my knowledge, I have no documents
in my possession or control that are responsive to this
request. For purposes of this response, what is in my
possession or control refers only to what is in my possession
or control in my personal capacity. I do not, in my personal
capacity, have possession of or control over any official
Department of Energy documents or records.
Question 11a. As part of Section 3116 and DOE's new
authority to reclassify high-level radioactive waste and
dispose of it at two DOE sites, Congress explicitly provided
for the NRC's monitoring role for the reclassified high-level
waste's compliance with low-level waste disposal objectives (10
CFR Part 61). On July 31,2006 you sent a letter to the Nuclear
Regulatory Commission (NRC) on behalf of DOE in which you said
that DOE did not agree with NRC's proposed Standardized Review
Plan under Section 3116 for consulting and monitoring of DOE's
management and disposal of reclassified high-level radioactive
waste. There are numerous press reports about the controversial
nature of Section 3116 and of disagreement between the NRC
Staff and DOE Staff over the respective roles of the two
agencies.
One of the major issues you raised in your letter of July
31, 2006 was that NRC wanted to make documents relating to its
consultation with DOE publicly available, and NRC felt its
meetings with DOE relating to this should be open to the
public. You disagreed with NRC's positions. The press reported
that DOE insisted on having closed door meetings to define the
scope of NRC's role, over NRC's objection. What is your
justification for wanting to shield such important matters from
public scrutiny?
Response. The letter that I, on behalf of the Department of
Energy, sent to the Nuclear Regulatory Commission (NRC) in July
2006 expressed concerns with certain aspects of the NRC's
proposed Standardized Review Plan and how it related to the
authorities granted by law to the Department of Energy pursuant
to section 3116 of the fiscal year defense authorization act.
The letter did not assert that all discussions between DOE and
NRC relating to the section 3116 process should occur in
``closed door meetings.'' Rather, the letter expressed DOE's
position that it would be appropriate for some discussions
between the agencies, concerning the section 3116 process, to
occur in a non-public setting. It is perfectly appropriate for
executive branch agencies to have discussions on some matters
in a non--public setting. In fact, even the Freedom of
Information Act itself contains an exemption from disclosure
for documents that are predecisional and deliberative or that
are developed for use during such deliberations. The
justification for the position stated in the July 2006 letter
is that it can promote free and frank discussion among
government officials if certain discussions are not made in
public. This is the substance of what I stated before the
Committee on Environment and Public Works, in response to
questions concerning this matter, during my confirmation
hearing on April 10, 2008.
Question 11b. Do yon believe that people have a right to
know what their government representatives are discussing when
it comes to leaving highly radioactive nuclear waste disposed
of in shallow land burial at DOE sites?
Response. I do not believe that any ``highly radioactive
nuclear waste'' should be ``disposed of in shallow land
burial,'' either at DOE sites or elsewhere. I have been
informed that the tank residue material subject to disposal
under section 3116 of the FY 2005 defense authorization act is
not highly radioactive, even though its process pedigree once
arguably made it ``high-level'' waste within the normal meaning
and understanding of what constitutes ``high-level''
radioactive waste.
Section 3116 authorizes DOE, in consultation with the NRC,
to classify tank waste residues at DOE's sites in South
Carolina and Idaho as other than high-level waste, upon making
certain determinations, including that the waste ``does not
require permanent isolation in a deep geological repository.''
These matters are highly technical and subject to the
specialized knowledge and expert judgment of DOE and the NRC. I
believe that the public generally has a right to know what the
Federal Government is doing with respect to the disposal of
radioactive waste at or in connection with DOE sites and
operations, but that does not mean it is productive or
appropriate for every single discussion among Federal officials
on that highly complex and technical subject to occur in
public, just as not all discussions among executive branch
officials or among Members of Congress, concerning matters of
great importance to the general public and to the welfare of
the Nation, occur in public. Finally, and while not required by
section 3116, I note that DOE has committed to make its draft
waste determinations pursuant to section 3116 available for
public comment and takes these public comments into account
before making final determinations.
Question 11c. 1In a letter by Scott Flanders of NRC dated
January 31, 2008, the NRC stated that there were seeps of
radioactive waste from a vault at the Savannah River Site in
the Saltstone Disposal Facility. On what date did you become
aware of any seeps of radioactive waste from these vaults?
Response. I have no personal knowledge of any seeps of
radioactive waste from the vaults containing saltstone that
exist at DOE's Savannah River Site. I am informed that this
general issue has been well known and a matter of public record
for a number of years. I also am informed that there are
monitoring protocols in place, corrective actions have been
taken, and design changes will be made to address these seeps.
I further am informed that DOE's Savannah River Site has
determined, and that the State of South Carolina agrees, that
there are no significant environmental or human health impacts
associated with any seeps from this Facility. Finally, I am
informed that disposal actions at the Savannah River Site's
Saltstone Disposal Facility are subject to routine oversight by
the South Carolina Department of Health and Environmental
Control under a state-issued industrial landfill permit and to
monitoring by the Nuclear Regulatory Commission pursuant to
section 3116. No legal issue has been brought to my personal
attention as the Department's general counsel in connection
with these issues or with the ongoing performance of the
vaults.
Question 11d. Did the DOE or you produce any internal
responsive material or analysis of the leaking vaults?
I have not created, reviewed or produced any internal
responsive material or analysis concerning any seeps or leaks
of radioactive waste from the vaults containing saltstone that
exist at the Savannah River Site. I have been informed that
analyses of the seeps have been completed by the Savannah River
Site and shared with the NRC and the South Carolina Department
of Health and Environmental Control during a recent NRC
monitoring. Other than this information and what is described
in response to Question 11c. above, I have no personal
knowledge whether anyone else at DOE has produced internal
responsive material or analysis concerning these seeps.
Question 11e. Has DOE provided that material for the NRC,
to the State of South Carolina, or to the National Academy of
Science's panel that undertook a review and study of the safety
of DOE's efforts to reclassify high-level radioactive waste?
Response. See response to Question IId.
Question 11f. Has DOE made any of its analysis of the
leaking vaults public in any way?
Response. As noted above, I have no personal knowledge of
any seeps of radioactive waste from the vaults containing
saltstone that exist at the Savannah River Site. I have not
created, reviewed or produced any materials concerning the
operation of the vaults, nor am I aware of whether any such
material exists that has been created by others, or if it
exists, whether anyone at DOE has made any of its analysis of
the vaults or their performance public in any way. I am
informed, however, that the general issue has been briefed to
the Savannah River Site's citizen's advisory board, and that
this matter is well known to State of South Carolina
regulators, non-governmental organizations, and the public. See
also responses to Questions 11c. and 11d.
Question 11g. Has the DOE or have you made a determination
whether the highly radioactive waste disposed of at the
Saltstone Disposal Facility is in compliance with the
performance objectives of 10 C.F.R. Part 61.41? On what basis
has DOE made that assessment?
Response. As stated in response to Question 11b., I am
informed that the material being disposed of at the Savannah
River Site pursuant to section 3116 of the fiscal year 5
defense authorization act is not ``highly radioactive.''
Regardless, to the best of my knowledge and recollection, I
have made no determination whether the waste disposed of at the
Saltstone Disposal Facility at DOE's Savannah River Site is in
compliance with the performance objectives of 10 C.F.R. 61.41.
I do not know whether or not anyone else at DOE has made such a
determination. I am informed, however, that the Saltstone
Disposal Facility is a low-level waste facility, and that no
high level radioactive waste is disposed of in the Facility.
Question 11h. Please provide all material, analysis, and
documents related to the leaking vaults in the Saltstone
Disposal Facility.
Response. To the best of my knowledge, I have no documents
in my possession or control that are responsive to this
request. For purposes of this response, what is in my
possession or control refers only to what is in my possession
or control in my personal capacity. I do not, in my personal
capacity, have possession of or control over any official
Department of Energy documents or records.
Question 12. You testified that you were involved with the
drafting or review of S. 2589, the ``Nuclear Fuel Management
and Disposal Act.'' Describe in detail your role and activities
relating to that bill. Identify the positions DOE took in
supporting S. 2589, and for each, State whether you agreed with
that position. Provide copies of all DOE documents relating to
this legislation.
Response. As I testified before the Senate Environment and
Public Works Committee at the April 10, 2008, hearing, I was
involved in the development of and the interagency review
process for the Administration's legislative proposal that
Secretary Bodman submitted to the Congress on AprilS, 2006 and
on March 6, 2007, and that was introduced by Senator Domenici
and Senator Inhofe as S. 2589 on April 6,2006. The Department
of Energy supported the Administration's proposal, and as the
Department's general counsel, I represented the Department's
views on legal and policy matters in the development and
interagency review process for the proposal.
To the best of my knowledge, I have no documents in my
possession or control that are responsive to this request. For
purposes of this response, what is in my possession or control
refers only to what is in my possession or control in my
personal capacity. I do not, in my personal capacity, have
possession of or control over any official Department of Energy
documents or records.
Question 13. Provide copies of all testimony that you have
provided to congressional Committees, or into which you had
substantial input, during your tenure with DOE.
Response. Other than my testimony before the Environment
and Public Works Committee on April 10, 2008, concerning my
nomination to be the general counsel of the Environmental
Protection Agency, I have testified before Congress twice. Once
was at my confirmation hearing to be the general counsel of the
Department of Energy, which was held before the Senate
Committee on Energy and Natural Resources on July 12, 2005. The
other was on May 22,2007, before the Senate Committee on Energy
and Natural Resources, concerning several bills then being
considered by that Committee. My written and oral testimony on
both occasions is publicly available on the website of the
Senate Energy and Natural Resources Committee, http://
energy.senate.gov/public/.
Other than my own testimony, I have on numerous occasions
during my more than 6 years at the Department of Energy
participated in reviewing, writing, editing or discussing
testimony to be delivered to a congressional committee by a DOE
official. This testimony has covered a broad range of topics. I
do not recall with specificity all of the times that I have had
substantial input on testimony since March 2002, and therefore
I am unable to supply a list of or copies of all such
testimony. I have maintained no personal record of the
instances during which I have provided substantial input on
testimony.
Question 14. The EPW Committee held a hearing on the Yucca
Mountain Project last October. In questions submitted for the
record, I asked both DOE and EPA to send copies of all
documents related to the agencies' communications regarding the
EPA's draft Yucca Mountain radiation standards. In a letter
dated January 23, 2008, DOE stated that it was conducting a
search for all responsive documents related to this request.
Please provide those documents to the Committee.
Response. To the best of my knowledge, I have no documents
in my possession or control that are responsive to this
request. For purposes of this response, what is in my
possession or control refers only to what is in my possession
or control in my personal capacity. I do not, in my personal
capacity, have possession of or control over any official
Department of Energy documents or records.
Question 15. In the January 23 letter mentioned above, DOE
said that it will only provide ``nonprivileged'' documents.
What communications between the agencies would be considered
``privileged'' and why? Provide with your responses a detailed
log of all items responsive to my January 23 letter asserted to
be privileged, including for each document, the date; author;
recipients; ccs; subject matter; attachments; and type of
privilege asserted to protect such document from disclosure to
this Committee.
Response. I have not personally been involved in conducting
the searches for documents responsive to the referenced request
and am unable to provide an update on the current status of the
Department's response to that request. Moreover, to the best of
my knowledge, I have no documents in my possession or control
that are responsive to this request. For purposes of this
response, what is in my possession or control refers only to
what is in my possession or control in my personal capacity. I
do not, in my personal capacity, have possession of or control
over any official Department of Energy documents or records.
Question 16. List all EPA rulemakings in which you have had
any role during your tenure with DOE, and describe your role
and the substance of the recommendations or comments you
provided for each.
Response. From the time I joined the Department of Energy
in March 2002 as deputy general counsel for energy policy, to
the present in my capacity as the Department's general counsel,
I have participated on behalf of DOE in the interagency process
for a number of EPA rulemakings. During these processes, I have
represented the Department of Energy and expressed the
Department's views on relevant energy policy or legal matters,
depending on the substance of the particular rulemaking at
issue. The level of my personal participation in connection
with these interagency processes has varied greatly from time
to time and between different rulemakings, depending on the
Department's policy interests and views with respect to the
rulemaking activity, competing demands placed on me in
connection with other Department of Energy business, and the
ability of others at DOE to be involved in the review process.
I do not have a complete record or recollection of all EPA
rulemakings in which I might have had ``any role'' during the
last 6 years, but I know that I have been involved in the
interagency process for at least the following EPA rulemakings:
Clean Air InterState Rule (70 Fed. Reg. 25162 (May 12, 2005)),
Clean Air Mercury Rule (70 Fed. Reg. 28606 (May 18, 2005)),
various New Source Review rules (including 67 Fed. Reg. 80186
(Dec. 31, 2002) and 68 Fed. Reg. 61248 (Oct. 27, 2003)),
Proposed National Pollutant Discharge Elimination System
(NPDES) General Permit for Storm Water Discharges from
Construction Activities (67 Fed. Reg. 78116 (Dec. 20, 2002)),
and the proposed radiation standard for the Yucca Mountain
repository (70 Fed. Reg. 49014 (Aug. 22,2005)).
Question 17. Other than your experience participating in
inter-agency review of EPA rulemakings such as those discussed
in your responses to the questions above, describe each
instance in which you have had direct experience in
implementing, complying with or enforcing the environmental
statutes listed below. For each instance, provide details
regarding (a) the client (or provide general company and
industry description) you represented, (b) timeframe of
activity, and (c) nature of activity. Ifyou do not have, or
cannot recall, such direct experience for one or more of the
listed statutes, State for each: ``NONE.''
a. Clean Air Act
b. Coastal Zone Management Act
c. Comprehensive Environmental Response, Compensation and
Liability Act
d. Emergency Planning and Community Right-to-Know Act
e. Endangered Species Act
f. Federal Insecticide, Fungicide, and Rodenticide Act
g. Federal Water Pollution Control Act
h. Oil Pollution Act
i. Resource Conservation and Recovery Act
j. Safe Drinking Water Act
k. Solid Waste Disposal Act
l. Toxic Substances Control Act
Since March 2002, I have been employed at the Department of
Energy, first as deputy general counsel for energy policy, and
since August 2005, as the Department's general counsel. During
my time as general counsel, I have had overall responsibility
for all legal matters handled by or affecting the Department,
and have been professionally responsible for the work of more
than 250 lawyers throughout the country, including the
Department's attorneys who handle or are involved with
environmental matters.
With respect to the environmental statutes listed above,
DOE generally is subject to the major environmental statutes in
the same manner as any other regulated entity, with certain
limited exceptions (primarily arising due to DOE's
responsibilities under the Atomic Energy Act of 1954, or due to
the application of the doctrine of sovereign immunity in
specific situations). Consequently, DOE primarily is in the
posture of complying with, rather than enforcing or
implementing, the listed environmental statutes. For example,
DOE facilities are subject to the regulatory and permitting
provisions of the Clean Air Act, including EPA regulations
addressing air emissions of hazardous air pollutants. DOE is
also subject to the Clean Water Act's provisions relating to
the discharge of dredged and fill material and many DOE
facilities have National Pollutant Discharge Elimination System
(NPDES) permits. DOE facilities are also subject to the
regulatory and permitting requirements of the Resource
Conservation and Recovery Act (RCRA), and RCRA provisions with
respect to the regulation of solid wastes, hazardous wastes,
and underground storage tanks affect DOE operations. In
addition, a number of DOE facilities are undertaking cleanups
pursuant to RCRA corrective action requirements. DOE site
activities must also be consistent with the Emergency Planning
and Community Right-to-Know Act, the Endangered Species Act,
the Oil Pollution Act, the Safe Drinking Water Act, and the
Toxic Substances Control Act. As the Department of Energy's
general counsel, I have worked extensively with other DOE
attorneys with respect to a wide range of these environmental
matters, and particularly with regard to CERCLA and RCRA
issues. In addition, these environmental statutes often are
implicated in DOE's analyses with respect to the National
Environmental Policy Act of 1969 (NEPA), and since 2006 I have
had responsibility for the work of the Department's Office
ofNEPA Policy and Compliance, and have worked with officials in
that office and exercised approval authority with respect to
certain DOE Environmental Impact Statements and other NEPA
documents and analyses. Finally, I have participated in policy
discussions relating to the Safe Drinking Water Act,
particularly with respect to permitting pursuant to the
underground injection control program, and relating to the
Coastal Zone Management Act, particularly with respect to
appeals to the Secretary of Commerce relating to certain
consistency determinations by State authorities, and also with
respect to general CZMA matters relating to the permitting and
development of energy--related facilities.
To the best of my knowledge, I do not have any personal
records that would provide the requested complete and detailed
record of my work while in private practice in connection with
the listed environmental statutes. As noted above, I have been
employed at the Department of Energy since March 2002, and
prior to that date was engaged in private practice and also
worked for a time as an associate counsel on the staff of the
U.S. House of Representatives Committee on Agriculture. While
in private practice I do recall working for some clients in
developing and filing certain comments with the EPA or with
State authorities relating to the development of State
Implementation Plans or Federal Implementation Plans, as well
as the development of regulatory actions pursuant to the Clean
Air Act. I do not recall all of the specific law firm clients
and specific regulatory proceedings for which I might have
written or submitted comments or other documents.
Responses by David R. Hill to Additional Questions
from Senator Benjamin L. Cardin
Question 1. Mr. Hill, to better understand your view of the
rulemaking process, I'd like to consider the EPA's stormwater
provisions: Over the past two decades EPA has recognized the
numerous adverse impacts that stormwater pollution has on our
nation's waters. These impacts led to passage of the stormwater
provisions in the 1987 Clean Water reauthorization. However, I
am concerned that EPA may not be taking all appropriate steps
under the Clean Water Act to substantially reduce, if not
eliminate, this threat to water quality across the fifty
states. It is my understanding that EPA's effluent limitation
rulemaking, now underway, could set standards to protect water
resources from contaminated stormwater discharges from
development. However, it appears that instead of issuing a rule
to reduce long-term impacts associated with new development,
EPA may be instead planning to address construction site
discharges only. Doing so will ignore the most significant area
of harm to our waters, and do a disservice to the meaningful
progress Congress contemplated in 1987.
If the EPA does decide to only address construction site
stormwater discharges, it appears that this decision would be
inconsistent with best-available science regarding sources of
stormwater pollution and the best approaches to reduce it, and
is not in the economic interests of my State or the Nation. For
example, I understand that EPA's decision to expedite this
rulemaking will not allow it to even consider the
recommendations of a report on stormwater pollution to be
issued by the National Research Council in October 2008--an
expert evaluation that EPA funded to provide scientific backing
for its stormwater regulatory program. Could you comment on the
EPA's approach to rulemaking? How does or should science inform
the rulemaking?--What do you conceive your role is in this
process?
Response. Several years ago while serving as DOE's deputy
general counsel for energy policy, I recall that I had some
discussions with DOE and EPA officials in connection with the
EPA's consideration of rulemaking activities in connection with
stormwater permits for small oil and gas activity sites.
However, I have had no involvement in connection with these
matters for several years, and I am not personally familiar
with the EPA's current stormwater-related activities, or the
particular matters referenced in this question in connection
with construction stormwater discharges, or with respect to the
consideration of a National Research Council report to be
issued in October 2008. If confirmed as EPA's general counsel,
I would look into these issues.
With respect to the EPA's approach to rulemaking, how
science informs rulemaking, and how I conceive of my role as an
agency's general counsel in connection with rulemaking, as a
general matter I believe lawyers can playa very constructive
role in the rulemaking development and writing process. I
believe they can do so in several ways--one is with
participation in the development of the policy leading up to
the rulemaking. Another is the formulation of the actual
proposed or final rules issued by the agency. Yet another is in
providing legal analysis to assist in both the policy decisions
and in the formulation of the proposed or final rules. And
finally, lawyers can playa critical role in drafting and
reviewing the preamble and rule text set forth in a notice of
proposed rulemaking or notice of final rulemaking. I believe
that attorneys can best serve the public interest and the
interests of their respective agencies when they are clear
about what type of advice they are providing--is it legal
advice, or is it non--legal policy advice? I believe attorneys
earn the greatest respect for their legal opinions when they
are careful about discerning for themselves, and explaining to
others, exactly what type of advice they are providing.
Finally, I believe the value that can be added by attorneys is
enhanced, the earlier an attorney is able to participate in the
rulemaking process. For example, an attorney's advice likely
will be most valuable to agency decisionmakers if the attorney
can be involved in the rulemaking process early and participate
with other agency decisionmakers in formulating policies to be
pursued. These points are true for agency attorneys in general,
and can be particularly true for an agency's general counsel.
In the situation where an agency's rulemaking concerns, or
may be informed by, science or scientific judgment, science
must play an important role in that regulatory action. Of
course, it is possible that the scientific or technical
evidence about a particular matter or decision may be
inconclusive, there may be disagreements among science experts
about that evidence or the conclusions to be drawn from the
evidence, or policy assumptions or leanings may be embedded
within the views expressed by scientists about the scientific
or technical evidence. Moreover, it is possible if not likely
that a particular regulatory action does not merely mean
translating scientific evidence into regulatory text, but also
involves the exercise of policy judgment about what regulatory
actions should be taken based on particular scientific evidence
about which there may well be differences of opinion. And
finally, there may be disagreements about the appropriate
policy decision, based on various ``non-science'' factors
relevant to the rulemaking, even if the relevant scientific
evidence is clear. In all of these situations, scientific and
technical information, and scientific and technical judgment,
are important factors to be considered, although they may not
always be disposition of the approach to take in a particular
regulatory action that has been committed by law to a Federal
agency.
Question 2. In your opinion, is it appropriate for the EPA
to focus exclusively on construction site discharges rather the
long-term stormwater discharges following the construction of a
development?
Response. To the best of my knowledge and recollection, I
have had no personal involvement in connection with any
decision by EPA to focus any regulatory action in connection
with stormwater discharges exclusively on construction site
discharges rather than long-term stormwater discharges
following the construction of a development. Therefore, at the
present time I have formed no opinion on what EPA action on
this matter may be appropriate from a legal or policy
perspective. If confirmed as EPA's general counsel, I would
look into the matter addressed by this question.
Question 3. If EPA fails to set baseline national standards
for post-construction impact, how would Maryland or other
states ensure that neighboring states adopt protections that
would protect the Chesapeake Bay and other waters that are
interState in nature?
Response. To the best of my knowledge and recollection, I
have had no personal involvement in connection with any
decision by EPA in connection with setting baseline national
standards for post-construction impacts of stormwater
discharges. I strongly believe that protection of the
Chesapeake Bay is an important national priority. If confirmed
as EPA general counsel, I would look into the matter addressed
by this question.
Responses by David R. Hill to Additional Questions
from Senator James M. Inhofe
Question 1. At your confirmation hearing, it was asserted
that in establishing the Environmental Protection Agency,
President Nixon said that he wanted EPA to be a ``strong,
independent agency.'' The implication was that President Nixon
thought EPA should be independent from the authority of the
President. Did President Nixon establish EPA as an
``independent'' agency? Is EPA an ``independent'' agency as
that term is understood when referring to Federal agencies?
Response. The Environmental Protection Agency is not
currently, and never has been, an ``independent'' agency, as
that term is generally understood when referring to those
Federal agencies that are largely free from Executive oversight
of their decisions in particular cases. In fact, this question
was addressed by the U.S. Court of Appeals for the District of
Columbia Circuit in the case of Sierra Club v. Costle, 657 F.2d
298 (D.C. Cir. 1981). In that case, Judge Wald, writing for the
Court, stated as follows.
''The court recognizes the basic need of the President and
his White House staff to monitor the consistency of executive
agency regulations with Administration policy. He and his White
House advisers surely must be briefed fully and frequently
about rules in the making, and their contributions to
policymaking considered. The executive power under our
Constitution, after all, is not shared it rests exclusively
with the President. The idea of a 'plural executive,' or a
President with a council of state, was considered and rejected
by the Constitutional Convention. Instead the Founders chose to
risk the potential for tyranny inherent in placing power in one
person, in order to gain the advantages of accountability fixed
on a single source. To ensure the President's control and
supervision over the executive branch, the Constitution and its
judicial gloss vests him with the powers of appointment and
removal, the power to demand written opinions from executive
officers, and the right to invoke executive privilege to
protect consultative privacy. In the particular case of EPA,
Presidential authority is clear since it has never been
considered an 'independent agency,' but always part of the
executive branch . . . . Of course, it is always possible that
undisclosed Presidential prodding may direct an outcome that is
factually based on the record, but different from the outcome
that would have obtained in the absence of Presidential
involvement. In such a case, it would be true that the
political process did affect the outcome in a way the courts
could not police. But we do not believe that Congress intended
that the courts convert informal rulemaking into a rarified
technocratic process, unaffected by political considerations or
the presence of Presidential power.''
Question 2. At the hearing, you were asked if you worked
for the President. You answered yes. It was implied that
because you work for the President, you would be willing to
follow the President's orders, even if you disagreed with those
orders and the orders were contrary to the law. Would you do
that? If confirmed as EPA general counsel, would you follow the
orders of the President even if he directed you to act in a way
that violated the law, or if he directed you to give a legal
opinion that you firmly believed was illegal and not even a
reasonable interpretation of the law?
Response. As general counsel of the Department of Energy,
my commission signed by the President of the United States
states that I serve at the pleasure of the President. Moreover,
as an officer of the United States and an executive branch
official, I believe there can be no doubt that I work for and
ultimately report to the President. However, even if the
President directed me to do so, I would not view myself as
being bound to violate the law, or to give a legal opinion that
I firmly believed was illegal and not even a reasonable
interpretation of the law.
In this regard, I believe it is important to distinguish
between being directed to pursue particular policy objectives
with which one personally may disagree, and being directed to
act in a manner contrary to law or as a lawyer to be directed
to issue an opinion that the lawyer firmly believes is contrary
to law and not a reasonable interpretation of the law. In
representing the policy objectives of the President or of a
Federal agency, it is possible that, to the extent I have a
personal view about the particular policy matter, I do not
always personally agree with the policy objectives being
pursued. I do not believe that situation is problematic for me
or for attorneys in general. Indeed, lawyers working for
Federal agencies and lawyers in private practice often may be
called upon to work on matters or advocate interests that are
not fully consistent with their own personally held views about
a policy matter.
On the other hand, as an attorney and as a member of the
bar, I have a duty to faithfully uphold the law, and under my
oath as an employee of the Federal Government, I have an
obligation to uphold the Constitution of the United States. In
both capacities, I believe I am bound to follow the law, even
if my superiors direct me to act in a manner contrary to law.
Never, in my career at the Department of Energy, have I been
directed to give a legal opinion that I firmly believed was
illegal or not even a reasonable interpretation of the law. In
fact, I do not recall any superior ever directing me to
personally come to any particular conclusion concerning a legal
opinion I was called upon to render. Whether as general counsel
of DOE or as general counsel of EPA, if! was directed to
violate the law or if I was directed to give a legal opinion
that I firmly believed was illegal and not even a reasonable
interpretation of the law, I believe I would view myself as
being obligated to resign my position rather than follow the
orders given to me.
Question 3. At your confirmation hearing, you were asked
some questions about EPA's regulations setting a radiation
standard for the Yucca Mountain repository. A court's ruling in
2004 that struck down part of EPA's standard was cited as an
example of the Bush administration issuing regulations that
cannot withstand judicial review. Wasn't the rule issued in
2001, and subsequently partially invalidated, merely finalizing
a rule that had been proposed in 1999 by the Clinton
administration?
Response. Yes. The EPA radiation standard that was the
subject of the 2004 ruling by the U.S. Court of Appeals for the
D.C. Circuit was a final rule issued by EPA in 2001. I believe
that standard had been proposed by the Clinton administration,
in a notice of proposed rulemaking issued in 1999.
Question 4. At your hearing some seemed critical of the
Department of Energy's work in seeking to advance the Yucca
Mountain project. Didn't Congress in fact, in 2002, approve the
Yucca Mountain site as the location at which the Department of
Energy was directed to submit to the Nuclear Regulatory
Commission a license application for authority to construct a
spent nuclear fuel and high level waste repository? Isn't it
the Department of Energy's responsibility, under law, to
prepare and file this application with the NRC? And isn't that
exactly what you and others at DOE have been doing?
Response. In 2002, Congress passed and the President signed
a Joint Resolution, enacted as Public Law 107-200, which
approved the site at Yucca Mountain, Nevada for the development
of a repository for spent nuclear fuel and high level
radioactive waste, pursuant to the Nuclear Waste Policy Act of
1982 (NWPA). As a result of that approval, DOE is required by
law--specifically, section 114(b) of the NWPA to prepare and
submit to the Nuclear Regulatory Commission a license
application seeking authority to construct the repository at
Yucca Mountain. DOE has been engaged in that effort since
Public Law 107-200 was enacted in July 2002. My work at DOE in
connection with the Yucca Mountain project has been in
furtherance of this obligation which is imposed by law upon the
Department of Energy.
Senator Boxer. At this time, I would ask Senator Inhofe if
he would like to make an opening statement or place a statement
in the record.
OPENING STATEMENT OF THE HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Madam Chairman, I think I will go ahead.
Senator Boxer. Please.
Senator Inhofe. I understand you said that Senator Craig
was here and made a strong statement. I will associate with his
remarks and submit mine for the record, and go ahead and start
with the questions.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe, U.S. Senator
from the State of Oklahoma
I'm pleased we are holding this nominations hearing today.
However, I must say that I'm very concerned about the Senate's
lack of progress on nominations. Several critical nominations
have been sitting idle on the Senate Calendar for months due to
political power plays by the Democratic leadership in a
partisan effort to wrestle the Constitutional power to nominate
individuals from the President. Prior to the Easter break, this
Committee had seven nominees who had been delayed by the
Democratic Leadership as a result on this political act. Two of
these nominees waited 8 months and another waited 11 months
before they were confirmed on March 13th. Three nominees
favorably reported by this Committee remain on the calendar.
They deserve fair and swift consideration by the Senate. Please
understand, Madame Chairman, that this criticism is aimed at
the Democratic Leadership, not at you. You have been reasonable
in handling nominees.
That said, I'm pleased to support David Hill's nomination
EPA's General Counsel. Mr. Hill is currently serving as General
Counsel at the Department of Energy. Prior to Senate
confirmation in 2005, Mr. Hill served as Deputy General Counsel
for Energy Policy from 2002 to 2005. He is a well qualified
candidate for this very important position.
Senator Boxer. Very good.
Then I will start the questions, 5 minutes, and we will
just go back and forth.
I have here a list I will share with you--it is all a
public document--of the cases that have been overturned by the
courts, the decisions by EPA that have been overturned by the
courts. I read a few, Massachusetts v. EPA and so on. I wonder
whether you, in preparing for this hearing, have taken a look
at these rulings and what your comments might be.
Mr. Hill. Over time, Madam Chairman, I have read the
opinions in some of those cases. I don't know a full list of
all of the cases that have involved EPA and that the courts
have ruled against the agency. I am aware of at least some of
the major cases like Massachusetts v. EPA and the recent case
having to do with the clean air mercury rule and some others.
Senator Boxer. And you must be aware where the Supreme
Court told the EPA they absolutely have to regulate carbon and
greenhouse gas. I am sure you read that as well.
Mr. Hill. In the Massachusetts v. EPA case, I believe what
the Supreme Court decided was that greenhouse gases were air
pollutants under the Clean Air Act.
Senator Boxer. Right.
Mr. Hill. And that under section 202 of the Clean Air Act,
the Administrator had to make a decision under that particular
section as to whether or not emissions of greenhouse gases from
mobile sources endangered the public health and welfare.
Senator Boxer. Did you read the part where they discuss the
action to set mileage standards, what they said about that?
Because Administrator Johnson, his first argument was that DOT
was setting mileage standards and therefore we didn't have to
do anything else.
Mr. Hill. I remember there was a part of the opinion, Madam
Chairman, where the court was talking about the interplay
between the Department of Transportation's responsibilities to
set CAFE standards under the Energy Policy and Conservation
Act, and EPA's duties under section 202 of the Clean Air Act. I
believe what the court said in that context was that the court
had confidence that the agencies would be able to work together
and work something out. It certainly said that DOT had its
responsibilities and EPA had its responsibilities.
Senator Boxer. Actually, the language was very different
from that. They said, ``The fact that DOT sets mileage
standards in no way licenses EPA to shirk its environmental
responsibilities.''
How do you feel in general about the EPA, you know, because
it is the legal people who are advising EPA here, overturned
nine times in major cases, more times than that, but in major
cases nine times since 2004. Why do you think that happened?
Mr. Hill. Madam Chairman, of course it is a serious concern
for an agency when it makes a decision and invests a lot of
time in a particular decision and a particular course of
action, and that decision is overturned in the courts. At DOE,
we of course are sued at various times and we try to vigorously
defend what it is we have done. We try to do things in a way
that is legally defensible. It is a real concern to have a good
record of being able to defend those cases in court.
If I were the General Counsel at EPA, of course I would
look at the decisions that have been made and to the extent
those are final, those are settled law and we have to operate
with those. I would do everything I can to try to advise the
Administrator in a way where we do develop decisions and rules
that are going to be legally defensible.
Senator Boxer. Yes, because my concern is, frankly as I
look over this list, it is just extraordinary to me that
politics is playing a part here, that these decisions are being
made because of politics, rather than following these various
landmark laws.
Before I turn it over to Senator Inhofe, I want to talk
about your involvement in some of these rules that were
overturned by the courts. Were you involved in an interagency
review process of EPA's new source review rules and the mercury
rule?
Mr. Hill. Yes, I have been involved in the interagency
process on numerous things--actions by DOE, actions by EPA,
actions by other agencies. I was involved in interagency
discussions.
Senator Boxer. Do you recall what your view was at that
point on that new source review and the mercury rule?
Mr. Hill. Well, Madam Chairman, I remember discussing those
in the interagency process. I am sure I offered comments. I
don't know specifically, and that has been several years ago. I
don't know that I recall specifically what comments I was
offering.
Senator Boxer. Did you offer any criticism of the overall
approach that EPA was taking that eventually was overturned?
Mr. Hill. I remember us having discussions of various
kinds. I don't remember actually saying that I thought they
should go in a completely different direction than the one that
they were going in.
Senator Boxer. OK. I will get back to that.
Senator Inhofe.
Senator Inhofe. Thank you, Madam Chairman. I apologize for
being a little bit late.
I have looked into your background and your past
performance and I feel you would do an excellent job in this
position. One of the things that has bothered me quite a bit is
when you look at the regional offices, there is quite a
disparity between the enforcement policies that they have from
these various offices. When I chaired this Committee when the
Republicans were a majority, we held several hearings.
Now, in this position, it would seem to me that you would
be in a position to deal with the attorneys at these regional
offices to have consistency in the application of the laws and
the policies of the EPA in those offices. This is the one thing
that I would like, No. 1, to know if you agree that there is a
problem; and No. 2, if you are willing to get out there and
confront that problem so that when we call and we see that
there is a disparity in application that maybe we can correct
that problem.
Mr. Hill. I appreciate the question, Senator Inhofe. One of
the things that I have done at the Department of Energy as
General Counsel is try to travel around the Country to the
sites where DOE has major operations, where we have Chief
Counsels and where we have attorneys that practice, DOE
attorneys around the Country.
Senator Inhofe. And how many regional offices would that
be?
Mr. Hill. We don't have as many site offices as EPA has
regional offices, but we probably have attorneys maybe at seven
or eight places around the Country.
Senator Inhofe. OK. And you actually yourself have gone
there on this mission?
Mr. Hill. Yes. I personally have traveled to a number of
those places. There are several places I have been to, at
several DOE facilities where they have noted that I am the
first General Counsel in the 30 years of DOE to ever set foot
in their office.
Senator Inhofe. And they were offended, I am sure.
[Laughter.]
Mr. Hill. Well, I don't know. They may have been. I don't
know, Senator. They didn't tell me whether they were happy that
I showed up. I have done that for a couple of reasons. One is
so that I actually can see where we are conducting operations,
whether it is one of the laboratories or one of the cleanup
sites or the Strategic Petroleum Reserve. And so that I can
meet a number of the people, both attorneys and non-attorneys,
who are there, a number of whom I normally don't have any
occasion to work with.
When I have traveled around the country, one of the things
that I have done is I have told them that I view it as our
obligation as attorneys--and that is really true whether they
are a part of the Office of General Counsel or whether they are
a part of the Office of Science or the Office of Environmental
Management--to work with attorneys throughout the Country so
that we do have a coordinated approach to things, and so that
we do have consistency in the way that we approach matters.
I also I have focused on making sure that they have the
resources they need as practicing attorneys and that their
voices are being heard in the matters that they are working on.
Senator Inhofe. Well, I would like to ask for a commitment.
I believe you are going to be confirmed. I certainly support
your confirmation. But I would like to get a commitment that
you, let's say in the first year, actually physically visit and
talk about this problem. And prior to making that trip to the
various regional offices, read the transcripts of the--I think
we had two hearings back when I chaired this Committee--on
really egregious inconsistencies of application of the law and
the policies in these various regional offices. Would you be
willing to do that?
Mr. Hill. Senator, I will commit to you to extract myself
from Washington, DC. and go out and visit some of these
regional offices. I don't know if I can commit to visit them
all, but it certainly will be a priority of mine to get on the
road and visit some of these regional offices and talk with
them.
Senator Inhofe. Yes. OK. Let me alter my request. I want
all of them, yes, but Region V and Region IX to be the first
two priorities.
Mr. Hill. I will work to make those my first priorities,
Senator, if at all possible.
Senator Inhofe. All right. Thank you very much.
Thank you, Madam Chairman.
Senator Boxer. Senator Bond, do you have an opening
statement?
OPENING STATEMENT OF HON. CHRISTOPHER S. BOND,
U.S. SENATOR FROM THE STATE OF MISSOURI
Senator Bond. Madam Chair, I apologize.
Senator Boxer. That is all right.
Senator Bond. Everything has hit my schedule today, and I
ran into the Cherry Blossom traffic coming in. I thought the
traffic was over with.
Senator Boxer. Yes, well, you are welcome to make an
opening statement.
Senator Bond. Fine. I wanted to do that because David Hill
is a Missourian with deep and strong roots. I believe that the
Committee and the full Senate should act expeditiously to
approve him. David is a sixth-generation Missourian. His great-
great-great-grandfather Sam Hill came to Missouri in the early
1800's. My great-great-great-grandfather came to Missouri in
the late 1700's, and so we have a similarity there.
His parents are from rural Caldwell County, Northwest
Missouri. He grew up in Smithville, north of Kansas City, where
his parents live. After Smithville High School, he received a
degree in ag journalism for the University of Missouri, which
is our nationally known school both for its college of
agriculture and its law school.
He attended law school at Northwestern University in
Chicago, and clerked for a judge on the Tenth Circuit Court,
U.S. Court of Appeals. I clerked on the Fifth Circuit Court of
Appeals. David practiced law in Kansas City and Washington, DC,
as I did. He served as a professional staff member of the House
Ag Committee, but despite his Washington connections, he has
maintained his ties with Kansas City and Missouri. I think he
would make an excellent member of the EPA.
Madam Chair, this is a very contentious time for
environmental policy in this Administration. Congress and our
oversight role needs to understand better the decisionmaking of
the EPA. EPA's General Counsel must play a central role in
responding to information requests such as the request that our
Ranking Member has just made. That is why I think it is in the
interest of the Committee and the Senate to have the EPA
General Counsel office fully staffed with leaders empowered to
make decisions.
He was unanimously confirmed as General Counsel at the
Department of Energy and his 3 years of experience there make
him well qualified to serve in the same role at another major
governmental agency. He has a record of proven experience,
management acumen, and legal experience. I believe this Show Me
State product has shown us he can make an excellent EPA General
Counsel.
I urge the Committee to report the nomination favorably,
and I will urge our colleagues in the Senate to confirm him as
swiftly as possible.
With that, Madam Chair, I am due at three more committee
meetings this morning.
Senator Boxer. I know.
Senator Bond. So I apologize, but mark me down as strongly
in favor.
Senator Boxer. I know that and I will mark you down as
strongly in favor. We really do thank you for making the
effort. It says a lot for your opinion.
Senator Bond. This is a fine man. Even though he and I have
a similar track record, don't judge him by my mistakes please.
[Laughter.]
Senator Bond. I hope he has learned better than I did.
So thank you very much.
Senator Boxer. Thank you, Senator Bond, for making the
effort to come over. We know this is just such a hectic time
for all of us, and we appreciate your being here.
I want to get back to your role in the EPA new source
review rules and the mercury rule, because I have the docket
here. You know, you made some edits and that is about it. So it
is clear to me, and you said before you didn't recommend they
go in a different direction. This is a problem because of what
eventually happened, which was the courts came down hard on EPA
and the docket shows you did make comments kind of on every
page, but they were more technical or corrective.
In New York v. EPA--this was the D.C. Circuit in 2006--
EPA's interpretation of substantial plant modifications did not
come within the scope of any physical change and would make
sense only in a Humpty Dumpty world. That is pretty tough talk.
And then New Jersey v. EPA, the D.C. Circuit, which is
certainly a conservative circuit--I mean Janice Rogers Brown as
I understand it, is that right, signed off on it? Janice Rogers
Brown, and she is one of the most conservative judges ever, I
think I could say. The EPA rules seeking to reverse controls on
mercury emissions from power plants was unlawful on its face.
EPA's explanation--and this is a direct quote from the
decision--``deploys the logic of the Queen of Hearts,
substituting EPA's desires for the plain text of the section.''
That is pretty fancy language for that court.
So what I am saying is, here you had an opportunity to save
EPA from themselves. This list is shocking, frankly, and you
didn't exercise that judgment which is of concern.
On the ozone air quality standard, on March 15th EPA
announced a revised secondary air quality standard for ozone.
The Federal Register notice showed the White House overruled
EPA on the appropriate standard based on an OMB position. Do
you believe it is appropriate for OMB or other White House
staff to overrule the scientific judgment of the EPA
Administrator, when Congress has explicitly delegated the
decision to the Administrator under the Clean Air Act?
Mr. Hill. Madam Chairman, I think it is perfectly
appropriate for there to be coordination and consultation
between various agencies and with the various agencies with
officials at the White House. I read some of the press reports
about the conversations between the EPA and the White House
about the secondary standard on the ozone rule that was
recently issued. I don't know anything more about those
conversations than what I read about them in the papers.
Senator Boxer. Right. But I am not asking you about
conversations. I am saying I know you have read the Clean Air
Act. Under the Clean Air Act, it is supposed to be a clean
decision by the EPA Administrator without that type of
interference. It is supposed to be based on protecting the
health of the people. That is the way the Act is written. The
Act wasn't written with any other purpose.
So I am asking you again, do you believe it is appropriate
for OMB or other White House staff to overrule--to overrule, I
am not saying talk to--to overrule the scientific judgment of
the EPA Administrator when Congress has explicitly delegated
the decision to the Administrator in the Clean Air Act? Do you
think it is appropriate for them to overrule? That is my
question.
Mr. Hill. Senator, the courts have held for a number of
years, and in fact the executive orders dealing with
interagency review of major regulations say that it is
perfectly appropriate for there to be any amount of
consultation and coordination and work among the various
agencies and with the folks at the White House. So I think it
is perfectly reasonable and appropriate that those interagency
conversations go on.
Senator Boxer. I agree with you. I am not questioning that.
You are repeating it. Do you think--yes or no--it is
appropriate for OMB or other White House staff to overrule the
scientific judgment of the EPA Administrator when the Congress
has explicitly delegated the decision to the Administrator
under the Clean Air Act?
Mr. Hill. Senator, again, I think the courts have held that
within the unitary executive, it is fine for the White House to
be significantly involved in decisions.
Senator Boxer. I know. I am not asking that. Can you please
answer my question? I thank you. You are a very smart man. I am
not trying to trap you. I am simply trying to get an answer.
Do you believe it is appropriate for the OMB or other White
House staff to overrule the scientific judgment of the EPA
Administrator when Congress has explicitly delegated that
decision to the Administrator? I am not talking about
consultation, having lunch, chit-chatting, having coffee and
exchanging ideas. I am talking about overruling a decision.
Mr. Hill. Ultimately, the Administrator works for the
President of the United States.
Senator Boxer. Doesn't the Administrator have to carry out
the Clean Air Act? What if the President of the United States
tells him to do something illegal? You are saying he has to do
that?
Mr. Hill. I believe the courts have held, Senator, that
within the unitary executive that the Administrator and the
EPA, just as with all executive agencies, work for the
President and are responsible to the President of the United
States.
Senator Boxer. OK. Well, my legal experts are telling me
that there is going to be another lawsuit because of the way
this rule was handled. What is discouraging to me is you are
basically giving the sign-off. He works for the President so if
the President tells him ignore the health factors, I just think
politically this is a bad decision, that you would be fine with
that. That is extremely troubling to me because I will tell you
why. There will be another lawsuit. EPA will lose again, and
all we are doing is delaying the work we have to do.
We will go to Senator Inhofe for his questions.
Senator Inhofe. Madam Chairman, I don't have any more
questions. After listening to Mr. Hill, I think he is doing
fine. In just a very short while, I am going to have to leave,
and I hate to do that to you, but I think you can handle
yourself.
Senator Boxer. Senator Whitehouse.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you, Madam Chair.
Mr. Hill, I would be interested in hearing a little bit
more about your conception of the role of a General Counsel to
a government agency. Unfortunately, from the various seats that
I have on Senate committees, on a variety of occasions I have
seen attorneys' performance and attorneys' work that to me does
not meet very, very basic standards of adequacy, but appears to
serve a larger political purpose, i.e. corners were cut that
shouldn't have been cut; cases were ignored that shouldn't have
been ignored; analysis was flawed, but it got where people
thought the President wanted it to go.
It is concerning to me to hear you sort of leap to the
notion of unitary executive, and the implication one takes from
that the role of a Cabinet officer in a President's
Administration, particularly of an agency like EPA that is a
regulatory agency as well as an implementing agency, is simply
to do the President's bidding.
How do you compare and contrast your conception of a
unitary executive, for instance, with the conception of the
first Administrator of the Environmental Protection Agency,
also a Republican, that it was an independent agency?
Mr. Hill. Senator, your first question about the role of a
General Counsel and how a General Counsel operates within an
agency, of course, having been General Counsel of the
Department of Energy for almost 3 years, there have been
various situations that I have been in where I have given
advice in various DOE matters and various DOE decisions, some
major, some minor, where the advice I have given has been that
we cannot as a legal matter pursue a policy objective that one
or the other of the policy officials wishes to pursue. And
there are times that people have been very angry with me about
that.
But as a matter of carrying out my obligations as General
Counsel to the Secretary, the President and the American
people, I view that as being my obligation. I am perfectly
willing to accept that responsibility as the General Counsel of
DOE.
Senator Whitehouse. Good. of EPA, you mean?
Mr. Hill. I do currently at DOE. If I were confirmed at
EPA, I would at EPA as well.
Senator Whitehouse. Yes. EPA appears to have a pretty
tragic history recently with the result of its litigation.
Courts of the United States have referred to its litigation
positions using reference to Humpty Dumpty, using reference to
Alice in Wonderland. It is embarrassing to me as a member of
the U.S. Government to have an agency of the U.S. Government
referred to in that way by our courts.
The record of success on significant litigation of the EPA
is essentially zero. They got knocked out of the box
essentially every time. There appears to have been no effort
that I can divine to, if this was a company, for instance, and
corporate counsel made litigation recommendations to the CEO
that caused defeat after defeat after defeat, and caused the
courts not only to say you lose, but to mock the credibility of
the position that corporate counsel had taken. At some point,
somebody you would think would look back and say, you know, our
corporate counsel aren't doing a very good job here; let's take
a second look.
I worry in the context of this sort of unitary executive
theory that at the EPA the legal determinations are now being
made not because of their merit or because even of any
likelihood of success, but because they will either kick the
can down the road for a little while, or at least please the
policymakers in the White House. That creates substantial
expense to taxpayers and it also creates departures from
American law, which are significant. No matter what party you
are in, no matter what agency you are in, we would like to
operate a government that is lawful.
I am wondering what your comment is on the record of EPA in
terms of its litigation, whether you see warning signs there
that suggest that maybe something is wrong that needs to be
corrected, and what you might do to correct it.
Mr. Hill. Senator, I think your concerns are very
legitimate. I am concerned about that as well. I think a lot of
these decisions that EPA has made and makes and a lot of the
matters before the agency are very complex, from a legal and
policy and scientific and technical perspective. As a result,
they are very complicated decisionmaking matters.
I think if I were confirmed as General Counsel, I certainly
would view it as my obligation and I would do everything I can
to make sure that in carrying out those responsibilities
decisions and in making those decisions or issuing those rules,
that we did those in a responsible manner, and I would advise
the policymakers about a way to do that in a legally defensible
way.
Senator Whitehouse. Do you have concerns at present, or any
idea at present as to what might have gone wrong that caused
this extraordinary series of not only defeats, but embarrassing
criticisms of the very professional quality of the work that
led to the defeat?
Mr. Hill. If confirmed, Senator, one of the first things I
would do is meet with all of the Associate General Counsels and
the Deputy General Counsels, I believe all of whom, perhaps
with one exception, are career Federal employees there at EPA,
and learn from them just what they believe. The past is the
past, but we can do something about the future. What it is from
their perspective, and how it is that we might approach our
work in a way where the agency would be able to have an
improved track record.
Senator Whitehouse. It is your sense that the patterns and
practices that have led to this sequence of defeats at least
merits a look at this point by a new incoming General Counsel
as to what the heck is going on here.
Mr. Hill. I certainly don't know, Senator, that anything
that has been done in terms of management of the office before
has been wrong, but I of course haven't been in that office.
Senator Whitehouse. Working back from the conclusion you
draw from the batting record of the department and from the
really extraordinary things that were said about it by United
States District Court and Circuit Court judges, just that
alone, setting aside knowing what went on, that merit at least
being looked at as General Counsel?
Mr. Hill. Senator, it is concerning, just as at DOE when we
are sued and lose, it is a matter of significant concern to me.
What it causes me to do is say, OK, well how is it that we can
conduct our work differently; how is it we can go about this in
a different way, so that we don't just make decisions and get
them remanded to us or get them overturned. These are decisions
and rules and other matters that require an extraordinary
amount of work, and yet we need them to survive judicial
challenge. And so I certainly would do what I can to address
that.
Senator Whitehouse. I have gone over my time. I see that
some of my colleagues have arrived. I appreciate the Chair for
her indulgence while I have the floor for a while here. Thank
you very much, Madam Chairman.
Senator Boxer. No, I appreciate your line of questioning.
Here is what we are going to do. We are closed for opening
statements. We will put those in the record, but we will go to
questions.
Senator Barrasso.
Senator Barrasso. Thank you very much, Madam Chairman.
Mr. Hill, congratulations. I appreciate your being here
with your family in the front row. I want to appreciate your
service and your willingness to do continued service here for
our country, so thank you very much.
I am from Wyoming, and in Wyoming we believe that Wyoming
solutions to environmental problems are better than the one
size fits all approach that Washington often offers. We also
often disagree with interpretations of the law coming from
Washington on statutes such as the Clean Air Act or the Clean
Water Act.
Can you elaborate a little bit about your feelings of
incorporating State and local viewpoints in terms of analyzing
and interpreting the law?
Mr. Hill. Thank you for that question, Senator. Again
speaking about my experience at DOE, we have a number of major
operations around the Country both in terms of laboratories or
our cleanup sites. In most of those really in all of those
situation it is important to the success of what we are doing
that we work very closely with the States. In fact, often we
are regulated by the States in terms of our cleanups.
So one of the things that I personally have done
occasionally is work with State officials on those particular
matters. Other attorneys in the office have as well, and that
is really true both on legal matters and also working with
other officials in the department on more policy or budget
matters.
Senator Barrasso. Along that line, with your experience at
the Department of Energy in terms of the legal, the technical,
policy matters, could you give us a couple of examples of how
you work with others? You know, you talked in your testimony
about the reputation that you have gained of being careful and
considerate of all viewpoints. I don't know if you want to
share with the Committee any specific examples of how you have
worked well with others.
Mr. Hill. Sure. One of the things that we are doing right
now and that I spoke with Senator Craig about just a little bit
before the hearing started, is that we of course have a
laboratory and a large cleanup ongoing in the State of Idaho. I
personally and other attorneys in the office have worked for
months, for years in connection with Idaho officials, both
lawyers and non-lawyers, on that operation. We don't always
agree, and sometimes we have very difficult arguments about
that, but I think we have worked constructively over time.
In the context of the DOE work and within the
Administration, within the Federal family, the loan guarantee
program that DOE is working to implement that was authorized in
the Energy Policy Act of 2005 has required extensive
coordination by us at DOE with officials at the Department of
the Treasury, with the Office of Management and Budget, with
Members of Congress and their staffs. Again, it is not
something where we can always make everybody happy, but it is
something where we try to address legitimate concerns. We try
to listen to reasonable arguments, and we try to come up with
something that makes sense from a legal and a policy and a
fiscal standpoint.
Senator Barrasso. Thank you very much, Mr. Hill.
Thank you, Madam Chairman.
Senator Boxer. Thank you very much, Senator.
Senator Carper.
Senator Carper. Thank you, Madam Chair.
Mr. Hill, welcome. I see two of your three daughters are
here. Is that right?
Mr. Hill. Thank you, Senator. Yes, we have three daughters,
but there are only two of them that made the trip.
Senator Carper. Where is the third one?
Mr. Hill. The third one is 3 years old and she is in her
preschool this morning.
Senator Carper. I would call that an excused absence. We
welcome you. At least you have a quorum of your family here, so
we are glad you are here. Welcome and thank you for your
service to our country.
I am going to go back over 7 years in time, to Saginaw,
Michigan, when my colleague, a former Governor, then-Governor
George Bush made the following campaign promise. What he said
is he said if he were to become President, and this is what he
pledged, and I am going to quote him, ``to require all power
plants to meet clean air standards in order to reduce emissions
of sulfur dioxide, nitrogen oxide, mercury and carbon dioxide
within a reasonable period of time.'' Those are his words.
Unfortunately, less than 60 days after taking office,
President Bush began backing away from that pledge. And 6
months later, on March 13th, 2001, in a letter that President
Bush sent, he said, and again I quote, ``I intend to work with
the Congress on a multi-pollutant strategy to require power
plants to reduce emissions of sulfur dioxide, nitrogen oxide
and mercury. I do not believe, however that the government
should impose on power plants mandatory emissions reductions
for carbon dioxide, which is not a pollutant under the Clean
Air Act.'' That is again his quote.
Unfortunately, in 2005, President Bush continued to pull
away from his initial pledge. He decided not to work with
Congress on a multi-pollutant strategy, and his Clear Skies
proposal failed here because it would not have improved the
environment and ignored carbon dioxide emissions. He then
attempted to implement his Clear Skies proposal through
regulation in the form of a clean air interState rule and the
clean air mercury rule.
One year ago, the Supreme Court rejected the President's
position that carbon dioxide is not a pollutant. As you know,
the Supreme Court told EPA that the EPA's decision not to
regulate carbon dioxide--and this is a quote again from the
decision ``rests on reasoning divorced from the Clean Air
Act.'' In other words, the Supreme Court decided that EPA
failed to follow the clear directives of the law.
In 2006, the D.C. Circuit Court concluded that EPA's
attempt to weaken the regulations known as new source review
would make sense ``only in a Humpty Dumpty world.''
I wish some of these people were writing my speeches. They
are pretty good.
In February of this year, the D.C. Circuit vacated a clean
air mercury rule. In their decision, the court said EPA's
mercury rule was based on ``the logic of the Queen of Hearts
substituting the EPA's desires for the plain text'' of the law.
In my opinion, this was a welcome decision. The clean air
mercury rule was deeply flawed, and I understand you have a
different view of this, but it was deeply flawed and did not go
far enough to protect the public's health, in my own
estimation. EPA should have regulated mercury as a hazardous
air pollutant and imposed regulations that would require every
covered power plant to install best available controls to
reduce their mercury emissions.
And finally late last month, the D.C. Circuit Court heard
oral arguments on a challenge to the clean air interState rule.
Many believe the court could overturn that rule as well. Given
EPA's track record in the courts, I would say it is not
unlikely.
In short, regrettably we are not much closer to cleaner air
than we were in 2000. What this means is that in the 8 years
since then-Governor Bush promised to address all four major
pollutants from power plants, 190,000 people have died
prematurely due to air pollution; five million babies have been
exposed to dangerous mercury levels in the womb; 580 million
hours of work have been missed because of asthma and other
respiratory diseases; and countless dollars have been spent on
health care treating the many illnesses that these pollutants
cause. This is not an environmental legacy that I would be
proud of.
Given the fact that EPA has had so many of its proposals
overturned by the courts, I think it is an understatement to
say that EPA has suffered from some bad legal advice. The
Supreme Court and the District Courts have repeatedly chastised
EPA for failing to follow the law and making instead Alice in
Wonderland-types of interpretations of the Clean Air Act.
Mr. Hill, that is the legacy position that you are seeking
to fill and may well fill. I sincerely hope that if you are
confirmed as EPA's next General Counsel you will follow through
with the commitment made in your written statement to help the
agency advance its mission protecting human health and the
environment in a manner that fully complies with the law. It is
a long statement. Here is my question.
On April 2d, 2007, the U.S. Supreme Court ruled that carbon
dioxide is a pollutant and charged EPA with making a formal
endangerment finding regarding greenhouse gases. On April 2d,
2008, the litigants in the Supreme Court decision petitioned
the court to force EPA to make this finding within the next 60
days. I find a year long delay in acting on a ruling,
responding to a ruling from the highest court in the Nation to
establish critical environmental regulations unacceptable.
Question: What do you consider an appropriate response time
to a decision or a finding of this nature? How will you work to
ensure the agency responds in a timely manner in the future?
Please.
Mr. Hill. Thank you for the question, Senator. I think that
how fast an agency should work on remand of a particular case
depends on the circumstances. I know that in this particular
case, I believe the Administrator recently announced that he
had decided to publish an advance notice of proposed rulemaking
having to do with how to respond to the particular decision in
light of all the implications of regulation of greenhouse gases
under the Clean Air Act if that were to happen as a result of
an endangerment finding under section 202 of the Clean Air Act.
So your direct question I believe is how fast should the
agency act. I think the answer is really it depends on the
circumstances.
Senator Carper. Is a year a reasonable period of time given
this situation?
Mr. Hill. In this particular case, I believe it was maybe
within a month or so of the Supreme Court's decision the
President issued an Executive Order calling for different
agencies to work together in response to the Massachusetts v.
EPA case. The agencies were working together on that, and then
the Energy Independence and Security Act was passed, and now
the Administrator has decided to publish an advance notice of
proposed rulemaking.
So I think the agency has proceeded down one path, but then
what the Administrator said was that in light of some of the
recent developments and really thinking more about it, that he
thought that an advance notice of proposed rulemaking was the
right way to go.
So I think in answer to your question, it really depends on
the circumstances. But in this case, the Administrator has
decided that an advance notice of proposed rulemaking is
appropriate at this time.
Senator Carper. My time has expired. Let me just say, I
wish you well, but I am disappointed with that response. Thank
you.
Senator Boxer. Mr. Hill, I want to talk about the Savannah
River nuclear waste disposal. In 2006, you sent a letter to the
Nuclear Regulatory Commission objecting to the commission's
plan for overseeing DOE's handling and disposal of spent
nuclear fuel at the Savannah site.
You raised issues with the NRC's proposal to make key
aspects of their review of DOE's nuclear waste disposal
publicly available, and you objected also to having key
meetings open to the public. Press reports said that DOE
insisted on having closed door meetings to define the scope of
NRC's rule. I have a copy here of the letter that you wrote
expressing your concern, and I am going to make it part of the
record, without objection.
[The referenced document was not received at the time of
print.]
Senator Boxer. Do you believe that keeping the public in
the dark on such important matters as nuclear waste disposal is
appropriate?
Mr. Hill. Madam Chairman, I believe that it is important in
some contexts for there to be a free and frank discussion among
agency officials of different agencies that isn't always in
public. I think in that particular context, which I believe had
to do with the waste incidental to reprocessing matter at
Savannah River, that Congress had passed and the President had
signed a law calling for the Department of Energy to make
certain determinations. We believed that at the particular time
the Nuclear Regulatory Commission was proceeding in a way that
was inconsistent with what Congress had intended and the
authority it had given the Department of Energy in that
particular statute. So that was why I wrote that letter to the
NRC.
Senator Boxer. But sir, your objections went beyond that
because you said you objected to having key meetings open to
the public. So you objected to that, and eventually, by the
way, you were overruled. People weighed in on it and that
changed. So I have a problem with that as someone who believes
the public has a right to know, especially on these important
matters. Representatives Dingell and Barton, bipartisan, raised
concerns to these closed meetings, and the NRC opened the
meetings despite your objection.
As we move forward, this is an issue that I care deeply
about, the public's right to know. It is involved in a lot of
environmental laws. This, I think, is symbolic to me of your
taking the side of secrecy. I understand your concerns. You
outline them in your letter.
Now, on Yucca Mountain, what role would you play as General
Counsel in finalizing the Yucca Mountain radiation standards?
Mr. Hill. If I were confirmed as General Counsel at the
Environmental Protection Agency, I anticipate I would work with
the Administrator and other officials if that hadn't been
finalized by that time to help finalize the standard.
Senator Boxer. So you would be in a position to modify the
radiation standards and in a position to approve or deny
promulgation of the radiation standards?
Mr. Hill. Well, it would be the Administrator's decision in
the end about what standard and what rule to approve.
Senator Boxer. And the Administrator works for the
President, right? That is what you said. Do you work for the
President?
Mr. Hill. I work for the President as well, yes.
Senator Boxer. OK. All right. This whole thing is
interesting the way you see your role. I respect it, but it
flies in the face of what Richard Nixon said the agency ought
to be totally independent. It is a problem and it reflects
exactly why we are where we are with a series of court
decisions that have been overturned and make all of you who are
involved with them look like you don't know what you are doing.
You are a brilliant man. I see it, with a beautiful family,
and I wish you nothing but good things in your life. But I
don't necessarily want to see this attitude continue at the
EPA, which has become a shadow of its former self.
Now, have you ever participated in making any
recommendations or comments to the EPA, the NRC or the White
House on the Yucca Mountain radiation standards?
Mr. Hill. I have participated in interagency discussions on
that matter.
Senator Boxer. And what was the substance of your comments
or recommendation?
Mr. Hill. The DOE has of course been working for years on
the Yucca Mountain matter. We are currently in the process of
trying to prepare a license application to file at the Nuclear
Regulatory Commission relating to the Yucca Mountain project.
We have tried to participate in those discussions
constructively, and of course to help EPA develop a standard
that is both technically sound and legally defensible.
Senator Boxer. Have you ever recommended or suggested in
writing or verbally that anyone should modify the technical
recommendations of EPA's staff regarding any Yucca Mountain
standards?
Mr. Hill. Have I recommended?
Senator Boxer. Have you recommended or suggested in writing
or verbally that anyone should modify the technical
recommendations of EPA staff regarding any Yucca Mountain
standards?
Mr. Hill. Have I recommended that anyone modify the
technical recommendations of EPA staff?
Senator Boxer. Yes.
Mr. Hill. I don't remember doing that, Madam Chairman.
Senator Boxer. OK. Do you disagree with the court that
overturned the EPA standards?
Mr. Hill. Madam Chairman, you are referring to the decision
in, I think it was, 2004?
Senator Boxer. Yes.
Mr. Hill. The EPA standard, the radiation standard for
Yucca Mountain, was promulgated in I believe it was 2001. The
court later overturned the rule with respect to whether or not
it was permissible for EPA to only set a 10,000-year standard
instead of a standard going out to a million years or on the
order of geologic stability. I believe the 2001 rule that EPA
signed and issued was a solid standard. The court disagreed
with that and said that it was inconsistent with part of the
NAS report. So, the original EPA rule I think was very sound.
Senator Boxer. OK. So you disagree with the court?
Mr. Hill. I think the original EPA rule was very sound. The
court at this point has spoken and we need to live with what it
is that the court decided.
Senator Boxer. Well, again, this is so disturbing because
you sound like you would be just in line with what has been
happening over there at EPA, you know, no independent thought,
and continuing to see these battles in court that you lose
every time not you, that they have lost every time.
Now, if you have any papers on your recommendations on the
standard, we would appreciate if you could get it to our
Committee, anything in writing. All right? Could you do that
for us?
Mr. Hill. Anything in writing from me to the EPA.
Senator Boxer. Yes. To EPA or anyone else regarding the
standard.
Mr. Hill. I will see what I have on that, Madam Chairman.
Senator Boxer. Thank you. Thank you very much.
Have you participated in making any recommendations--oh, we
just asked that.
Were you involved in any way with the drafting or review of
the Nuclear Fuel Management and Disposal Act by DOE?
Mr. Hill. This is the legislation that the Administration
proposed, that I believe Secretary Bodman maybe sent up to
Congress in 2007?
Senator Boxer. Yes. Were you involved in any way with the
drafting or review of the Nuclear Fuels Management and Disposal
Act by DOE?
Mr. Hill. Yes, I participated in the work at DOE and within
the interagency process on that.
Senator Boxer. Are you aware that the bill could preempt
State public health laws and transportation routing decisions
for nuclear waste?
Mr. Hill. I am aware that there is a provision in that bill
having to do with transportation.
Senator Boxer. As General Counsel of DOE, did you support
or approve the part of that legislation that dealt with the
public health laws being preempted in transportation and
routing decisions being preempted?
Mr. Hill. I and other attorneys in the office and other
non-attorneys at DOE participated in developing that.
Senator Boxer. OK. Well, you will be glad to know that was
my last question. What I am going to do is put in the record a
letter in opposition to that bill signed by the Alliance for
Nuclear Accountability, Alliance for Nuclear Responsibility,
American Rivers, Blue Ridge Environmental Defense League,
Citizen Action Coalition of Indiana, Citizen Alert, Citizens
Awareness Network, Clean Water Action, Colorado Coalition for
the Prevention of Nuclear War, Concerned Citizens for Nuclear
Safety, Friends of the Earth, Grace Policy Institute, Green
peace, National Environmental Trust, NRDC, Nevada Nuclear Waste
Task Force, New Mexico Environmental Law Center, Nuclear Peace
Foundation, Nuclear Energy Information Service, Nukewatch,
Nuclear Watch of New Mexico, Physicians for Social
Responsibility, Sierra Club, Southern Alliance for Clean
Energy, Snake River Alliance, Tri-Valley CAREs, Union of
Concerned Scientists, U.S. Public Interest Research Group, and
Women's Action for New Directions.
The reason I point this out is these are a lot of the
groups that have brought lawsuits successfully. You know, it
seems that we just keep on this same direction of political
decisions in spite of the protective laws that Congress has
passed.
Senator Whitehouse, the floor is yours.
Senator Whitehouse. Thank you.
I wanted to follow my earlier line of questioning just a
little bit further, Mr. Hill. I would like to ask first for
your assessment of the reputation right now of the
Environmental Protection Agency among four separate
constituencies, if you could answer for each one.
The first is EPA career staff. The second is the
environmental community. The third is the environmental bar,
the lawyers and judges that EPA works with and work around EPA.
And the fourth is I would say the political establishment
surrounding EPA that it must work with, particularly the Hill,
us, and the State agencies that are often the EPA either
colleagues or operate under EPA authority in their States--
those four categories.
Mr. Hill. Your question, Senator, is the reputation that
EPA has among those different constituencies at the current
time?
Senator Whitehouse. At the current time, yes.
Mr. Hill. I don't know that I am really qualified to say
what reputation the EPA has among the career EPA staff. I
personally, of course, have worked with different career
attorneys and other officials at EPA over time. I have always
had a good constructive working relationship with them. I don't
know that I have heard them actually say one thing or the other
to me about what they view as being EPA's reputation.
Senator Whitehouse. With respect to the staff, you have no
concerns with respect to the reputation of EPA in that regard?
Mr. Hill. Well, Senator, I think that is a different
question. It is always of concern to me what reputation both
the agency and the senior leadership of an agency have with the
career staff. Again, just speaking about my experience at DOE,
it is important to the mission of DOE and it is important for
us being able to successfully carry out our mission that the
career staff--and of course in my case the career attorneys,
who are 99 percent of the attorneys at the department--have
respect for both me and respect for the department's
leadership.
So I can tell you I believe the respect of the career
employees is a very important thing to have. If I were EPA
General Counsel, I would see what I could do to both assess
that and to improve it to the extent I could.
Senator Whitehouse. But you don't have an opinion on where
that reputation stands right now?
Mr. Hill. All I know about that, Senator, at the current
time is what I might read in a particular report in the
newspapers, and I don't always accept that whatever newspapers
say is 100 percent true.
Senator Whitehouse. As for the other three?
Mr. Hill. The environmental community, I certainly have
read about the environmental community and some of the
prominent environmental organizations--NRDC and so forth--that
have been quite critical of EPA and of some of EPA's decisions.
There are others I have read about at different times where
they have been complimentary of how EPA has been proceeding. I
would say that in that context, the environmental community, at
least according again to the press reports I read, has been
critical of EPA.
I should say that they are sometimes critical of DOE as
well in various things, and we try to work with that. We get
criticized not only by environmental organizations, but by
industry and others as well. We just try to do the best we can.
Senator Whitehouse. Do you think the reputation of EPA with
the environmental community right now is at an unusual point in
its history? I mean, are we looking at sort of an epic low? Is
it a cause for concern? You are sort of suggesting that
sometimes people are mad at us, and sometimes they are not. We
have tough calls to make; no big deal, standard operating
procedure for an agency. There might be something more than the
SOP occasional disputes going on right now.
Mr. Hill. Well, I certainly note, Senator, that some of the
criticisms that have been tendered by various environmental
organizations have been quite strident. And I do believe it is
important for EPA to successfully carry out its mission, to
work cooperatively with a number of those organizations. So I
think it is important that their concerns be listened to and
that EPA seek to work with them, just as with other interested
stakeholders.
Exactly how the reputation of EPA is in relation to how it
has been at different times in the past, I can't really speak
authoritatively to that.
You asked about the environmental bar. I think there really
are two aspects to that. One is of what people's views would be
in terms of what their own particular policy objectives are or
their policy views. The other would be how the attorneys view
the work of the agency as a legal matter.
Senator Whitehouse. Does this crowd know what they are
doing?
Mr. Hill. Right. And I think that it of course would be a
matter of concern to some members of the bar if the agency
decisions are challenged and EPA is losing on those. Of course,
the members of the environmental bar are often both defending
and challenging those decisions from the perspective of
whatever clients they may have in a particular matter.
So again, if I were confirmed as General Counsel, I think
talking with members of the bar, particularly prominent members
of the bar, would be a useful thing for me to do to gain what
their views are and how I could best serve both the bar and EPA
as General Counsel.
Senator Whitehouse. And with State regulators and Congress?
Mr. Hill. In that context, I of course read about the
different stories in connection with oversight or various other
things and the arguments that are made. I think that is
probably a fair term for what is going on between different
members or committees of Congress and EPA on various things.
I know there are a number of difficult issues between EPA
and the Congress, and individual Members of Congress and
different committees. So I think there are a lot of difficult
issues presented in that. Again, if I were confirmed, I have
worked cooperatively with the committees of jurisdiction for
the Department of Energy. We can't always agree on everything,
and sometimes we have to strongly disagree about things. But I
have tried to work as cooperatively as I can, with State
agencies, political officials, as well as regulators, and with
Members of Congress and their staffs. So if I were confirmed, I
would seek to do that at EPA.
Senator Whitehouse. Madam Chair, may I ask unanimous
consent that my opening statement be made a part of the record,
rather than deliver it now.
Senator Boxer. Without objection.
[The prepared statement of Senator Whitehouse follows:]
Statement of Hon. Sheldon Whitehouse, U.S. Senator from
the State of Rhode Island
Thank you, Madam Chairman, and thank you for holding this
hearing to consider David Hill for the position of Assistant
Administrator and General Counsel of the Environmental
Protection Agency. Madam Chairman, this is a very important
hearing because, sadly, EPA is an agency in crisis.
For most of its nearly 4-decade history, Americans could
look to EPA for independent, science-based leadership in the
area of environmental protection. Indeed, in a 1970 press
release setting forth the agency's mission, its first
administrator, William Ruckelshaus, stated unequivocally, and I
quote:
``EPA is an independent agency. It has no obligation to
promote agriculture or commerce; only the critical obligation
to protect and enhance the environment.'' I repeat--"the
critical obligation to protect and enhance the environment.''
However, during the entire Bush administration, and
especially under this administration, EPA has forsaken its
longstanding mission. EPA's decisionmaking process has been
hijacked by those in the White House and the agency who place
the political interests of the Administration and its allies
over any concerns for the environment, the integrity of the
regulatory process, or the public health.
Thus, in recent years, we have seen EPA leadership, in
cahoots with its White House allies:
Falsify data and fabricate results of studies regarding
the safety of the air around the site of the collapse of the
World Trade Center on September 11th;
Selectively edit government reports to convey an
artificial impression of uncertainty in the area of climate
change science, placing the imprimatur of the government of the
United States of America on views soundly rejected by a
resounding majority of the world's scientific community;
Routinely tamper with regulatory and scientific processes
in order to achieve results sought by industry, at the expense
of the environment;
Hide, suppress, and delay the release of scientific
findings in order to affect agency decisionmaking, as in the
case of a 2002 report on the effects of mercury on children's
health;
Disregard or delay legally mandated scientific and
administrative procedures, as in the case of the agency's
failure to abide by the Supreme Court's recent decision on
Greenhouse Gas Emissions;
Stock the EPA's leadership and its advisory committees
with persons who have clear ties to industries affected by
agency decisions, removing from these positions respected
scientists who argued for stronger regulation of industry;
Reduce the reporting burdens on industries involved in
the release of toxic chemicals into our land, sea and air;
Ignore the recommendations of career staff and scientists
when they collided with White House political imperatives, as
in the case of the agency's decision on the so-called
California wavier;
Weaken enforcement and monitoring by opening fewer
criminal investigations, filing fewer lawsuits, and levying
smaller fines against corporate polluters; and
Fail to protect, and indeed seek reprisals against,
agency employees who point out problems, report legal
violations, and attempt to correct factual misrepresentations
made by their superiors.
These are just some of the examples of the ways in which
this Administration, and this Administrator, has compromised
the mission of EPA to serve its own political, anti-environment
agenda.
The consequences of this Administration's conduct are dire
indeed:
First, the Administration's elevation of industry interests
at the expense of independent, science-based decisionmaking
threatens our ability to respond to complex challenges to
public health, the environment, and national security.
Second, the Administration's conduct demoralizes EPA's
professional workforce--he scientists, lawyers, and regulatory
experts to whom EPA owes its reputation as the gold standard in
the area of environmental policy and who, time and time again
during this Administration, have seen their expert counsel set
aside in favor of a partisan political agenda.
Third, and perhaps most importantly, the Administration's
conduct compromises average Americans faith in the integrity of
their government, and promotes the idea that in Washington,
policy is always made by the special interests and never for
the public good or according to the dictates of science and
law.
This is a serious failure of leadership with the potential
for lasting harm to our environment and the confidence of the
American people. I plan on looking further into this issue, and
the challenges facing the next Administration in repairing the
damage caused by this Administration in the upcoming months.
The committee now has before it David Hill, the President's
nominee for one of the highest-ranking positions at EPA--the
position of Assistant Administrator and General Counsel.
EPA's General Counsel is the chief legal advisor to the
agency, providing legal support for agency rules, policies, and
decisions, and articulating the agency's position before the
courts. The person who fills this position has the
responsibility to ensure that agency decisions and positions
are firmly grounded in law, science and fact, and not held
hostage to a partisan political agenda. An agency general
counsel is not like a corporate general counsel, whose main
role is to looking after the interests, and do the bidding, of
his client even if that bidding skirts the margins of the law.
An agency general counsel is the steward of the public good--
including, in EPA's case, the public health-- , not just an
advocate for the results sought by his or her client. It is
critical that the EPA's General Counsel understand and respect
this crucial distinction. Unfortunately, the outgoing EPA
General Counsel, Mr. Martella, appears not to have appreciated
this distinction.
My measuring stick for Mr. Hill's nomination will be
whether he does understand that distinction. I have concerns,
based on the information I have reviewed, that he does not. We
need a General Counsel at EPA who is prepared to help the
agency regain the stature and independence that it has lost
during this Administration, to restore the Agency's commitment
to the rule of law and science, and to help it fulfill the
mission announced for it in 1970 by Administrator Ruckelshaus.
I look forward to discussing my concerns with Mr. Hill.
Senator Whitehouse. I would just sum up by offering my own
personal observation of where we are. My own personal
observation is that at present the integrity of the
Environmental Protection Agency at its senior levels is shot. I
see the abysmal litigation record of the Environmental
Protection Agency, the scornful remarks of career United States
judges as to its theories, and the lack of any follow--up or
apparent concern on the part of EPA about all that--just sort
of blandly going ahead.
It is all leading to a conclusion that the current
management of the EPA is perfectly satisfied with losing all
these cases because it no longer cares to win. It no longer
even cares to get it right. Its sole job is to do what it
perceives to be the political bidding of the Administration;
that this is a department that has completely and utterly taken
a dive into the tank.
I think that is a very difficult position for a new General
Counsel to go into. You have independent obligations as a
member of the bar regarding the circumstances you have around
yourself in a corporate context. You would have obligations for
quiet and noisy exits if you felt that there were improper
conduct going on.
I take this terribly seriously because I come to this job
and from my whole life experience with the very, very strong
belief that the government of the United States of America is
probably the most powerful and important force for good on the
face of the Earth. And one of the reasons that it is that way
is because of ways in which we have detracted from the powers
of the President or of leaders of Congress; the ways we have
separated those powers; the ways we have set up independent
agencies; the very nature of administrative law that you don't
just do what the President says. We set up certain agencies
that have the purpose of doing what is right, what the facts
dictate, what the science dictates, and what the law demands,
and that comes first.
And when I see those principles attacked, ignored, abused,
rejected, I see an assault on something that is much larger
than just the current issue and trying to make things nice for
the political interests behind this President. It really
affects back to where I started. It undercuts and corrodes the
greatest force for good on the face of this human Earth that we
inhabit right now.
I just want to close by saying how very troubled I am right
now by what is going on at the Environmental Protection Agency.
I am on the Judiciary Committee as well. We have had a very
similar problem at the Department of Justice that caused the
Attorney General and his entire senior staff ultimately to
resign. I see far more similarities than differences right now
between the posture of the Administrator of EPA and the senior
staff, the political staff there, than differences from what I
saw at the Department of Justice.
I would really urge you to go in there with your head up on
full alert as to the nature of the organization you are going
into, and with a keen personal regard for your own reputation
and for the obligations that you have a member of the bar to
adhere to certain minimum core professional standards no matter
what is going on around you, and no matter where the directive
is coming from.
I just caution you in that regard because I am very, very
concerned about what is going on. This is an agency with an
enormously proud history. I see particularly in those four
areas a reputation that is just in tatters and a community of
interests around this organization that just says forget it,
let's just wait until we can get new and decent people here and
start fresh next year. And that is a very, very sad thing for
me to see.
Senator Boxer. Senator, thank you for your remarks. You
absolutely speak for me. When I opened up my statement, I
quoted President Nixon, who said that the EPA should be ``a
strong independent agency.'' And then in questioning Mr. Hill--
I mean, he has been very straightforward with us--he said,
look, the Administrator works for the President.
There is a fine line here. The Administrator is supposed to
do what is right for public health. This is the root of the
problem. We have had all of these political decisions made over
there and they have been overturned by the courts time in and
time out. When I have asked Mr. Hill about a few cases he is
aware of, he hasn't agreed with the courts. These aren't
liberal courts. The D.C. Circuit Court is far from a liberal
court, with Janice Rogers Brown joining in on some of these
decisions.
Now, I do have one more question regarding--this registry
is of concern to me, rather the radiation standard at Yucca. So
I want to ask you, you didn't agree with the court decision
regarding the radiation standard at Yucca. My question is, have
you discussed this with the Department of Justice? Setting the
rules consistent with the court?
Mr. Hill. The decision of the D.C. Circuit in that
particular matter I believe is final. And so then back in 2005,
I believe it was 2005, the EPA published a notice of proposed
rulemaking to address the decision and there have been various
discussions since then.
Senator Boxer. But that rule has not been set. It is years.
So it is still hanging out there. Have you been involved in any
discussions about the rule?
Mr. Hill. There have been interagency discussions on that
matter, yes.
Senator Boxer. Have you discussed it with the Justice
Department?
Mr. Hill. There have been discussions involving all of the
interested agencies.
Senator Boxer. Have you discussed it with the Justice
Department in particular?
Mr. Hill. The Justice Department has been in some of those
discussions, yes.
Senator Boxer. OK. Have you discussed it with OMB?
Mr. Hill. OMB and other agencies have been involved in
those discussions.
Senator Boxer. Do you agree with the Justice Department's
view on how the rule ought to proceed?
Mr. Hill. That matter hasn't been finalized, Madam
Chairman, and so I don't feel at liberty to talk about the
details of those discussions.
Senator Boxer. Have you put anything in writing about your
views and sent it to Justice or OMB or anybody else on this
rule?
Mr. Hill. I don't remember whether I have. I may have.
Senator Boxer. I would like to have copies of those if I
might. If you could get that to us, we would be very
appreciative on this.
Well, let me just say, you know, I appreciate your
frankness with the Committee. I don't agree with your view of
your role. I think you are basically telling me, and as I say,
I do appreciate your straightforward way you see your role, and
the way you see the Administrator's role. You are on the record
advocating against the public right to know in the Savannah
case, for secrecy in the Savannah case. You were overruled by
the NRC at the end of the day.
And so I know that you certainly have the qualifications to
be the choice here, but we are going to have to do some careful
thinking about this. But we do appreciate your honesty with the
Committee. We look forward to receiving some of these documents
I have requested.
I have to ask you just two boilerplate questions so we can
move this forward. In order for the Committee and other
committees to exercise their legislative and oversight
responsibilities, it is important that committees of Congress
are able to receive testimony, briefings, and other
communications, which you promised me you would send.
So, one, do you agree if confirmed as EPA General Counsel
to appear before this Committee or designated members of this
Committee and other appropriate committees of the Congress and
provide information, subject to appropriate necessary security
protection, with respect to your responsibilities as General
Counsel?
Mr. Hill. Yes.
Senator Boxer. Do you agree when asked to give your
personal views, even if those views differ from the
Administration in office at the time?
Mr. Hill. I would, Madam Chairman.
Senator Boxer. Three, do you agree to ensure that
testimony, briefings, documents, and electronic and other forms
of communication of information are provided to this Committee
and its staff and other appropriate committees in a timely
manner?
Mr. Hill. I would try to do that, Madam Chairman.
Senator Boxer. And four, do you know of any matters which
you may or may not have disclosed that might place you in any
conflict of interest if you are confirmed as General Counsel?
Mr. Hill. No.
Senator Boxer. OK. Well, we do thank you. We thank your
family for coming. I thank Senator Whitehouse and other
colleagues who joined me.
We stand adjourned.
Thank you, Mr. Hill.
[Whereupon, at 10:27 a.m. the committee was adjourned.]
Statement of Hon. Benjamin L. Cardin, U.S. Senator from
the State of Maryland
Thank you for holding this hearing today. Today we'll hear
testimony from David Hill, nominee for the General Counsel of
EPA. The EPA's office of General Counsel provides legal
guidance on the Agency's rules and policies as well as support
for the Agency's permits and response actions. Given the
testimony we heard yesterday regarding the Clean Water
Restoration Act and testimony we've heard over the last year
from EPA regarding the California waiver and other issues, it
is clear that we need clarity and timeliness in EPA's
rulemaking. Moreover, we need the decisions and rules the EPA
makes to be scientifically justifiable and legally defensible.
I look forward to hearing Mr. Hill's testimony on view of
his role as General Counsel of the EPA. I am further interested
in Mr. Hill's perspective of his being a forceful legal
advocate for the well considered, scientifically based rules
the EPA enforces.
Thank you Madame Chairman.
Statement of Hon. Thomas R. Carper, U.S. Senator from
the State of Delaware
On Sept. 29, 2000 in Saginaw, Michigan, then-Governor Bush
made the following campaign promise. If he were to become
President he pledged to ``require all power plants to meet
clean air standards in order to reduce emissions of sulfur
dioxide, nitrogen dioxide, mercury and carbon dioxide within a
reasonable period of time.''
Unfortunately, less than 60 days after taking office,
President Bush began backing away from that pledge.
In a March 13, 2001 letter President Bush said, ``I intend
to work with the Congress on a multi-pollutant strategy to
require power plants to reduce emissions of sulfur dioxide,
nitrogen oxides, and mercury. I do not believe, however, that
the government should impose on power plants mandatory
emissions reductions for carbon dioxide, which is not a
``pollutant'' under the Clean Air Act.''
Unfortunately, in 2005, President Bush continued to pull
away from his initial pledge. He decided not to work with
Congress on a multi-pollutant strategy, and his Clear Skies
proposal failed because it would not have improved the
environment and ignored carbon dioxide. He then attempted to
implement his Clear Skies proposal through regulation in the
form of the Clean Air InterState Rule and the Clean Air Mercury
Rule.
One year ago, the Supreme Court rejected the President's
position that carbon dioxide is not a pollutant. The Supreme
Court told EPA that their decision not to regulate carbon
dioxide ``rests on reasoning divorced from the [Clean Air
Act].'' In other words, the Supreme Court decided that EPA
failed to follow the clear directives of the law.
In 2006, the D.C. Circuit Court concluded that EPA's
attempt to weaken the regulation known as New Source Review
would make sense ``only in a Humpty Dumpty world.'' And in
February of this year, the D.C. Circuit vacated the Clean Air
Mercury Rule. In their decision the court said EPA's Mercury
Rule was based on ``the logic of the Queen of Hearts,
substituting the EPA's desires for the plain text'' of the law.
In my opinion, this was a welcome decision. The Clean Air
Mercury Rule was deeply flawed and did not go far enough to
protect the public's health. EPA should have regulated mercury
as a hazardous air pollutant and imposed regulations that would
require every covered power plant to install best available
controls to reduce their mercury emissions.
Finally, late last month, the DC Court heard oral arguments
on a challenge to the Clean Air InterState Rule, and many
believe the Court could overturn that rule as well. Given EPA's
track record in the courts, I'd say it is very likely. In
short, we are no closer to cleaner air than we were in 2000.
What this means is that in the 8 years since then Governor-
Bush promised to address all four major pollutants from power
plants: 190,000 people have died prematurely due to air
pollution, 5 million babies have been exposed to dangerous
mercury levels in the womb, 580 million hours of work have been
missed because of asthma and other respiratory diseases, and
countless dollars has been spent on health care treating the
many illnesses these pollutants cause. That is not an
environmental legacy to be proud of.
Given the fact that the EPA has had so many of its
proposals overturned by the courts, I think it is an
understatement to say that EPA has suffered from some bad legal
advice. The Supreme Court and the District Courts have
repeatedly chastised EPA for failing to follow the law and
making Alice in Wonderland types of interpretations of the
Clean Air Act. Mr. Hill, this is the legacy of the position you
are seeking to fill.
I sincerely hope that if you are confirmed as EPA's next
General Counsel, you will follow through with the commitment
made in your written statement to help the agency advance its
mission of protecting human health and the environment in a
manner that fully complies with the law.
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